Aggravated Assault…Without a Firearm? Major Florida Court Reverses Conviction Based on ‘Impossible’ Verdict

November 11, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In Florida, aggravated assault is a very serious felony offense. Under Fla. Stat. 784.021, there are two kinds of aggravated assault:

• Aggravated assault with a deadly weapon (such as a firearm)
• Aggravated assault with the intent to commit a separate felony

Aggravated assault is typically punishable by up to 5 years in prison and a $5,000 fine, as it is a third-degree felony. For more on the potential penalties an aggravated assault conviction carries in Florida, click here.

Aggravated assault with a deadly weapon, including a firearm (if there is evidence a firearm was used), is a common charge in Florida. For someone to be found guilty of aggravated assault with a deadly weapon, it must be proven that they did the following beyond a reasonable doubt:

• The defendant threatened an intentional and unlawful threat of imminent violence 
• The defendant had the apparent apparent ability to carry out the threat 
• The threat was of such a nature as to create well-founded fear in the victim that violence was about to occur 
• A deadly weapon (firearm, etc.) was involved

Note: For purposes of charging aggravated assault, a deadly weapon is defined as any object that is used or threatened to be used in a manner likely to cause death or great bodily harm. This may include knives, BB guns, firearms, bats, and more. Cloninger v. State, 846 So.2d 1192 (Fla. 4th DCA 2003)

In cases where aggravated assault with a firearm is charged, a jury must find someone guilty of each and every element of the crime for a conviction to be handed down. So, what happens if a defendant is found guilty of aggravated assault by a jury (“guilty” is checked on the jury form), but the jury finds they did not possess a firearm (or other deadly weapon) during the crime? 

Though this may seem very unlikely and quite counterintuitive, that’s exactly what happened in one major Florida case: Proctor v. State, 205 So. 3d 784 (Fla. 2d. DCA 2016). Let’s break down Proctor and its impact upon aggravated assault law and jury deliberations in Florida.

KEY CASE: Proctor v. State, 205 So. 3d 784 (Fla. 2d. DCA 2016)

In Proctor, the defendant (Proctor) was accused of a series of crimes, including:

• Aggravated battery with a deadly weapon on a person over 65 (his father), with possession of a firearm
• Aggravated assault with a deadly weapon on a person over 65, with possession of a firearm, also committed against his father
• Aggravated assault with a deadly weapon, with discharge of a firearm, committed against Proctor’s girlfriend
• Grand theft of a firearm
• Grand theft of a motor vehicle

At trial, Proctor was found guilty on all counts except for aggravated battery. Evidence included testimony of both Proctor’s girlfriend and his father that he pointed a gun at them, and images of their injuries.

However, there was a caveat. On Count 2 of the indictment (aggravated assault with a firearm against his father), the jury found Proctor guilty of aggravated assault. But the jury found that Proctor did not actually possess a firearm during the commission of the offense.

Despite the jury finding of no firearm use, the trial judge imposed a fifteen-year sentence for the aggravated assault with a firearm charge (maximum penalty). This included a 3-year mandatory minimum prison term for use of a firearm, as aggravated assault with a firearm was previously covered by Florida’s 10-20-Life law.

On appeal to Florida’s 2nd District Court of Appeal (Greater Tampa area), Proctor argued that his sentence for the aggravated assault “with a firearm” was unlawful. He cited the doctrine of “true inconsistency” in jury verdicts. Proctor observed that since the jury found him guilty of the crime but found he did not possess a firearm, he was actually not guilty of a key element.

The 2nd DCA agreed with Proctor, holding that his conviction for aggravated assault with a firearm could not stand. It wrote:

“Proctor’s conviction on count two was improper because the inconsistent findings on count two result in true inconsistent verdicts. In this case, the firearm finding is legally interlocked with the charge of aggravated assault with a deadly weapon because the finding of the firearm was necessary to support the conviction for aggravated assault. In other words, under the facts of this case, the firearm was a necessary element of the aggravated assault.”

In essence, because the possession of the firearm during the alleged assault was what made it “aggravated,” the jury could not hand down a conviction (and Proctor could not be sentenced) for aggravated assault while also saying Proctor did not have a gun. The 2nd DCA found that the error was “fundamental,” requiring the reversal of the verdict:

“Because the jury found that Proctor did not possess a firearm during the assault, thus negating the deadly weapon element of aggravated assault, the jury convicted Proctor under a theory of aggravated assault that was not charged in the information, thereby resulting in fundamental error. … True inconsistent verdicts are not permitted in Florida based on ‘the possibility of a wrongful conviction,’ Powell, 674 So.2d at 733, and the possibility of such a wrongful conviction outweighs the possibility of a jury pardon.”

As the jury found that Proctor committed the assault without the use of a deadly weapon, the 2nd DCA entered a verdict of guilty for simple assault on a person over 65, a misdemeanor. It wrote:

“We reverse Proctor’s conviction for aggravated assault with a deadly weapon on a person over sixty-five and remand for the trial court to enter a judgment on the lesser included offense of assault on a person over sixty-five and to resentence Proctor accordingly.”

In sum, Proctor v. State, 205 So. 3d 784 (Fla. 2d. DCA 2016) is a seminal case in Florida aggravated assault law that significantly contributes to the doctrine of “true inconsistency” in jury verdicts. 

If someone is found guilty of aggravated assault with a deadly weapon, but a jury does not make a specific finding that a deadly weapon (e.g. a firearm) was used during the commission of the offense, such a verdict cannot stand. This is because the jury is effectively finding a defendant committed a simple assault (no firearm) and aggravated assault (with a firearm) at the same time. 

According to Proctor, the proper remedy is for a District Court of Appeal to enter a conviction for simple assault (the lesser-included offense) and toss the aggravated assault conviction.

Aggravated assault with a deadly weapon and aggravated battery 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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