Scott Little v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT SCOTT LITTLE, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D18-3128 [August 19, 2020] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Elizabeth Anne Scherer, Judge; L.T. Case No. 17-3214 CF10A Carey Haughwout, Public Defender, and Breanna Atwood, Assistant Public Defender, West Palm Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee. FORST, J. The circumstances presented in this case are familiar and of the “torn from the headlines” genre. The legal issues, on the other hand, are novel, due to two amendments to Florida statutes affecting self-defense claims: Chapter 2017-72, § 1, Laws of Florida (shifting the burden of proof at pre- trial Stand Your Ground (“SYG”) immunity hearings from the defendant to the State), and Chapter 2014-195 § 6, Laws of Florida (extending the “use of” deadly and non-deadly force defenses to “threatened use of” such force). Scott Little (“Defendant”) was charged with aggravated assault with a deadly weapon and battery. Following a SYG hearing, his motion to dismiss these charges was denied. A jury trial followed, and Defendant was convicted on both charges. He raises several issues on appeal. We write to address Defendant’s arguments that: (1) his counsel was ineffective on the face of the record for failing to argue, at the pretrial SYG hearing on Defendant’s motion to dismiss, that Defendant’s actions constituted non-deadly force, as opposed to deadly force; (2) the trial court fundamentally erred in giving the deadly force jury instruction (in addition to the non-deadly force instruction) at trial because the instruction was not supported by the facts of this case; and (3) because the trial court improperly placed the burden of proof on Defendant at the SYG hearing pursuant to the pre-2017 version of section 776.032, Florida Statutes (2017)—which was in effect at the time of the incident and Defendant’s arrest, rather than the amended statute, which became effective nine months before the SYG hearing—this case needs to be remanded for a new hearing notwithstanding an affirmance of the trial court with respect to the aforementioned arguments on appeal. On these and all other issues raised on appeal, we reject Defendant’s arguments and affirm. Background We reference both the SYG hearing which resulted in the denial of Defendant’s motion to dismiss, and the subsequent trial which resulted in Defendant’s convictions. Hearing on Defendant’s Motion to Dismiss Defendant filed a pretrial motion to dismiss pursuant to section 776.032, Florida Statutes (2017), which provides for immunity from criminal prosecution for justifiable use or threatened use of force. At the SYG hearing on the motion to dismiss, the defense presented the testimony of Defendant and two neighbors (who did not observe the confrontation at issue). After the defense rested, the State requested a “ruling based on the insufficient evidence that has been provided by the defense.” Defense counsel argued “a person is justified in threatening to use deadly force if he or she reasonably believes that such conduct is necessary to prevent the commission of a forceble [sic] felony, in this case, being the burglary of his car.” Defense counsel also contended that, as a result of the Florida Legislature’s 2017 amendment to section 776.032(4), Florida Statutes, the State was required to prove, by clear and convincing evidence, that Defendant was not entitled to self-defense immunity. The trial court noted that the change to the statute became effective after the alleged crime but before the pretrial hearing, and it held that the amended statute did not apply to this case. Thus, the trial court determined that Defendant bore the burden of proof, by a preponderance of the evidence, to demonstrate entitlement to SYG immunity. Having reached this decision regarding the burden of proof, the trial court made the following findings and conclusions: 2 Defendant was a member of an unofficial neighborhood “crime watch” group, which was formed after several burglaries in the neighborhood that occurred at least 6 months prior to this incident. Defendant was sitting on his porch when he observed a young black male approach a neighbor’s mailbox. He had never seen this individual before and did not believe he was a resident of the neighborhood. This individual had his back to Defendant so he could not see what happened, if anything, at the mailbox. The young man then walked over to [Defendant’s] truck and attempted to open the door using the handle. Fearing his property might be stolen or damaged, Defendant yelled for the individual to get away from his truck, pulled out his firearm, pointed