KELLY v. STATE (1999)

District Court of Appeal of Florida,First District.

Virginia KELLY, Appellant, v. STATE of Florida, Appellee.

No. 98-418.

Decided: December 29, 1999

Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General, and Karla D. Ellis, Assistant Attorney General, Tallahassee, for Appellee.

The appellant challenges her conviction, contending that the trial court failed to properly instruct the jury as to self-defense. The appellant objected to the instruction given below, which does not comply with the instruction adopted by the supreme court in Weiand v. State, 732 So.2d 1044 (Fla.1999), regarding the limited duty to retreat for one attacked in their own home by another occupant of the premises. Although the appellant was tried before the supreme court's Weiand decision, the Weiand opinion expressly makes the instruction applicable to cases pending on direct review. The appellant's conviction is therefore reversed, and the case is remanded.

PER CURIAM.

BOOTH, ALLEN and PADOVANO, JJ., CONCUR.

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