Stewart v. State
| Decision Date | 10 April 1996 |
| Docket Number | No. 95-01141,95-01141 |
| Citation | 672 So.2d 865 |
| Court | Florida District Court of Appeals |
| Parties | 21 Fla. L. Weekly D894 Mark STEWART, Appellant, v. STATE of Florida, Appellee. |
Appeal from the Circuit Court for Sarasota County; Peter A. Dubensky, Judge.
Charlie Ann Scott of Scott & Williams, P.A., Sarasota, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
The appellant, Mark Stewart, challenges the judgment and sentence imposed upon him after a jury found him guilty of aggravated assault while armed with a firearm. We find that the trial court erred by refusing to instruct the jury on self-defense and, accordingly, reverse and remand for a new trial.
The appellant was charged with aggravated assault while armed with a firearm as the result of an incident which occurred in a shopping center parking lot. The appellant was driving his vehicle in a southerly direction when the victim, who was attempting to secure a particular parking space for his van, drove very close to him in a westerly direction. After the appellant stopped his vehicle at a stop sign located near the incident, the parties let each other know, both verbally and by gesture, that they did not appreciate the other's conduct. There was evidence that the conduct escalated to the point where the appellant waved an unloaded, holstered pistol in the air for the victim to see and then drove off.
During the appellant's jury trial, the evidence concerning the events leading up to the waving of the pistol was conflicting. The victim testified that the appellant stopped for an unusually long period of time at the stop sign and that both parties exchanged angry gestures. According to the victim, the appellant then began exiting his car and pointed a gun at him. The gun remained in the car at all times. The victim's testimony was corroborated by the victim's wife and daughter who were passengers in the van. The appellant, on the other hand, testified that when he stopped at the stop sign the victim became very angry, exited his van, and proceeded toward him while yelling and swearing. He testified further that because he was in fear that the victim was going to attack him, he reached down and waved the unloaded, holstered pistol in the air in self-defense with the purpose of scaring the victim and halting his aggressive approach. The appellant's version of the incident was corroborated by his passenger, his girlfriend, who also testified that she felt threatened. Even though the appellant could have safely retreated from the situation by driving away from it, he admitted that his first reaction was to get his gun.
At the conclusion of the trial, the appellant requested an instruction on the justifiable use of nondeadly force. After this requested instruction was refused, he requested an instruction, which was also refused, on the justifiable use of deadly force. After the jury found the appellant guilty of aggravated assault while armed with a firearm, the court adjudicated him guilty and sentenced him to serve a mandatory term of three years in prison. This timely appeal followed.
On appeal the appellant contends that the evidence established that his conduct was justified and that he was therefore entitled to an instruction on self-defense. Section 776.012, Florida Statutes (1993), provides as follows:
Use of force in defense of person. A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.
In this case, the appellant advanced the theory of self-defense and presented evidence to support that theory. The appellant testified that the victim approached him at a high rate of speed and that he felt he had to swerve to avoid a collision. The appellant and his girlfriend testified that the victim got out of his car and approached them angrily and in a threatening manner. The appellant testified that he was afraid of being attacked and, therefore, that he was justified in waving his unloaded, holstered pistol in an effort to scare the victim away. Because this evidence supported his theory that his conduct was justified under section 776.012, a jury instruction on justifiable use of force should have been given. See Wenzel v. State, 459 So.2d 1086 (Fla. 2d DCA 1984). We realize that conflicting evidence was presented to the jury. However, we are not permitted to weigh the evidence to determine the propriety of the appellant's defense. If evidence of self-defense is adduced, as it was in this case, self-defense becomes an issue for the jury to determine. Garramone v. State, 636 So.2d 869 (Fla. 4th DCA 1994).
Although we have concluded that the jury should have been instructed on the justifiable use of force, it is still necessary to decide whether they should have been instructed on the justifiable use of nondeadly force, deadly force, or both. Under the facts of this case we find that the trial court properly denied the appellant's alternate request that the jury be instructed on the justifiable use of deadly force and agree with his contention that an instruction on the use of nondeadly force should have been given.
When the evidence does not establish that the force used by a defendant claiming the right to use force in the defense of unlawful force is deadly or nondeadly as a matter of law, the jury should be allowed to decide the question. See Garramone, 636 So.2d at 871 (...
To continue reading
Request your trial
-
Martinez v. State
...1st DCA 2003). Thus, where conflicting evidence is offered, self-defense is an issue for the jury to determine. See Stewart v. State, 672 So.2d 865, 867 (Fla. 2d DCA 1996). Once a defendant produces evidence in support of a self-defense claim, the State is required to prove beyond a reasona......
-
State v. Rice
...whether the use constitutes deadly force or non-deadly force is a factual matter for the jury to decide. Accord Stewart v. State, 672 So.2d 865, 868 (Fla. Dist. Ct. App. 1996) ("When the evidence does not establish that the force used by a defendant claiming the right to use force [in self-......
-
Jackson v. State
...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 (Fla. 2d DCA 1996) )). Jackson's counsel did not object to this misstatement of law, and it was not corrected by any jury instruction. So, wit......
-
Curington v. State, 96-2758
...to think loss of life or serious injury is imminent. And use of deadly force is only proper if retreat is not possible. Stewart v. State, 672 So.2d 865 (Fla. 2d DCA 1996). In this case, Curington presented sufficient evidence to create a jury issue as to each of these elements. J.Y. v. Stat......