        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       MICHAEL CUNNINGHAM,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D12-3321

                             [March 4, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Usan, Judge; L.T. Case No. 09-11413
CF10A.

   Bruce A. Zimet of Bruce A. Zimet, P.A., Fort Lauderdale, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   Michael Cunningham challenges his conviction and sentence for
aggravated assault with a firearm, arguing, among other things, that the
court erred in failing to give a requested justifiable use of non-deadly
force jury instruction. Based on this error, we reverse and remand for a
new trial.

    The state charged Cunningham with aggravated assault with a
firearm, based on a confrontation he had with a process server who came
to Cunningham’s home after sunset. The defense presented evidence
that the process server walked around the perimeter of the house and
left, and that when he returned, he drove aggressively and approached
Cunningham and his brother with an object in his hand. The evidence
also established that Cunningham pointed a gun toward the process
server while making threatening statements.

   Defense counsel requested a justifiable use of non-deadly force
instruction, but the trial court declined, and provided an on-the-record
analysis of the requested instruction as follows:
      Non-deadly force would be something that the defendant
      might ask if we were talking about that he came out with a
      stick or lead pipe or something then there’s a question to
      whether that’s deadly force or non-deadly force. But since
      the charge involves a firearm, non-deadly force would not
      apply to a firearm.

    It is well settled that “[w]here there is any evidence introduced at trial
which supports the theory of the defense, a defendant is entitled to have
the jury instructed on the law applicable to his theory of defense when he
so requests.” Bryant v. State, 412 So. 2d 347, 350 (Fla. 1982) (emphasis
added) (citation omitted). This is true “no matter how weak or flimsy” the
evidence. Gregory v. State, 937 So. 2d 180, 182 (Fla. 4th DCA 2006)
(citations omitted).

   The non-deadly force instruction which the trial court declined to
present to the jury provides the following in pertinent part:

      An issue in this case is whether the defendant acted in self-
      defense.
      It is a defense to the offense with which (defendant) is
      charged if the
      [death of] [injury to] (victim) resulted from the justifiable use
      of non- deadly force.

      “Non-deadly” force means force not likely to cause death or
      great bodily harm.

      (Defendant) would be justified in using non-deadly force
      against (victim) if the following two facts are proved:

   1. (Defendant) must have reasonably believed that such
      conduct was necessary to defend [himself] . . . [another]
      against (victim’s) imminent use of unlawful force against the
      [defendant] [another person].

   2. The use of unlawful force by (victim) must have appeared to
      (defendant) to be ready to take place.

Fla. Std. Jury Instr. (Crim.) 3.6(g).

   This court has explained how to determine whether to give the non-
deadly force instruction, deadly force instruction, or both: ‘“If the type of

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force used is clearly deadly or non-deadly as a matter of law, only the
applicable instruction should be given.’”1 Williams v. State, 727 So. 2d
1062, 1062 (Fla. 4th DCA 1999) (quoting DeLuge v. State, 710 So. 2d 83,
84 (Fla. 5th DCA 1998)).

   It is now well established by this court that the discharge of a firearm
constitutes deadly force as a matter of law. Hosnedl v. State, 126 So. 3d
400, 404 (Fla. 4th DCA 2013) (citations omitted). Likewise, we also have
established that the mere display of a gun is not deadly force as a matter
of law. See Carter v. State, 115 So. 3d 1031, 1037 n.3 (Fla. 4th DCA
2013) (“Apparently the firearm was not discharged and deadly force did
not apply as a matter of law.”); Howard v. State, 698 So. 2d 923, 925
(Fla. 4th DCA 1997) (“[E]ven the display of a deadly weapon, without
more, is not ‘deadly force.’”).

    Because there was conflicting evidence as to whether the process
server behaved in a threatening manner and the firearm was used in a
non-deadly way, the court erred in not giving the justifiable use of non-
deadly force instruction. We cannot say that the error was harmless.
Non-deadly force, as opposed to deadly force, is justified if a defendant
reasonably believes such force is necessary to defend himself or another
from the use of unlawful force. Fla. Std. Jury Instr. (Crim.) 3.6(g).
Deadly force, on the other hand, is justified only when the defendant
reasonably believes its use is necessary to prevent imminent death, great
bodily harm, or the commission of a forcible felony. See Fla. Std. Jury
Instr. (Crim.) 3.6(f). In light of the evidence introduced in this trial, even
if the jury felt the use of deadly force was not justified under the
circumstances, it may have come to a different result had it been
presented with the option of deeming the defendant’s actions as
justifiable non-deadly force. See Howard, 698 So. 2d at 925 (finding that
failure to give non-deadly force instruction was not harmless where “jury
may have been unable to conclude that the use of deadly force in
response to an incoming punch was justifiable but may have reached a
different result if it had the opportunity to find that appellant’s use of the
knives was non-deadly force”).

   Cunningham also argues the court erred when it gave the deadly force
instruction. We do not need to decide whether this error amounted to

1 Otherwise, if not clearly based on the facts before the court, “‘the question of
whether the force used by a defendant was “deadly” or “non-deadly” should be
submitted to the jury.’” Id. The “submittal to jury option” would not apply in
this case, however.       The defense presented evidence, which based on
established caselaw, precludes the deadly force instruction.

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fundamental error, but we do note that if, after remand, the case is
retried and the evidence is the same, a deadly force instruction would, by
law, not be appropriate.

   Based on our reversal and remand for new trial and the reasoning
contained herein, we find it unnecessary to address the other issues
raised on appeal.

   Reversed and remanded for a new trial.

WARNER and GERBER, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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