Aggravated Assault vs. Attempted Homicide in Florida

August 1, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In Florida, aggravated assault with a deadly weapon without intent to kill, or with the intent to commit a felony (Fla. Stat. 784.021) is a very serious criminal offense. It is typically charged as a third-degree felony punishable by up to 5 years in prison and a $5,000 fine. If the aggravated assault occurs in furtherance of a riot or aggravated riot, it is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine.

As some of Florida’s attempted homicide laws are quite broad, an act most may believe is an aggravated assault may actually be charged as attempted homicide offense (such as attempted second-degree murder or attempted manslaughter by act). 

Because of the various forms of attempted homicide crimes in Florida – some of which do not require a specific intent to kill a victim – it is important to distinguish between these attempted homicide offenses and aggravated assault. 

This blog will discuss the elements, penalties and defenses to aggravated assault and Florida homicide laws (attempted first-degree murder, attempted second-degree murder, attempted felony murder, and attempted manslaughter by act).

Aggravated Assault Charges in Florida

Aggravated assault is an assault that occurs either with the use of a deadly weapon without the intent to kill the victim, or with the intent to commit a felony.

For someone to be proven guilty of aggravated assault in Florida, the State must establish all of the following beyond a reasonable doubt:

• The defendant made an intentional and unlawful threat, by word or act, to do imminent violence to the victim 
• The defendant had the apparent ability to carry out that threat
• The assault was made with a deadly weapon (gun, knife, etc.) or with the intent to commit a felony
• The act was legally unjustified (e.g. not in self-defense)

Aggravated assault is a third-degree felony in Florida, punishable by up to 5 years in prison and a $5,000 fine. It is an enactable offense which may be charged as a second-degree felony (up to 15 years in prison and a $10,000 fine) if done in furtherance of a riot or aggravated riot. 

In an aggravated assault case, the State must prove only that the actions taken by the defendant were sufficient to create a well-founded fear of imminent violence in the victim – even if the actual victim did not subjectively develop that fear during the alleged aggravated assault. Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020).

A deadly weapon in Florida is considered any instrument that was used in a manner likely to cause death or great bodily harm during a crime. This can include firearms (but usually not antiques), knives, bats, vehicles, or even something like a beer bottle if someone is hit over the head with it. Cloninger v. State, 846 So.2d 1192 (Fla 4th DCA 2003)

Until 2016, aggravated assault with a deadly weapon carried a 3-year mandatory minimum prison sentence under Florida’s 10-20-Life law if a firearm was carried or brandished during the offense. Though this has since been repealed, an aggravated assault that involves the discharge of a firearm still triggers a 20-year minimum mandatory prison term in accordance with the statute.

Examples of aggravated assault may include:

• A man lifts his shirt to reveal a gun and tells a bar customer during an argument to “get out of here or else” (aggravated assault with a firearm)
• During a heated argument over who clogged the toilet, one friend pulls a steak knife on another and threatens to “cut him up” (aggravated assault with a knife)
• A man jumps out of his car and demands a child on the sidewalk “get in” or “I’ll make sure you disappear” (aggravated assault with intent to commit felony kidnapping)

Defenses to aggravated assault may include any of the following, depending on the facts of a given case:

• Self-defense/defense of others: If the conduct was a reasonable and proportionate response to the threat faced
• Lack of intent to threaten or cause fear 
• No apparent ability to carry out the threat (such as threatening to beat someone with a bat that’s 2,000 miles away)
• Procedural challenges (motions to suppress, Miranda waiver issues, etc.)
• False allegations
• Alibi/mistaken identity
• Conditional or vague threat
• No intent to commit an underlying felony, only a misdemeanor

Aggravated assault has key differences from each of Florida’s attempted homicide offenses. The first (and perhaps most well-known) of these offenses is attempted first-degree murder (Fla. Stat. Sections 782.04(1)(a) and 777.04). 

First-Degree Murder Charges in Florida

For the State to prove attempted first-degree murder in Florida, all of the following must be established beyond a reasonable doubt:

• The defendant had a specific intent to cause the death of the victim
• The defendant performed an overt act that went beyond mere preparation towards committing the murder, which failed due to intervention or failure to complete the act
• The act was planned or reflected upon before execution, even briefly, showing a conscious and deliberate decision to kill (Wilson v. State, 493 So. 2d 1019 (Fla. 1986))
• The act was not legally justified

Note: A defendant may be convicted of both attempted first-degree murder and attempted felony murder for the same act. Williams v. State, 90 So.3d 931 (Fla. 1st DCA 2012).

Attempted first-degree murder is typically classified as a first-degree felony, punishable by up to 30 years in prison and a $10,000 fine. Under certain circumstances, however, the offense is punishable by up to life imprisonment without parole (e.g. if a law enforcement officer is the alleged victim).

