Burnias v. State

190 So. 2d 612, 1966 Fla. App. LEXIS 4939

• Court: District Court of Appeal of Florida
• Decided: October 11, 1966
• Docket: No. 66-27
• Status: Published

Opinion

PER CURIAM.

The appellant, by this appeal, seeks review of a guilty verdict, adjudication and sentence in a homicide case. The point relied on for appeal is error on the part of the trial court in giving an instruction requested by the State, which reads as follows :

“Gentlemen of the Jury, the Court instructs you that before a person can avail himself of the defense that he used a deadly weapon in defense of his life, he must satisfy the jury that the defense was necessary at the time and that he did all he could to avoid it, and that it was necessary to protect his own life, or protect himself from great bodily harm, as would give him reasonable apprehension that his life was in imminent danger.”

It is apparent, under the decision of the Supreme Court of Florida in Lane v. State, 44 Fla. 105, 32 So. 896, and this court’s opinion in McDaniel v. State, Fla.App.1965, 179 So.2d 576, that the complained of instruction is erroneous and prejudicial.¹

Therefore, the verdict, adjudication and sentence here under review is hereby reversed, and this cause is remanded to the trial court for the purpose of a new trial.

Reversed and remanded with directions.

1 . It is noted that the proceedings in this matter in the trial court were concluded prior to the release of this court’s opinion in McDaniel v. State, supra.