it at him, and ordered him to get face down on the ground while he called police. The individual attempted to roll over to speak to him, but Defendant placed his foot on his back to prevent him from moving. Defendant never pat down the individual[,] so he does not know if this individual had a weapon. Defendant held this individual at gunpoint until police arrived. Defendant was subsequently arrested. Having carefully weighed the testimonies of Defendant and the two additional witnesses, this Court finds the testimony of Defendant less than credible and the testimony of the other two witnesses generally credible, however only Defendant was present to witness the critical portion of time surrounding the incident at issue here. This Court concludes that the facts here do not support the application of immunity under Florida’s “Stand-Your-Ground” Law. Defendant has not established by a preponderance of the evidence that he possessed a reasonable belief that his actions in brandishing and pointing his firearm and holding this individual at gunpoint here were necessary to prevent the imminent commission of a forcible felony. Under Florida law, a “forcible felony” “means treason; murder; manslaughter; sexual battery; carjacking; home- invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.” § 776.08, Fla. Stat. Here, Defendant never entered the vehicle and the vehicle was unoccupied, therefore 3  the act of trying the door handle or reaching around the hood, without more, does not constitute the imminent commission of any forcible felony including carjacking or burglary. Additionally, the act of looking into a neighbor’s mailbox does not constitute a forcible felony. As such, Defendant was not justified in using deadly force by brandishing and pointing his firearm and holding this individual at gunpoint to protect his property and Defendant is not entitled to stand your ground immunity under the circumstances here. After the trial court denied Defendant’s motion to dismiss, the case proceeded to a jury trial. The Jury Trial At trial, the alleged victim testified that he was a seventeen-year-old high school senior at the time of the incident. On the night of the incident, he went on his normal evening jog around 10:30 p.m., after his mother got home from work. At the beginning of his run, he noticed that he had money in his pocket. Near the end of his run, several blocks from his apartment, he noticed the money was missing. At this point, he began to search for his money in the grassy areas along the route he had just run. After searching around several mailboxes, he crossed the street towards a white truck, which happened to belong to Defendant. Upon reaching the truck, he put his hand on the vehicle and bent down to look underneath it for his money. As he bent down, he heard a voice yell out—although he could not hear it clearly over the music playing through his headphones. When he turned toward the voice, Defendant was approaching him with a gun drawn, yelling for him to get on the ground while he called the police. Pursuant to a pretrial ruling, the State was not permitted to introduce any evidence of Defendant’s alleged racist statements in its case in chief. Defendant, however, advanced a theory of self-defense at trial, which allowed the State to put on a rebuttal case. On rebuttal, the State recalled the alleged victim, who testified that when Defendant approached, he said, “get on the f****** ground n*****.” On cross-examination, the defense questioned the alleged victim about why he did not tell the police about this statement on the night of the incident. The alleged victim explained that he does not curse. Two officers responded to Defendant’s call that evening and both testified at trial. Officer #1 testified he arrived at the scene to find Defendant with a pistol in one hand and flagging him down with the other hand. When Officer #1 approached, Defendant immediately put down the 4 pistol and indicated that he had called 911. Officer #1 noticed the alleged victim lying on the ground crying and shaking. The officer separated Defendant and the alleged victim and took their statements. Defendant complained to Officer #1 about insufficient police protection in the neighborhood and said he was tired of “these people” stealing. Officer #2 testified the alleged victim was “petrified” at the scene. In contrast, Defendant appeared “completely nonchalant.” Officer #2 also heard Defendant state he was tired of “these people” stealing. Defendant testified in his own defense. He claimed he approached the alleged victim without his gun drawn while telling the victim—albeit in a loud tone—to get away from his truck. Only when the