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Kelly v. State

District Court of Appeal of Florida, First District
Jun 15, 1979
371 So. 2d 162 (Fla. Dist. Ct. App. 1979)

Summary

reversing and remanding for new trial where several members had been in previous venire that week when jury was chosen for defendant's trial on different charges

Summary of this case from Brower v. State

Opinion

No. JJ-43.

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

Appeal from the Circuit Court, Escambia County, Erwin Fleet, J.

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.


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.


Summaries of

Kelly v. State

District Court of Appeal of Florida, First District
Jun 15, 1979
371 So. 2d 162 (Fla. Dist. Ct. App. 1979)

reversing and remanding for new trial where several members had been in previous venire that week when jury was chosen for defendant's trial on different charges

Summary of this case from Brower v. State

disallowing overlapping venires because the trial judge refused to allow questioning of individual veniremen to insure lack of prejudice and because several veniremen approached the bench and told the judge that they could not be impartial because of their familiarity with previous trial

Summary of this case from State v. Harper
Case details for

Kelly v. State

Case Details

Full title:TEDDY WARREN KELLY, SR., APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Jun 15, 1979

Citations

371 So. 2d 162 (Fla. Dist. Ct. App. 1979)

Citing Cases

State v. Harper

Cf. United States v. Phillips, 577 F.2d 688 (10th Cir. 1978). But see Kelly v. State, 371 So.2d 162 (Fla.App.…

Pender v. State

Cases cited by appellant, although not totally on point, do support his argument that a "jury is bound to be…