SALUSTIAN RIVERO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that pointing a firearm without firing it constitutes nondeadly force, and thus the trial court was correct in refusing a jury instruction on justifiable use of deadly force.
The defendant pointed a firearm without firing it during an incident on December 24, 2002. The defendant appealed his conviction for aggravated assaul…
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COPE, J.
Salustian Rivero appeals his conviction for aggravated assault with a firearm. We affirm.
First, defendant-appellant Rivero argues that the trial court should have given the jury an instruction on justifiable use of deadly force. See Fla. Std. Jury Instr. (Crim.) 3.6(f); §§ 776.012, 776.06, Fla. Stat. (2002).* However, the argument the defendant advances here was never presented in the trial court and is thus not preserved for appellate review. Assuming arguendo it had been presented in the trial court, it is without merit.
In the present case the evidence showed that the defendant pointed the gun without firing it. The use-of-force statute looks to the amount of force which is actually used. Pointing a firearm (without firing it) amounts to the use of nondeadly force. See Stewart v. State, 672 So. 2d 865, 868 (Fla. 2d DCA 1996) (waving a gun in the air did not amount to the use of deadly force). By contrast, firing a firearm in the vicinity of human beings constitutes the use of deadly force as a matter of law. Miller v. State, 613 So. 2d 530, 531 (Fla. 3d DCA 1993).
Because the defendant pointed the gun without firing it, this was nondeadly force. The trial court was entirely correct in giving the standard jury instruction on justifiable use of nondeadly force, Fla. Std. Jury Instr. (Crim.) 3.6(g), and omitting the instruction on justifiable use of deadly force. Id. 3.6(f).
As to the remaining point on appeal, we conclude that the evidence was legally sufficient.
Affirmed.
*
The crime date was December 24, 2002.
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Garrido v. State, 97 So. 3d 291 (Fla. 4th DCA 2012)…the special instruction was supported by the evidence. In regard to whether the special instruction was a correct statement of law, we agree that the cases Garrido relies on, Stewart v. State, 672 So. 2d 865 (Fla. 2d DCA 1996), and Rivero v. State, 871 So. 2d 953 (Fla. 3d DCA 2004), hold that merely displaying a gun without firing it does not constitute deadly force as a matter of law. However, neither Stewart nor Rivero considered the issue of giving a special instruction. Garrido argues that without the s…
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Marty v. State, 210 So. 3d 121 (Fla. 2d DCA 2016)…he proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Turning to the facts of this case, Marty pointing a gun at Valenzuela without firing at her did not, as a matter of established law, constitute deadly force. See Rivero v. State, 871 So. 2d 953, 954 (Fla. 3d DCA 2004); cf. Miller v. State, 613 So. 2d 530, 531 (Fla. 3d DCA 1993) (explaining that discharging a firearm in the air as a warning shot constitutes the use of deadly force). Although firearms are frequently considered deadly weapons…
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Jackson v. State, 179 So. 3d 443 (Fla. 5th DCA 2015)…gun at another’s head or heart without firing it, is not deadly force as a matter of law. See Cunningham v. State, 159 So. 3d 275, 277-78 (Fla. 4th DCA 2015) (citing Carter v. State, 115 So. 3d 1031, 1037 n. 3 (Fla. 4th DCA 2013)); Rivero v. State, 871 So. 2d 953, 954 (Fla. 3d DCA 2004) (“The use-of-force statute looks to the amount of force which is actually used. Pointing a firearm (without firing it) amounts to the use of nondeadly force.” (emphasis omitted) (citing Stewart v. State, 672 So. 2d 865, 868 (…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. State, 613 So. 2d 530 (Fla. 3d DCA 1993)
- Stewart v. State, 672 So. 2d 865 (Fla. 2d DCA 1996)