Florida’s 10-20-Life law (Fla. Stat. 775.087) entirely applies to attempted first-degree murder. This means:

• If a firearm is carried or brandished during the commission of the attempted first-degree murder, a mandatory minimum sentence of 10 years in prison
• If the firearm is discharged but nobody is injured or killed, a mandatory minimum sentence of 20 years in prison
• If the firearm is discharged and someone is injured, a mandatory minimum sentence of 25 to life in prison (same as if the victim dies)

Hypothetical examples of attempted first-degree murder may include:

• Jane puts rat poison in John’s drink after planning it, intending to kill him, though he never ends up drinking it
• Mike attempts to ambush a coworker he dislikes by hiding in the coworker’s bushes then shooting at him, but misses

Defenses to attempted first-degree murder may include any of the following:

• Lack of intent to kill (e.g. if the defendant tried to hit someone in the legs with a bat – intent solely to injure is not attempted first-degree murder)
• Absence of premeditation: The act was impulsive and not planned, which may reduce the charge to attempted second-degree murder or attempted manslaughter (depending on the facts)
• Self-defense or defense of others: There was a threat of death or serious bodily harm (distinct from mere bruises) under Florida law 
• Abandonment: The defendant voluntarily abandoned the attempt before completing the act (such as driving to commit the act then deciding against it and going home)
• Insufficient evidence
• Mistaken identity/alibi: Especially potent if the only evidence tying the defendant to the alleged offense is weak, such as unreliable eyewitness testimony or dark surveillance footage

Difference Between Aggravated Assault and Attempted Murder

The key differences between aggravated assault and attempted first-degree murder are:

• Aggravated assault does not require premeditation (time to reflect); attempted first-degree murder does
• Aggravated assault does not require specific intent to kill (and usually does not involve intent to kill at all); attempted first-degree murder does
• Aggravated assault carries significantly lighter legal penalties; though still serious (third-degree/second-degree felony vs. first-degree/life felony)
• Aggravated assault requires a victim to know about/be in fear of imminent and unlawful violence; attempted first-degree murder does not (such as putting rat poison in someone’s beer that they never drink)

Attempted Second-Degree Murder in Florida

The next attempted homicide charge in Florida is attempted second-degree murder (Fla. Stat. 782.04(2)). This occurs when someone commits an act that poses a substantial risk of death to a victim without premeditation (reflection beforehand). Though it does not require a specific intent to kill, the act must evince a depraved mind showing reckless disregard for human life. Brown v. State, 790 So.2d 389 (Fla. 1999). 

For someone to be proven guilty of attempted second-degree murder in Florida, the State must prove all of the following beyond a reasonable doubt:

• The defendant intentionally committed an overt act that could have but did not result in the death of a victim 
• The act was imminently dangerous to another person (other than the perpetrator) and demonstrated a depraved mind without regard for human life
• The overt act went beyond mere preparation (mere preparation involves arranging the means to commit the crime, per Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018))

For an act to be done with a depraved mind, the State must prove all of the following are true of that act:

• A person of ordinary judgment would know the act is reasonably certain to kill or to do serious bodily injury to another person
• It is done from a place of ill will, hatred, spite or evil intent
• It is of such a nature that the act itself indicates indifference to human life

Examples of acts that may be charged as attempted second-degree murder may include:

• A man, having just been insulted, fires several shots into a fleeing crowd trying to scare them
• A teenager deliberately throws a Molotov cocktail into a busy restaurant, causing a stampede that seriously injures a victim

Attempted second-degree murder is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine if no firearm is involved.

However, the offense is subject to Florida’s 10-20-Life law, meaning:

• If a firearm is brandished or carried during the offense, a mandatory minimum prison term of 10 years
• If the firearm is discharged, a mandatory minimum prison term of 20 years
• If the firearm is discharged and injury results, a mandatory minimum prison term of 25 years to life (same as if the victim dies)

Important: Florida’s 10-20-Life law overrides the typical maximum sentences for the felonies covered by the statute when the mandatory minimum under the 10-20-Life law exceeds the usual sentencing cap. Mendenhall v. State, 48 So. 3d 740 (Fla. 2010). 

Defenses to attempted second-degree murder may include:

• Self-defense/defense of others
• Lack of a depraved mind
• Abandonment (the act did not go beyond mere preparation)
• Procedural challenges
• Lack of imminent danger to another (such as firing warning shots in a direction clearly away from the alleged victim)

Difference Between Aggravated Assault and Attempted Second-Degree Murder

Given the above, there are some key differences between aggravated assault and attempted second-degree murder. These include:

• Aggravated assault involves a threat of unlawful violence using a deadly weapon or with intent to commit a felony; attempted second-degree murder involves the intentional depraved-mind act (such as shooting into a crowd) that poses a substantial danger to human life (even without intent to kill)
• Aggravated assault is a third-degree felony; attempted second-degree murder is a second-degree felony
• Aggravated assault is partially enhanceable under 10-20-Life (if the firearm is discharged, but not if it’s only carried or brandished); attempted second-degree murder is entirely enhanceable (even if the firearm is simply carried or brandished, 10-year mandatory minimum)

The next attempted homicide offense in Florida is attempted felony murder (Fla. Stat. 782.051 and 777.04). This occurs when a person attempts to commit a specific felony (such as robbery or burglary) – and during their attempt commits a separate, intentional act that could have (but did not) caused death to another.

