Kelly v. State

371 So. 2d 162 (1979)

Teddy Warren KELLY, Sr., Appellant,
v.
STATE of Florida, Appellee.

No. JJ-43.

District Court of Appeal of Florida, First District.

April 19, 1979. Rehearing Denied June 15, 1979.

Michael J. Minerva, Public Defender, and Janice G. Scott and John D.C. Newton, II, Asst. Public Defenders, for appellant.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellant seeks reversal of his conviction for burglary and grand larceny, arguing six points on appeal. We find that the trial court committed error in the jury selection process and reverse on that ground.

The record reveals that several members of the jury venire from which the jury was chosen in this case had been present earlier in the week when a jury was chosen for an earlier trial of appellant on different charges. Appellant's counsel moved prior to trial to strike the jury panel in this case on that basis. The court took the motion under advisement but nevertheless swore the panel. Subsequently during voir dire, appellant's counsel asked the court's permission to question certain of the jurors separately to minimize any knowledge of the previous trial against appellant, but the trial court denied that request. The record also indicates that a prospective juror independently approached the bench and told the court that he did not believe appellant could receive a fair trial in view of the panel's familiarity with the previous trial.

It is fundamental that every defendant is entitled to be tried by a fair and impartial jury. In Marrero v. State, 343 So. 2d 883 (Fla. 2d DCA 1977), the court reversed a conviction in an almost identical situation, finding that a jury is "bound to be unfairly prejudiced against the accused by reason of the knowledge of his arrest for another crime." We concur with that reasoning here, and accordingly reverse the judgment with instructions to grant a new trial.

We have considered appellant's other points and found them to be without merit or not properly preserved for appeal.

REVERSED and REMANDED.

McCORD, C.J., and BOOTH and LARRY G. SMITH, JJ., concur.