alleged victim “turned and came at [him],” motioning in an aggressive manner, did Defendant draw his gun and order the alleged victim onto the ground while he called the police. Defendant held the alleged victim at gunpoint and put his foot on his back to prevent him from turning over while waiting for the police to arrive, which took approximately five minutes. He denied shouting a racial slur at the alleged victim and claimed he did not treat the alleged victim differently because of his race. At the charge conference, Defendant requested the non-deadly force jury instruction. Although Defendant’s trial counsel initially argued against the State’s request for a deadly force instruction, she did not object either when the trial court advised the parties that it would give both instructions, or when the deadly force instruction was given in addition to the non-deadly force instruction. During closing arguments, the State argued: Now deadly force. That is exactly what the defendant did in this case, pointing a loaded gun at someone and ordering them onto their knees, is deadly force. Defendant objected, arguing “misstatement of the law.” The trial court sustained the objection and instructed the State to “[b]ring the facts to it.” The State’s closing continued: Deadly force means likely to cause death or great bodily harm. The gun was loaded. The force that was used in this case, based on the facts that you heard, was deadly force. I don’t care how the defense tries to spin it. This is where your common sense kicks in. When someone points a gun and orders someone with a loaded gun, that type of force is deadly. 5  Scott Little can use whatever justification he’d like, but he better be at least willing to admit that he chose to use deadly force when the gun was loaded, and that he threatened it in a way that could cause death or great bodily harm. So, when the defense gets up for closing, I want you to hold them to the law. If the defense claims that his actions were non-deadly force, I want you to question how they can back that up when the gun was loaded with one in the chamber. And if you’re going to use deadly force, you need to have that there is an imminent fear of your own death, your own bodily harm, or a forcible felony. (Emphasis added). Defendant’s counsel did not object to these statements. Following the jury’s verdict finding Defendant guilty as charged, the trial court adjudicated him guilty on both counts and sentenced him to community control and probation for the aggravated assault with a deadly weapon, and to time served for the battery. This appeal followed. Analysis A. Alleged Ineffective Assistance of Counsel at the SYG Hearing Defendant contends his counsel provided ineffective assistance at the SYG hearing by failing to argue the correct legal standard (and failing to oppose the incorrect standard) with respect to Defendant’s claim of self- defense. Specifically, rather than assert a non-deadly force in defense of property argument under section 776.031(1), Florida Statutes, defense counsel paraphrased the first sentence of section 776.031(2) in arguing “a person is justified in threatening to use deadly force if he or she reasonably believes that such conduct is necessary to prevent the commission of a forceble [sic] felony, in this case, being the burglary of his car.” (emphasis added). Trial counsel’s performance was clearly deficient, Defendant maintains, for failing to argue for the application of the non-deadly force standard and failing to object to the application of the deadly force standard at the SYG hearing. The deadly force standard applies in a considerably narrower set of circumstances. Croft v. State, 291 So. 3d 1285, 1288 (Fla. 5th DCA 2020) (citing Copeland v. State, 277 So. 3d 1137, 1141 (Fla. 5th DCA 2019). If the 1974-2014 “use of force in defense of others” statute (and the caselaw discussed above) was applicable to this case, then there would be credence to Defendant’s argument that only the non-deadly force standard applied to the facts found by the trial court at the immunity hearing. 6  However, section 776.031 was amended in 2014 and, as such, the “threatening to use” language applies to this case. Because the amended version applies, defense counsel’s acknowledgment that this is a “deadly force” case was not error and, thus, not deficient. To establish ineffective assistance of counsel, a defendant “must show that counsel’s performance was deficient” and “that counsel’s errors were so serious as to deprive the defendant of a fair trial.