For someone to be proven guilty of attempted felony murder in Florida, the following must be established beyond a reasonable doubt:

• The defendant was engaged in an enumerated predicate felony (e.g. drug trafficking, arson, robbery, kidnapping, burglary, sexual battery, etc. under 782.051)
• During the commission of that felony, the defendant committed, aided or abetted an intentional act that was not an essential element of the felony
• The act could have caused the death of a victim but did not

Note: Courts have held that dual convictions for attempted second-degree murder and attempted felony murder violate a defendant’s protection against double jeopardy in Florida. Mitchell v. State, 830 So.2d 944 (Fla. 5th DCA 2002)

Attempted Felony Murder Charges in Florida

Attempted felony murder is a first-degree felony in Florida, punishable by up to 30 years in prison and a $10,000 fine. With certain aggravating factors (e.g. victim is a law enforcement officer), attempted felony murder becomes punishable by up to life in prison without the possibility of parole.

Like Florida’s attempted first-degree murder and attempted second-degree murder laws, attempted felony murder triggers the state’s 10-20-Life law (10 year mandatory minimum for carrying/brandishing, 20 year mandatory minimum for discharge, 25 year to life mandatory minimum for injury or death).

Examples of attempted felony murder in Florida may include:

• During an armed home burglary, the defendant fires his gun into a wall near a huddling family as an intimidation tactic
• Someone commits a sexual battery and then throws a heavy object at the victim’s head immediately thereafter, missing narrowly 

Defenses to attempted felony murder in Florida may include any of the following:

• Lack of an intentional act beyond the felony’s essential elements (potential double jeopardy issue)
• Self-defense or defense of others (though this is greatly complicated if the defendant is convicted of an underlying felony, with the possible exception of felon in-possession of a firearm)
• Challenging the underlying felony 
• Abandonment
• No act that could have resulted in the death of a victim

Key differences between aggravated assault and attempted felony murder in Florida are:

• Aggravated assault is a third-degree felony; attempted felony murder is a first-degree felony
• Aggravated assault involves an unlawful threat of violence; attempted felony murder involves an intentional an act that could have killed a victim during the commission of an enumerated felony
• Aggravated assault requires the use of a deadly weapon/the assault to be done with an intent to commit an underlying felony; attempted felony murder does not require a deadly weapon be used and the attempted murder must not be an essential ingredient (element) of the underlying felony 

Attempted Manslaughter in Florida

The final form of attempted homicide in Florida is attempted manslaughter by act (Fla. Stat. 782.07 and 777.04). Like attempted second-degree murder and attempted felony murder, a specific intent to kill is not required. Attempted manslaughter by act involves the intentional commission of an act that would have caused the death of another but fails – without lawful justification. State v. Montgomery, 39 So. 3d 252 (Fla. 2010)

For someone to be guilty of attempted manslaughter by act, the State must prove all of the following beyond a reasonable doubt:

• The defendant intentionally committed an act that could have caused death
• The act was not intended to kill
• The act was not excusable or justified legally
• The act did not result in death due to intervention or failure

Attempted manslaughter by act is a third-degree felony in Florida punishable by up to 5 years in prison and a $5,000 fine. It is also subject to Florida’s 10-20-Life law – like all other attempted homicide offenses – if it involves the use of a firearm (10 years minimum for brandishing, 20 years for discharge, 25 to life for injury or death resulting from discharge).

Examples of attempted manslaughter by act may include:

• During a heated bar fight, a man shoves someone near a railing; the victim tumbles over the balcony edge and falls 9 feet, breaking a leg and arm
• A man tosses a heavy piece of furniture off a balcony which is about to hit a woman on the ground, but someone pushes her out of the way in time to avoid any injury

Defenses to attempted manslaughter by act include:

• Lack of an intentional act
• Self-defense or defense of others
• Abandonment (such as picking up the furniture to throw it over the balcony, but then setting it back down)
• Procedural challenges 
• Mistaken identity/alibi
• False allegations

The differences between aggravated assault (Fla. Stat. 784.021) and attempted manslaughter by act are:

• Aggravated assault does not require an act that could have resulted in death; attempted manslaughter by act does
• Aggravated assault involves a deadly weapon or intent to commit a felony other than the aggravated assault; attempted manslaughter by act requires neither
• Attempted manslaughter by act is entirely covered by 10-20-Life mandatory minimums; aggravated assault is not if the firearm is only carried or brandished (not discharged)

In sum, aggravated assault in Florida is different in key ways from attempted homicide offenses (including attempted first-degree murder, attempted second-degree murder, attempted felony murder, or attempted manslaughter by act). 

If someone is charged with aggravated assault or attempted homicide (or both), it is key to understand these laws, and to contact an experienced and aggressive attorney as soon as possible.

Aggravated assault with a deadly weapon and attempted homicide are very serious charges in Florida that can carry lengthy prison sentences and heavy financial penalties. If someone is charged, it is vital to find experienced and aggressive legal representation as soon as possible.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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