IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

STANLEY L. COLLINS ,

Appellant ,
v. Case No. 5D 15

- 3916 STATE OF FLORIDA ,

Appellee

. ________________________________/ Opinion filed June 24 , 2016 3.850 Appeal from the Circuit Court for Volusia County , Randell H. Rowe, II I , Judge. Stanley L. Collins, Bristol, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Ass istant Attorney General, Daytona Beach, for Appellee.

EDWARDS , J. Stanley Collins appeals the summary denial of his m otion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the circuit court’s summary denial of the second a nd fifth grounds for relief, and affirm the granting of Appellant ’ s fourth ground for relief

. We reverse the circuit court ’ s summary denial of the
fir st and third grounds for relief.2

In his motion for postcon viction relief, Appellant assert s that he received and was prejudiced by ineffective assistance of his trial counsel

. In order to establish ineffective assistance of counsel, Appellant must meet the two prongs of the Strickland test:

First, the defendant must show that counsel ’ s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the

“ counsel ” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the defi cient performance prejudiced the defense. This requires showing that counsel ’ s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington , 466 U.S. 668, 687 (1984). “ Unless a defendant m akes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. ” Id. To satisfy the first prong, Appellant must establish that “ counsel ’ s repres entation ‘ fell below an objective standard of reasonableness. ’” Sochor v. State , 883 So. 2d 766 , 771 (Fla. 2004) (citing Strickland , 466 U.S. at 688). The second prong is met when “ there is a reasonable probability that,
but for counsel ’ s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome

. ” Strickland , 466 U.S. at 694. “ Ineffective assistance of counsel claims are mixed questions of law and fact. ” Bell v. State , 965 So. 2d 48, 56 (Fla. 2007). The appellate court reviews “ the legal issues under a de novo standard of review ” while the
trial court ’ s “ factual determinations are given deference if they are supported by competent, substantial evidence. ” Id.

PREEMPTIVE DISCLOSURE OF PRIOR FELONY CONVICTIONS Appellant was charged with and convicted of, inter alia, possession of a firearm by a convicted felon. In the first ground of his motion, Appellant complains that defense3

counsel did not properly advise hi m of his Fifth A mendment right to remain silent and not testify in his own defense. He claims that if he had been properly advised of this right, he would not have testified. Appellant as serts that he was prejudiced by this alleged ineffective assistance of counsel because during direct examination, defense counsel

e licited testimony from Appellant that he had prior felony convictions. The Florida Supreme Court has held that it is appropriate, common, and not deficient for defense counsel to question the ir clients about prior felony convictions in order to preempt the State ’ s anticipated impeachment of the def endant during cross - examination. See Lawhome v. State , 50 0 So. 2d 519, 520 (Fla. 1986) (approving of the use of ‘“ anticipatory
rehabilitation ’ to ‘ take the wind out of the sails ’ of an attack on credibility or to ‘ soften the
blow ’ of anticipated inquiries or revelation expected to be damages to the credibility of the
witness. ” (citing Bell v. State , 491 So. 2d 537, 538 (Fla. 1986) ). Appellant argues , however, that the anticipatory rehabilitation by defense counsel in this case amounted to a stipulation that effectively relieved the S tate of its burden of proving Appellant ’ s prior felony conviction, which is an element of the charged crime and not simply a matter of impeachment. Brown v. State , 719 So. 2d 882 (Fla. 1998) , holds
that in a felon

- in

- possession of a firearm case , the defendant may stipulate to his prior felony convictions to avoid having the S tate offer proof to the jury as to the nature and number of defendant ’ s prior felony convictions

. 1 719 So. 2d at 889. However, if such a stipulation is offered, Brown requires the defendant, outside the presence of the jury and

1 The State is permitted to place into the record proof of the defendant ’ s felony judgments and sentences , but neither th e aforementioned documents nor the number and nature of the convictions are to be provided to the jury wher e a stipulation has been made. Brown v. State , 719 So. 2d 882, 889 (Fla. 1998 ).4

after consultation with counsel, “ to personally acknowledge the st ipulation and his voluntary waiver of his right to have the S tate otherwise prove the convicted felony status element beyond a reasonable doubt

. ” Id. The records attached to the trial court ’ s order
do not include a Brown stipulation acknowledge ment by Appellant. Thus, we remand for the postconviction court to attach copies of the record showing that Appellant made a Brown stipulation acknowledge ment or to conduct an evidentiary hearing to determine whether Appellant made a nd acknowledged a Brown sti pulation. SLEEPING JUROR
In the third ground of his motion for postconviction relief , Appellant a lleges that a juror fell asleep. He contends that he informed defense counsel of the sleeping juror , but
that counsel failed to make any objection or to seek r emoval of that juror. Appellant argues that he was prejudiced because the sleeping juror missed Appellant ’ s testimony , which allegedly supported one of Appellant ’ s defenses. Typically, a claim of ineffective
assistance of counsel for failing to object to a sleeping juror should not be s ummarily
denied

. See McGraw v. State , 796 So. 2d 12 05, 1206 (Fla. 4th DCA 2001) ( “ It is usually improper to summarily deny a claim that counsel failed to act upon being informed that a juror was sl eeping during trial. ” ).
I n Virgo v. State , 120 So . 3d 23 (Fla. 4th DCA 2013), the Fourth District Court of Appeal entertained an argument nearly identical to the one before this court. In Virgo , the defendant alleged that : (i) he complained to his defens e counsel that a juror was sleeping; (ii) defense counsel advised him that the ju ror was merely resting his eyes and
that the trial court would not view an objection favorably; and (iii) due to the j uror ’ s continued inability to stay awake, the juror misse d important testimony

. 120 So. 2d at 25

.5

Given those allegations, the Fourth District Court of Appeal reversed and remand ed for an evidentiary hearing. Id

. (citing Reynolds v. State , 99 So. 3d 459, 481 (Fla. 2012) ). The State has commendably conceded error and agrees that an evidentiary hearing is required. We reverse and remand for an evidentiary hearing on the sleeping juror issue. AFFIRMED IN PART, REVERSED IN PART, REMANDED FOR FURTHER PROCEEDINGS.

PALMER and WALLIS JJ., concur.