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate the first prong— that trial counsel was deficient—a defendant must show that counsel’s performance “fell below an objective standard of reasonableness” as measured by “prevailing professional norms.” Id. at 688; McQuitter v. State, 103 So. 3d 277, 280 (Fla. 4th DCA 2012). To demonstrate the second prong, a defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694; McQuitter, 103 So. 3d at 280. “The appellate court must conduct a de novo review of the record to determine if a defendant’s claim meets the deficiency and prejudice prongs of Strickland.” Hills v. State, 78 So. 3d 648, 652-53 (Fla. 4th DCA 2012); see also Delancy v. State, 256 So. 3d 940, 944 (Fla. 4th DCA 2018). “In general, a claim of ineffective assistance of counsel cannot be raised for the first time on appeal, but rather such a claim is properly made in a motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure.” Hills, 78 So. 3d at 652 (citation omitted). “Instances where the appellate court will address an ineffectiveness claim on the face of an appellate record are rare indeed.” Henley v. State, 719 So. 2d 990, 990 (Fla. 4th DCA 1998). “However, a claim of ineffective assistance may be considered for the first time on direct appeal if: the ineffectiveness is apparent on the face of the record; there is undisputable prejudice; and there is no conceivable tactical explanation for the conduct.” Delancy v. State, 256 So. 3d at 944. Pre-2014 SYG defense From 1974 to 2014, section 776.031 stated (with slight wording changes in 1997 and 2005): Use of force in defense of others A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or 7  criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be. § 776.031, Fla. Stat. (2005) (highlighted sentence added in 2005). A person using either non-deadly or deadly force, as permitted by section 776.031, was, with a law enforcement officer exception, “justified in using such force and [was] immune from criminal prosecution and civil action for the use of such force . . . .” § 776.032(1), Fla. Stat. (2005). To determine whether “the use of force” is deadly as a matter of law, “it is the nature of the force and not the end result that must be evaluated. Deadly force occurs where the natural, probable and foreseeable consequences of the defendant’s acts are death. By statute, deadly force is defined as force likely to cause death or great bodily harm.” Hart v. State, 247 So. 3d 556, 559 (Fla. 4th DCA 2018) (quoting Garramone v. State, 636 So. 2d 869, 871 (Fla. 4th DCA 1994)). As noted by Defendant in his initial brief, there are numerous Florida cases that have determined that “the display of a deadly weapon, without more, is not ‘deadly force.’” Howard v. State, 698 So. 2d 923, 925 (Fla. 4th DCA 1997) (citing Toledo v. State, 452 So. 2d 661, 662 n.3 (Fla. 3d DCA 1984)). This court’s opinion in Cunningham v. State, 159 So. 3d 275 (Fla. 4th DCA 2015), is illustrative. In Cunningham, a process server came to the defendant’s house after sunset and approached, possibly in an aggressive manner, with an object in his hand. Id. at 276. The defendant pointed a gun at the process server and made threatening statements but did not fire the gun. Id. At trial, defense counsel requested a non-deadly force instruction, but the trial court refused the request. Id. In overturning the defendant’s conviction, we explained: 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) 8  (“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.’”). Id. at 277; see also Rivero v. State, 871 So. 2d 953, 954 (Fla. 3d DCA 2004) (“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 . . . and omitting the instruction on justifiable use of deadly force.”). The applicable (per 2014 amendments) SYG statute As noted above, section 776.031 was amended in 2014. The amended statute states: 776.031. Use or threatened use of force in defense of property (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. (2) A person is justified in using or threatening to use deadly force only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. (new statutory language emphasized). 9  Under the amended-in-2014 SYG statutes, 1 the focus expands from whether the firearm was discharged to also encompass whether there was a threat to discharge the firearm. To date, there are no published opinions that have addressed this new language. Copeland v. State, 277 So. 3d 1137 (Fla. 5th DCA 2019), a post-amendment case, dealt with a similar scenario (the defendant pointing his firearm at another individual but no discharge of the weapon) and similar argument on appeal (ineffective assistance of counsel for failing to request the nondeadly force instruction). See id. at 1140-41. Copeland quotes SYG language from the 2014 amended “use of force” self-defense statute, specifically section 776.012(1), Florida Statutes (2017). Id. at 1139 n.3. However, in finding ineffective assistance of counsel, Copeland cites solely to cases decided prior to the 2014 addition of the “or threatens” language and fails to address the impact of the new language. 