KARL F. MARSHALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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WARNER, C.J.
At his trial for aggravated assault with a firearm, appellant, who claimed self-defense, withdrew his request for an instruction on justifiable use of deadly force after the trial court agreed to give the instruction on justifiable use of non-deadly force. Because the state argued that the force, which involved the use of a gun, was deadly, the trial court gave both defense instructions. Appellant was convicted of improper exhibition of a dangerous weapon, a lesser included charge, but appeals claiming that the trial court erred in giving the instruction on justifiable use of deadly force. Because it is for the jury to determine whether the force involved was deadly or non-deadly, we af firm the trial court’s determination to give both charges. See Garramone v. State, 636 So. 2d 869, 871 (Fla. 4th DCA 1994); Cooper v. State, 573 So. 2d 74, 76 (Fla. 4th DCA 1990). Moreover, “[t]he state, like the defendant, is entitled to all applicable jury instructions” supporting its theory of the case. Diggs v. State, 489 So. 2d 1228, 1228 (Fla. 5th DCA 1986).
Affirmed.
DELL and GUNTHER, JJ., concur.
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Mathews v. State, 799 So. 2d 265 (Fla. 1st DCA 2001)…t 603. When the evidence does not establish that the force used was deadly or non-deadly as a matter of law, the jury should be allowed to decide the question. See Stewart v. State, 672 So. 2d 865, 868 (Fla. 2d DCA 1996); see also Marshall v. State, 747 So. 2d 1045 (Fla. 4th DCA 2000). Only a firearm’s discharge has been held to be deadly force as a matter of law. See Williams v. State, 727 So. 2d 1062, 1063 (Fla. 4th DCA 1999); see also DeLuge v. State, 710 So. 2d 83, 84 n. 2 (Fla. 5th DCA 1998); Stewart, 672…
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Carter v. State, 115 So. 3d 1031 (Fla. 4th DCA 2013)…la. 4th DCA 1999) (citations omit [*1037] ted). “[0]nly the discharge of a firearm has been held to be deadly force as a matter of law.” Id. (citation omitted). This case is factually more similar to the situation we addressed in Marshall v. State, 747 So. 2d 1045 (Fla. 4th DCA 2000). There, the defendant was charged with aggravated assault with a firearm. Claiming self-defense at trial, the defendant withdrew his request for an instruction on the justifiable use of deadly force after the trial court granted…
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Raushamon Brown v. State, 113 So. 3d 103 (Fla. 5th DCA 2013)…e supports an instruction on either deadly or non-deadly force, it is error not to give it. Curington v. State, 704 So. 2d 1137, 1140 (Fla. 5th DCA 1998). In some instances, the giving of both instructions is warranted. See, e.g., Marshall v. State, 747 So. 2d 1045, 1045-46 (Fla. 4th DCA 2000) (affirming trial court’s decision to give both deadly and non-deadly force instructions in case involving aggravated assault with firearm as both instructions were supported by evidence). When determining which self-defe…
Authorities Cited
- Garramone v. State, 636 So. 2d 869 (Fla. 4th DCA 1994)
- Cooper v. State, 573 So. 2d 74 (Fla. 4th DCA 1990)
- Diggs v. State, 489 So. 2d 1228 (Fla. 5th DCA 1986)