BRYAN MILLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Bryan Miller appeals his aggravated assault conviction, arguing the trial court erred by refusing to instruct the jury on justifiable non-deadly force and instead instructing only on justifiable deadly force. The court affirms, holding that firing a firearm—even as a warning shot—constitutes deadly force as a matter of law, and Miller's own testimony supported only a deadly force defense.
The trial court did not err because firing a firearm, even as a warning shot, constitutes deadly force as a matter of law, and Miller's testimony supported only a justifiable deadly force defense, not a non-deadly force defense.
[1] Firing a firearm, even as a warning shot, constitutes the use of deadly force as a matter of law.
[2] A firearm is a deadly weapon, and firing it in the vicinity of human beings creates a danger of death or great bodily harm.
Previewing 2 of 3 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“Firing a firearm in the air, even as a so-called "warning shot," constitutes as a matter of law the use of deadly force, that is, the use of a force likely to cause death or great bodily harm”
Establishes the core legal principle that a warning shot is deadly force as a matter of law
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Join FLexlaw to unlock all legal intelligenceMiller pointed a gun at the complainant and pulled the trigger, resulting in a misfire; after the complainant fled, Miller fired a shot. Miller testif…
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I^ER CURIAM.
This is an appeal by the defendant Bryan Miller from a judgment of conviction and sentence for aggravated assault. The defendant’s sole point on appeal is that the trial court erred in refusing to instruct the jury on the justifiable use of non-deadly force fFla.Std. Jury Instr. 3.04(e)], and, instead, instructing the jury on the justifiable use of deadly force [Fla.Std. Jury Instr. 3.04(d) ]. We find no reversible error in this point and affirm.
At trial the state adduced evidence tending to show that the defendant pointed a gun at the complainant and pulled the trigger, resulting in a misfire, and that after the complainant fled, a shot was, in fact, fired by the defendant. The defendant testified at trial that he did not point his gun at the Complainant, but instead fired a warning shot in the air when, he said, the complainant advanced on him with a stick. The defendant contends that he was therefore entitled to a jury instruction on the justifiable use of non-deadly force because his trial testimony supported this defense. We cannot agree because, simply stated, the defendant’s testimony does not support a defense of justifiable use of non-deadly force, but, at best, only a defense of justifiable use of deadly force.
Firing a firearm in the air, even as a so-called “warning shot,” constitutes as a matter of law the use of deadly force, that is, the use of a force likely to cause death or great bodily harm — and is not, as urged, the use of force not likely to cause death or great bodily harm. A firearm is, by definition, a deadly weapon which fires projectiles likely to cause death or great bodily harm; whenever it is fired in the vicinity of human beings, as here, there is real danger that the fired projectile may hit someone, even if not aimed at anyone, as such projectiles are quite capable of ricocheting off nearby objects and hitting people in the area. Consequently, no reversible error is presented in the refusal to give a jury instruction on the justifiable use of non-deadly force. At best, the defendant was entitled, if at all, to a jury instruction on the justifiable use of deadly force which was, in fact, given in this case. Bello v. State, 547 So. 2d 914, 916 (Fla.1989); State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
Affirmed.
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Citator
Cited By (17 total)
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Garramone v. State, 636 So. 2d 869 (Fla. 4th DCA 1994)…776.06, Fla.Stat. (1993). Discharge of a firearm has been held as a matter of law to constitute deadly force because a “firearm is, by definition, a deadly weapon which fires projectiles likely to cause death or great bodily harm.” Miller v. State, 613 So. 2d 530, 531 (Fla. 3d DCA 1993). Cases, other than those dealing with deadly weapons such as firearms, provide no bright line test. In Cooper, our court rejected the state’s contention that an automobile travelling at a decent rate of speed is deadly force,…
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Altieri v. State, 835 So. 2d 1181 (Fla. 4th DCA 2002)…that would require a new trial. See Ryan v. State, 467 So. 2d 1084 (Fla. 4th DCA 1984). We also hold that the trial court did not abuse its discretion when it failed to give an instruction on justifiable use of non-deadly force. See Miller v. State, 613 So. 2d 530, 531 (Fla. 3d DCA 1993).1 Accordingly, we affirm appellant’s conviction. We reverse the trial court’s imposition of a twenty year mandatory minimum sentence for discharging a firearm and we remand this cause to the trial court to re-sentence appell…
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DeLUGE v. State, 710 So. 2d 83 (Fla. 5th DCA 1998)…exception may be firearms. The discharge of a firearm consistently is held to be the use of deadly force as a matter of law, regardless of whether it was aimed at the victim. See Stewart v. State, 672 So. 2d 865 (Fla. 2d DCA 1996); Miller v. State, 613 So. 2d 530 (Fla. 3d DCA 1993) (the firing of a firearm into the air, even as a so called warning shot, constitutes the use of deadly force as a matter of law).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Bello v. State, 547 So. 2d 914 (Fla. 1989)