2 As set forth in the cases cited above, the discharge of a firearm constitutes “the use of deadly force.” The 2014 amendments to chapter 776 include a definition of “deadly force,” albeit “[a]s applied to a law enforcement officer or correctional officer acting in the performance of his or her official duties.” § 776.06(1), Fla. Stat. (2014). 3 “[T]he term ‘deadly force’ means force that is likely to cause death or great bodily harm and includes, but is not limited to: (a) The firing of a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm . . . .” Id. This court has found that, for the purposes of self-defense, even the accidental discharge of a firearm is the use of deadly force as a matter of law. Hosnedl v. State, 126 So. 3d 400, 405 (Fla. 4th DCA 2013). Thus, threatening to discharge one’s firearm is a threat of deadly force regardless of an intent to actually cause death or great bodily harm of the recipient of the threat. 1 The 2014 legislation added “threatened use of force” language to sections 776.012, 776.013, 776.031, 776.032, 776.041, and 776.051. 2 A second post-2014 opinion that references the amended chapter 776, here section 776.013(1), Florida Statutes (2014), is Marty v. State, 210 So. 3d 121 (Fla. 2d DCA 2016). Defendant’s initial brief discusses Marty, as it also involves a defendant displaying a firearm and a SYG hearing. However, the Marty opinion does not cite to the “threatened use” language in the amended statute and relies upon pre-2014 caselaw to conclude that “pointing a gun [at another individual] without firing at her did not, as a matter of established law, constitute deadly force.” Id. at 125. Moreover, despite the citation to the 2014 statute, it is unclear whether the trial court adjudicated the case prior to the effective date of the 2014 amendments (the district court docket number for the appeal is 14-579). 3 The “Presumption of Consistent Usage” holds that “A word or phrase is presumed to bear the same meaning throughout a text . . . .” ANTONIN SCALIA & BRYAN A. GARNER, Reading Law: The Interpretation of Legal Texts 170 (2012). 10  Having set the factual and legal background, we now proceed to the first question, which is one of first impression. In a case where the defendant did not discharge his loaded firearm but was found to have pointed it at another individual while vocally ordering that person to do something (in this case, to get down on the ground), did the failure to argue that this situation could be viewed as “threatening to use non-deadly force” constitute ineffective assistance of counsel? A “threat” is “[a] communicated intent to inflict harm or loss on another or another’s property, esp. one that might diminish a person’s freedom to act voluntarily or with lawful consent; a declaration, express or implied, of an intent to inflict loss or pain on another . . . .” Threat, BLACK’S LAW DICTIONARY (11th ed. 2019). When a person points a loaded firearm 4 at another person and issues a command to do something, this is generally an implied declaration that the failure to abide by the command will result in the discharge of the firearm, i.e., deadly force. See, e.g., State v. Foster, 955 P.2d 993, 996 (Ariz. Ct. App. 1998) (concluding that “[c]ertainly, pointing a gun at a person would be threat of deadly physical force” and referencing Ariz. Rev. Stat. Ann. § 13-405 (1997), which provides a defense for “threatening or using deadly physical force”); see also Cole Estate of Richards v. Hutchins, 959 F.3d 1127, 1132 (8th Cir. 2020) (“Generally, an individual’s mere possession of a firearm is not enough for an officer to have probable cause to believe that individual poses an immediate threat of death or serious bodily injury; the suspect must also point the firearm at another individual or take similar ‘menacing action.’”); Commonwealth v. Alexander, 260 Va. 238, 241, 531 S.E.2d 567, 568 (2000) (stating there is no right to threaten the use of deadly force in “protection of personal property,” referencing Virginia Code § 18.2-282 (West 2020), which makes it “unlawful for any person to point, hold or brandish any firearm . . . whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another”); ALASKA STAT. § 11.81.900(b)(16) (West 2020) (providing that “deadly force” includes “intentionally . . . pointing a firearm in the direction of another person . . . and intentionally placing another person in fear of imminent serious physical injury by means of a dangerous instrument”). Accordingly, under the facts of this case per Defendant’s own account of the encounter, and in light of the addition of the “or threatened use” language to the SYG statutes, we cannot conclude that Defendant’s counsel’s failure to request a non-deadly force ruling at the SYG hearing 4 Defendant acknowledged that his gun was loaded with one round in the chamber. 