CLINT MICHAEL BARKLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Clint Michael Barkley appealed his second-degree murder conviction, arguing the trial court erred by refusing to instruct the jury that he had no duty to retreat from his home before using deadly force in self-defense against a co-occupant. The appellate court agreed based on the Florida Supreme Court's recent decision in Weiand v. State and reversed for a new trial.
Yes. The trial court erred in denying Barkley's requested jury instruction on the privilege of nonretreat. Under the Florida Supreme Court's decision in Weiand v. State, a defendant is not required to retreat from his or her residence before justifiably resorting to deadly force in self-defense against a co-occupant if that force is necessary to prevent death or great bodily harm.
[1] A defendant is not required to retreat from his or her residence before justifiably resorting to deadly force in self-defense against a co-occupant if that force is neces…
[2] A jury instruction on the privilege of nonretreat in a co-occupant situation is applicable to cases pending on direct review or not yet final.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a defendant is not required to retreat from his or her residence before justifiably resorting to deadly force in self-defense against a co-occupant if that force is necessary to prevent death or great bodily harm”
Establishes the holding that overrules prior law denying the no-duty-to-retreat privilege in co-occupant cases
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBarkley was charged with second-degree murder in the death of Edward Collesano. The case involved a confrontation in Barkley's home with a co-occupant…
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BLUE, Judge.
Clint Michael Barkley appeals his conviction for second-degree murder in the death of Edward Collesano. Barkley argues that the trial court erred in refusing to instruct the jury that he had no duty to retreat from the home before using deadly force in self-defense. Based on the recent supreme court decision in Weiand v. State, 732 So. 2d 1044 (Fla.1999), we agree and reverse. As to the second issue on appeal, we find no merit and affirm without discussion.
Barkley argues that the trial court erred in denying his requested jury instruction on the privilege of nonretreat based on the evidence that he was a co-occupant of the home. While' Florida previously recognized that someone, while in his or her home, had no duty to retreat when attacked by an invitee, see Hedges v. State, 172 So. 2d 824 (Fla.1965), this privilege did not apply when the attack came from a co-occupant, see State v. Bobbitt, 415 So. 2d 724 (Fla.1982). In Weiand, the supreme court receded from Bobbitt and held that a defendant is not required to retreat from his or her residence before justifiably resorting to deadly force in self-defense against a co-occupant if that force is necessary to prevent death or great bodily harm. See 732 So. 2d at 1049-50. We note that the trial court did not have the benefit of Weiand at the time of trial. This decision, however, is applicable to all cases pending on direct review or not yet final. See 732 So. 2d at 1058.
The State argues that Barkley failed to preserve this issue for review because he did not make a request for the specific instruction approved in Weiand. Barkley did request an instruction to explain that he had no duty to retreat from his new residence in the face of an attack by a co-occupant. He renewed his objection to this omission after the trial court instructed the jury. Therefore, we conclude that the issue was properly preserved. The State further argues that any error was harmless. In closing argument, the prosecutor emphasized Barkley’s duty to retreat. Thus, we cannot say the error was harmless. Accordingly, we reverse.
Reversed and remanded for a new trial.
THREADGILL, A.C.J., and STRINGER, J., Concur.
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Kary Burch v. State, 774 So. 2d 46 (Fla. 2d DCA 2000)…etreat. The instruction given by the trial court did [*47] 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.…
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Potter v. State (Fla. 3d DCA 2020)…en a formal jury instruction advising the jurors that if a defendant has a valid prescription for the oxycodone in their possession, she cannot be convicted of possession of (or trafficking by possession in) oxycodone. Compare with Barkley v. State, 750 So. 2d 755, 756 (Fla. 2d DCA 2000) (finding that co-occupant of a home was entitled to the jury instruction on the privilege of non-retreat and the failure to provide the instruction was not harmless error where, “[i]n closing argument, the prosecutor emphasiz…
Authorities Cited
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Payton v. State, 732 So. 2d 1044 (Fla. 1999)
- Weiand v. State, 732 So. 2d 1044 (Fla. 1999)
- State v. Bobbitt, 415 So. 2d 724 (Fla. 1982)