STATE OF FLORIDA, PETITIONER,
v.
HENRY LEE PAGE, RESPONDENT
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Florida Supreme Court held that the privilege of nonretreat in one's home does not apply when an assault occurs in a common area (shared walkway) where both parties have equal legal rights to be present. The Court reversed the district court's reversal of Page's murder conviction and rejected the instruction on the duty to retreat.
The nonduty to retreat instruction does not apply in situations where both parties have equal rights to be in a common area. The standard self-defense instruction is adequate, and the defense-of-the-home instruction should not be given in such circumstances.
[1] The privilege of nonretreat in the home does not apply when an assault occurs in a common passageway to which both the assailant and the victim have equal rights of use.
[2] A defendant is not entitled to a jury instruction on the duty to retreat when the altercation occurs in a common area, even if the defendant has one foot inside their dwe…
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Join FLexlaw to unlock all legal intelligence“where the assailant and the victim are both legal occupants of the same house the privilege of nonretreat does not apply and the defense-of-the-home instruction need not be given”
Establishes the core holding that equal occupancy rights eliminate the nonretreat privilege
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Join FLexlaw to unlock all legal intelligencePage and his victim lived in adjoining apartments in a four-unit building sharing a common concrete walkway porch. Shortly before the fatal shooting, …
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McDONALD, Justice.
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. Perceiving conflict with Conner v. State, 361 So. 2d 774 (Fla. 4th DCA 1978), cert. denied, 368 So. 2d 1364 (Fla.1979), we accepted jurisdiction.1 We quash the district court’s reversing the murder conviction.
Page and his victim occupied adjoining apartments which share a common walkway running along the front of the apartments.2 The fatal shooting took place on this common walkway and had been precipitated by an altercation between the parties shortly before the shooting wherein the victim had choked Page. At trial Page claimed self-defense and especially requested the nonduty to retreat instruction.
The question thus is whether the nonduty to retreat instruction applies to a situation where an assault takes place on a common walkway when both the assailant and the victim have equal rights to use that walkway. We recently held in State v. Bobbitt, 415 So. 2d 724 (Fla.1982), that where the assailant and the victim are both legal occupants of the same house the privilege of nonretreat does not apply and the defense-of-the-home instruction need not be given. We find that the rationale behind Bobbitt should also apply to the facts of this case and that the cases relied on by the district court3 are not applicable to the instant factual situation.
Had Page retreated inside his door, he would have been entitled to the requested instruction. He could not, however, stand his ground in the common passageway, even if he had one foot inside his door as he contends, and claim the right to the instruction. We agree with the state that as our society moves more and more toward com-munual-type dwellings the rule herein becomes a critical issue in the proper enforcement of the criminal law. The standard self-defense instruction given at this trial is adequate and is all that should be given in this type of situation. To rule otherwise would, in effect, allow shoot-outs between persons with equal rights to be in a common area.
The opinion of the district court is quashed, and the cause is remanded to it with instructions to modify its order granting a new trial on its stated grounds.
It is so ordered.
ALDERMAN, C. J., and ADKINS, BOYD and OVERTON, JJ., concur. SUNDBERG, J., concurs in result only.
. Art. V, § 3(b)(3), Fla.Const. . This two-story apartment building has four apartments downstairs and four upstairs. The walkway, an open concrete porch, is common to the four downstairs apartments.
. Hedges v. State, 172 So. 2d 824 (Fla. 1965); Pell v. State, 97 Fla. 650, 122 So. 110 (1929); Danford v. State, 53 Fla. 4, 43 So. 593 (1907); State v. Bobbitt, 389 So. 2d 1094 (Fla. 1st DCA 1980), disapproved, 415 So. 2d 724 (Fla.1982); Redondo v. State, 380 So. 2d 1107 (Fla.3d DCA), cert. denied, 388 So. 2d 1118 (Fla. 1980).
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Kendrick v. State, 433 So. 2d 572 (Fla. 3d DCA 1983)…PER CURIAM. Affirmed. See State v. Page, 418 So. 2d 254 (Fla.1982).…
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Evelio Mantilla & Am. Motorists Ins. Co. v. Olimpia Hassanien and Mohamed Nabil Hassanien, 419 So. 2d 415 (Fla. 3d DCA 1982)…reversed and remanded the order of the Circuit Court of Dade County, Florida, in the above styled cause; and WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed July 29, 1982, 418 So. 2d 254 and mandate now lodged in this court, quashed this court’s judgment. NOW THEREFORE, It is Ordered that the mandate of this court heretofore issued on May 19, 1981 is withdrawn, the judgment of this court filed January 20, 1981 is vacated, the said…
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Page v. State, 419 So. 2d 424 (Fla. 3d DCA 1982)…ersing the judgment and sentence of the Circuit Court of Dade County, Florida, in the above styled cause, and WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed July 29, 1982, 418 So. 2d 254 and mandate now lodged in this court quashed this court’s judgment; NOW, THEREFORE, It is Ordered that the mandate of this court entered in this cause on June 19, 1981 is withdrawn, the opinion and judgment of this court filed herein on April 28,1…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Pell v. State, 97 Fla. 650 (Fla. 1929)
- Carmine Charles Robert Falco v. State, 407 So. 2d 203 (Fla. 1981)
- Danford v. State, 53 Fla. 4 (Fla. 1907)
- Redondo v. State, 380 So. 2d 1107 (Fla. 3d DCA 1980)
- State v. Bobbitt, 415 So. 2d 724 (Fla. 1982)
- State v. Bobbitt, 389 So. 2d 1094 (Fla. 1st DCA 1980)
- Conner v. State, 361 So. 2d 774 (Fla. 4th DCA 1978)
- Page v. State, 398 So. 2d 859 (Fla. 3d DCA 1981)