English v. State

740 So.2d 589 (1999)

Alvoid Lormet ENGLISH, Appellant,
v.
The STATE of Florida, Appellee.

No. 99-52.

District Court of Appeal of Florida, Third District.

August 18, 1999.

Bennett H. Brummer, Public Defender, and Shaundra L. Kellam, Special Assistant Public Defender and Beth C. Weitzner, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.

Before COPE, LEVY, and GREEN, JJ.

PER CURIAM.

Appellant appeals his conviction for purchase and possession of cocaine, alleging that the trial court erred in denying his peremptory strike of a venireperson who, defense counsel claimed, rolled his eyes, and did not seem to understand or like defense counsel's questions and the concepts he raised. We agree and reverse.

The trial court did not deny that the venireperson exhibited defense counsel's proffered behavior. Instead the trial court noted "I didn't see any of the things that you say you saw, not that you didn't see them. I just didn't see them." In effect, the court acknowledged that the venireperson exhibited the objected behaviors, but denied the strike because he did not personally observe the behavior. If the venireperson did exhibit the complained of behavior, defense counsel's reason was race-neutral and was not pretextual. The strike should have been permitted. Melbourne v. State, 679 So.2d 759 (Fla.1996); Dean v. State, 703 So.2d 1180 (Fla. 3d DCA 1997). We reverse and remand for a new trial. In view of the foregoing, we need not reach the other issue. Reversed.