11 constitutes a “rare instance[]” in which ineffective assistance of counsel is apparent on the face of the record. Cf. Copeland, 277 So. 3d at 1140. Similarly, we cannot conclude that there is a “reasonable probability” that, if counsel had argued Defendant used or threatened to use non-deadly force in self-defense, the result of the SYG proceeding would have been different. Cf. Strickland, 466 U.S. at 694; Michel v. State, 989 So. 2d 679, 680-82 (Fla. 4th DCA 2008) (holding that “[t]he face of the record demonstrates ineffective assistance of counsel arising out of the trial court’s failure to give an instruction on the justifiable use of non-deadly force”). B. Alleged Fundamental Trial Court Error in Giving the Deadly Force Jury Instruction at the SYG Hearing After the trial court denied Defendant’s motion to dismiss (following the SYG hearing), the case proceeded to a jury trial. Defendant testified, as did the alleged victim and the arresting officers. At the charge conference before the parties gave their closing arguments, Defendant requested the non-deadly force standard jury instruction and the State asked for the deadly force instruction. Both parties quickly agreed on the non-deadly force instruction. Defense counsel initially opposed the State’s request that the deadly force instruction also be given, relying upon Cunningham. However, once the trial court ruled that it would give both the non-deadly and the deadly force instructions, Defendant did not object. Consequently, Defendant’s argument that the trial court erred in giving the deadly force instruction is not preserved for appeal. Absent a contemporaneous objection at trial, the giving or failure to give a jury instruction can be raised on appeal only if fundamental error occurred. Cannon v. State, 180 So. 3d 1023, 1036 (Fla. 2015); Rodenberg v. State, 198 So. 3d 930, 933 (Fla. 4th DCA 2016). For a jury instruction issue to rise to the level of fundamental error, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Reed v. State, 837 So. 2d 366, 370 (Fla. 2002) (citation omitted). “[F]undamental error occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense . . . of a fair trial.’” Ramirez v. State, 125 So. 3d 171, 175 (Fla. 4th DCA 2013) (quoting Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)). Here, as discussed above, there was no error, let alone fundamental error in the trial court giving the deadly force instruction (in addition to the non-deadly force instruction). Defendant’s arguments on appeal are rooted in the cases dealing with the pre-2014 statute. As such, 12 Defendant’s cases dealt with an instruction pertaining only to “the use of” force; the instant case has to be examined as a “threatened use of force.” “This court has explained how to determine whether to give the non- deadly force instruction, deadly force instruction, or both: ‘If the type of force used is clearly deadly or nondeadly as a matter of law, only the applicable instruction should be given.’” Cunningham, 159 So. 3d at 277 (emphasis added) (quoting Williams v. State, 727 So. 2d 1062, 1062 (Fla. 4th DCA 1999)). In a case where the defendant points a gun at an individual and orders him to get on the ground, it cannot be said that the trial court erred, let alone fundamentally erred, in instructing the jury to consider whether Defendant threatening to use deadly force was justified (because of a “reasonable belie[f] that such conduct [was] necessary to prevent the imminent commission of a forcible felony.” § 776.031(2), Fla. Stat. (2017)). C. Request for Remand for a new SYG Hearing utilizing the appropriate Burden of Proof The incident at issue occurred in March 2017. The SYG hearing in this case took place one year later (there had been an earlier mistrial). During the year between the incident and the SYG hearing, the legislature added a new provision to the SYG law. Section 776.032(4), Florida Statutes (2017), provides that “[i]n a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).” The effective date of this new subsection was June 9, 2017. Over Defendant’s objection, the trial court held that the new provision did not apply retroactively to this case and required that Defendant establish his SYG self-defense immunity by the preponderance of the evidence. The