Burch v. State

774 So. 2d 46, 2000 WL 1514114

Opinion

774 So.2d 46 (2000)

Kary BURCH, Appellant,
v.
STATE of Florida, Appellee.

No. 2D99-4213.

District Court of Appeal of Florida, Second District.

October 13, 2000.

James Marion Moorman, Public Defender, and Patricia J. Kelly, Special Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Stephen D. Ake, Assistant Attorney General, Tampa, for Appellee.

STRINGER, Judge.

Appellant, Kary Burch, challenges his conviction and sentence for aggravated battery. Appellant alleges that the trial court erred when it instructed the jury, over objection, that appellant, a co-occupant of the premises, had a duty to retreat. The instruction given by the trial court did not comply with the instruction adopted by the supreme court in Weiand v. State, 732 So.2d 1044 (Fla.1999). Therefore, we reverse and remand this case for a new trial. See Barkley v. State, 750 So.2d 755 (Fla. 2d DCA 2000); see also Kelly v. State, 746 So.2d 1248 (Fla. 1st DCA 1999).

Reversed and remanded.

WHATLEY, A.C.J., and DAVIS, J., Concur.