Opinion
No. 72-1016.
September 14, 1973.
Appeal from the Circuit Court, Palm Beach County, James R. Stewart, Jr.,
Richard L. Jorandby, Public Defender, Bruce J. Daniels and Kenneth J. Scherer, Asst. Public Defenders, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Donald K. Rudser and George R. Georgieff, Asst. Attys. Gen., Tallahassee, for appellee.
In this appeal defendant contends the trial court erred in refusing to charge the jury on the doctrine of non-necessity of retreat. It is the state's position that this doctrine does not apply to a situation where both parties are on the premises in question with equal authority and control. The identical contention of the state was considered and rejected in Watkins v. State, Fla.App. 1967, 197 So.2d 312, wherein this court held that refusal to charge the jury, when properly requested, was prejudicial error. Accordingly, the judgment and sentence imposed is reversed with directions to grant defendant a new trial.
Although defense counsel did not object to the trial court's failure to give the instruction, defense counsel did request such an instruction at the charge conference held in the judge's chambers. F.S. Sec. 918.10(4), F.S.A., relating to the necessity of objecting to the giving or failure to give an instruction was repealed in 1970 and was not in effect at the time of defendant's trial. Such provision however was re-adopted as Rule 3.390, F.R.C.P., 33 F.S.A., but did not become effective until February 1, 1973.
OWEN, C.J., and CROSS and MAGER, JJ., concur.