Summary
In Page v. State, 398 So.2d 859 (Fla.3d DCA 1981), the district court reversed a conviction because of failure to give the defense-proffered jury instruction concerning the privilege of nonretreat in the home.
Summary of this case from State v. PageOpinion
No. 80-475.
April 28, 1981. Rehearing Denied June 3, 1981.
Appeal from the Circuit Court, Dade County, John A. Tanksley, J.
Bennett H. Brummer, Public Defender, and Michael A. Rosen, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
Before HENDRY, SCHWARTZ and NESBITT, JJ.
We reverse appellant's first degree murder conviction on the ground that the defense's proffered jury instruction concerning the privilege of non-retreat in the home should have been given because the doctrine applies to premises surrounding the home, Pell v. State, 97 Fla. 650, 122 So. 110 (1929); Danford v. State, 53 Fla. 4, 43 So. 593 (1907); Redondo v. State, 380 So.2d 1107 (Fla. 3d DCA), cert. denied, 388 So.2d 1118 (Fla. 1980), and to co-occupants as well as intruders, Hedges v. State, 172 So.2d 824 (Fla. 1965); State v. Bobbitt, 389 So.2d 1094 (Fla. 1st DCA 1980).
The trial court's dismissal of the second and third counts of the indictment, display of a firearm while committing of felony, and unlawful possession of a firearm by a convicted felon, is also reversed upon the authority of State v. Thompson, 390 So.2d 715 (Fla. 1980), holding that the state is not required to prove the lack of an exemption as an element of the offense.
Reversed and remanded for new trial.