Leigh v. State , 4D10–1032.

• Decision Date: 13 April 2011
• Docket Number: No. 4D10–1032.,4D10–1032.
• Citation: 58 So.3d 396
• Parties: Philip LEIGH, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

58 So.3d 396

Philip LEIGH, Appellant,

v.STATE of Florida, Appellee.

No. 4D10–1032.

District Court of Appeal of Florida, Fourth District.

April 13, 2011.

Philip Leigh, Lake City, pro se.Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.PER CURIAM.

Philip Leigh (Defendant) appeals from an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We reverse only as to the eighth ground raised in his motion, and affirm without discussion as to his other grounds for relief.

Following a jury trial, Defendant was found guilty of trafficking in cocaine and conspiracy to traffic in the same quantity of cocaine. In his timely rule 3.850 motion for postconviction relief, he raised eleven grounds for relief. The trial court summarily denied the motion and Defendant appealed.

In his eighth ground, Defendant claimed his trial counsel was ineffective for allowing him to appear in a leg restraint and for failing to object to the presence of a dog. He alleged that the jury was aware he was wearing some sort of leg restraint; it was supposed to be concealed under his trousers, but its size and bulk made concealment impossible; it marked him as a dangerous character, affecting his presumption of innocence.

Furthermore, the jury was aware of the presence of a dog in the courtroom because, on more than one occasion, the presiding judge, the Honorable Susan Lebow, had to correct her dog, which was whining and barking, and on more than one occasion, the dog put its front paws on the swing door that separated it from the courtroom where the judge was presiding, suggesting to the jury that the dog was present for the safety of the court, unnecessarily marking Defendant as a dangerous character.

“Allowing a defendant to appear before the jury in restraint devices is an inherently prejudicial practice that undermines the presumption of innocence and the right to a fair trial.” Miller v. State, 852 So.2d 904, 905 (Fla. 4th DCA 2003) (reversing summary denial of postconviction motion with respect to defendant's claim that his trial counsel had been ineffective for failing to object to his appearing before the jury in restraint devices, which were obvious to at least one witness, and remanding for an evidentiary hearing or the attachment of portions of the record that conclusively refuted the claim); Jensen v. State...