Florida Supreme Court has subsequently determined that the 2017 amendment to the statute, which places the burden of proof on the State, was applicable to SYG hearings held on or following the effective date of the statute. See Love v. State, 286 So. 3d 177, 190 (Fla. 2019) (“Section 776.032(4) is a procedural change in the law and applies to all Stand Your Ground immunity hearings conducted on or after the statute’s effective date.”). Defendant’s initial immunity hearing occurred after the effective date of the amended statute, and thus the burden should have been on the State to rebut Defendant’s prima facie claim of self-defense by clear and convincing evidence. See § 776.032(4), Fla. Stat. (2017). 13  We are thus presented with the question of whether we should remand this case for a new SYG hearing wherein the State will have the burden of proving by clear and convincing evidence that Defendant was justified in his use of force. This question has been posed to two of our sister courts, and their responses are in conflict. 5 In Nelson v. State, 295 So. 3d 307 (Fla. 2d DCA 2020), the Second District dealt with the same situation as presented here: the defendant’s motion to dismiss was denied following a SYG hearing wherein the court wrongfully placed the burden of proof on the defendant, and the defendant was subsequently found guilty by a jury. Id. at 307. The Second District remanded the case to the trial court, determining that the defendant “was entitled to a new immunity hearing conducted under the amended statute.” Id. The First District acknowledged Nelson but took a different approach, certifying conflict. Boston v. State, 45 Fla. L. Weekly D1297, 2020 WL 2781874 (Fla. 1st DCA May 29, 2020). The Boston opinion reasoned: Here, the trial court properly instructed the jury on Boston’s self-defense claim and the State’s burden to prove Boston’s guilt beyond a reasonable doubt. The jury found the State met its burden and returned a guilty verdict. Because the State overcame Boston’s self-defense claim by meeting the heavier trial burden of proof beyond a reasonable doubt, the trial court’s failure to require the State to overcome Boston’s immunity claim with clear and convincing evidence was cured. Under these facts, Boston is not entitled to a new immunity hearing. Thus, we affirm his judgment and sentence. Id. at *3. We agree with the First District that, since “[t]he State’s trial burden of overcoming the defendant’s self-defense claim by proof beyond reasonable doubt is heavier than its pretrial burden of overcoming the defendant’s 5 This court also faced a similar scenario, in Elder v. State, 45 Fla. L. Weekly D1241, 2020 WL 2745324 (Fla. 4th DCA May 27, 2020). However, although the trial court erroneously placed the burden on the defendant, it also “ruled that even if the most recent version of section 776.032(4) were ‘retroactively applied to put the burden on the State,’ the State still met its burden.” Id. at *4. We held that remand for a new SYG hearing was not necessary “where a trial court’s initial [SYG] ruling encompassed both standards of proof.” Id. at *5. 14 self-defense immunity claim by clear and convincing evidence,” the error with respect to the burden of proof at the SYG hearing can be “cured if the State establishes the defendant’s guilt at trial by proof beyond a reasonable doubt.” Id. at *2 (citing Love, 286 So. 3d at 180). Per the jury verdict in this case, we find that the burden of proof error at the SYG hearing was cured and there is no need to remand this case for another hearing. Conclusion Pointing a firearm at another individual without discharging it is not “use of” deadly force, and that was the pertinent issue in an asserted defense of property case prior to the effective date of the 2014 amendments to Florida’s self-defense/SYG statutes. Defendant’s actions at issue in this case occurred after the effective date, and therefore our inquiry turns to the added language, focusing on whether Defendant’s actions constitute justifiable “threatened use of” deadly force. As explained above, we answer that question in the affirmative and find neither ineffective assistance of counsel nor fundamental error in, respectively, the trial court’s and jury’s consideration of Defendant’s conduct as a “threatened use” of deadly force. As Defendant received a fair trial, with the State responsible for proving guilt beyond a reasonable doubt, we agree with the First District that there is no need to remand this case for another SYG hearing, though we certify conflict with the Second District’s Nelson opinion. Affirmed; Conflict Certified. GROSS and GERBER, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 15