Opinion
No. 84-1084.
February 13, 1985.
Appeal from the Circuit Court for Palm Beach County, John E. Born, J.
Sara Blumberg and Michael Dubiner of Dubiner Blumberg, P.A., West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant seeks reversal of her conviction of second degree murder. She claims that the trial court erred in refusing to instruct the jury on justifiable and excusable homicide, and in failing to give an instruction which properly placed the burden of proof upon the State as to her insanity defense. When the court gives an instruction on manslaughter, it must also give an instruction on justifiable and excusable homicide. See Hedges v. State, 172 So.2d 824 (Fla. 1965); Pouk v. State, 359 So.2d 929 (Fla. 2d DCA 1978); Delaford v. State, 449 So.2d 983 (Fla. 2d DCA 1984). Therefore, we hold that the trial court erred when it failed to properly instruct the jury, and we reverse and remand this case for a new trial. Because of this holding we need not reach appellant's second point on appeal.
REVERSED and REMANDED.
HERSEY, HURLEY and DELL, JJ., concur.