FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-1573

_____________________________

BOBBY KEVIN WILLIAMS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Santa Rosa County.

John F. Simon, Judge.

July 11, 2018

PER CURIAM.

Following a jury trial, Bobby Kevin Williams was convicted of 

grand theft and failure to appear. This Court affirmed his

judgment and sentence. Williams now challenges the final order of 

the postconviction court on his claims of ineffective assistance of 

trial counsel. We agree with the court’s assessment of all but one 

of his claims. 

In his first claim, Williams alleged that during jury 

deliberations, when neither defense counsel nor the trial judge was 

present, the jury asked to review the surveillance video in 

evidence. The prosecutor responded by informing the bailiff that 

the jury could view the recording on the court’s video player. The 

bailiff returned a few minutes later and informed the prosecutor
2

that the video player was not working properly. The prosecutor 

then accompanied the bailiff into the jury room to show the jurors 

how to view the video on the prosecutor’s laptop. When defense 

counsel returned, Williams told counsel about what had happened, 

but counsel declined to bring the issue to the court’s attention. 

Williams attached two witness affidavits to his motion to support 

his claim. He submits that he was deprived of a fair and impartial 

trial due to counsel’s inaction in the face of clear prosecutorial 

misconduct.

The postconviction court determined that the claim was 

facially insufficient because it failed to properly allege prejudice. 

After giving Williams two opportunities to amend, the court

dismissed the claim with prejudice.

To state a facially sufficient claim of ineffective assistance of 

counsel, the movant must allege deficient performance on the part 

of trial counsel and prejudice resulting from that deficient 

performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Accepting Williams’s allegations as true, which we must do at this 

stage of our review, see Flagg v. State, 179 So. 3d 394, 396 (Fla. 1st 

DCA 2015), we conclude that it was error for the court to dismiss 

this claim. See Brown v. State, 538 So. 2d 833, 836 (Fla. 1989) 

(“[C]ommunications from the jury must be received by the trial 

judge in person and . . . the absence of the judge when a 

communication is received and answered is reversible error.”); 

Harbaugh v. State, 711 So. 2d 77, 80 (Fla. 4th DCA 1998) (“[A] trial 

judge is required to be present at any aspect of the trial where the 

lawyers or the parties are in extended contact with the jury, unless 

the defendant himself makes a sufficient waiver on the record of 

the judge's presence.”). 

We therefore reverse the dismissal of this claim and remand 

for the court either to attach records that conclusively refute the 

allegations or to conduct an evidentiary hearing to determine the 

merits of the claim. The order is affirmed in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED with 

directions. 

B.L. THOMAS, C.J., and WOLF and RAY, JJ., concur.
3

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Kerry Adkison, Chipley, for Appellant.

Pamela Jo Bondi, Attorney General, and Robert "Charlie" Lee, 

Assistant Attorney General, Tallahassee, for Appellee.