Does Aggravated Assault with a Firearm in Florida Require A Gun Be Pointed at Someone?

July 8, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In Florida, aggravated assault with a firearm is a very serious felony offense. Under Fla. Stat. Section 784.021, aggravated assault with a firearm is a third-degree felony if it is done without the intent to kill the victim or with the intent to commit a felony. This is punishable by up to 5 years in prison and a $5,000 fine. 

Sometimes, aggravated assault with a firearm will be charged without a firearm being directly pointed at a particular victim. But given the definition of assault under Florida law, can someone be convicted of aggravated assault with a firearm if they do not point it at a particular person? The answer is yes… but it depends on the circumstances.

This article will discuss the offense of aggravated assault with a firearm in Florida, including the elements of the crime. It will also answer the key question of whether brandishing a firearm without pointing it at a specific victim can support an aggravated assault with a firearm conviction.

Under Fla. Stat. 784.021, aggravated assault with a firearm is a specific form of aggravated assault with a deadly weapon. A deadly weapon can include any of the following:

• Firearms (loaded or unloaded if used in a threatening manner)
• Knives or dirks
• Baseball bats
• Any object used or threatened to be used in a way likely to produce great bodily harm or death (State v. Rodriguez, 402 So. 2d 86 (Fla. 3d DCA 1981). 

Under Florida Statutes Section 790.001, a firearm is defined as any weapon which will, is designed to, or may readily be converted to:

• Expel a projectile by the action of an explosive
• Any firearm muffler or silencer
• The frame or receiver of a firearm
• Any destructive device
• Any machine gun

For someone to be found guilty of aggravated assault with a firearm in Florida, the State must prove the following elements beyond a reasonable doubt:

• The defendant made an intentional threat to harm the victim(s) by word or by act
• The defendant had the apparent ability to carry out that threat
• The threat created a well-founded fear in the mind of the victim that violence was about to happen
• The assault was made with a deadly weapon (in this case, a firearm) and was used or displayed in a manner that enhances the threat

Aggravated assault with a firearm is a third-degree felony punishable by up to 5 years in prison. 

Depending on the facts of the case, however, a prosecutor may charge someone for aggravated assault with a firearm when a more proper charge would be improper exhibition of a firearm. 

Improper exhibition of a firearm (Fla. Stat. 790.10) occurs when someone exhibits a firearm in a “rude, careless, angry or threatening” manner in the presence of one or more people. However, improper exhibition of a firearm does not rise to the level of aggravated assault due to the lack of a well-founded fear of imminent violence that the display of the firearm creates. 

Because improper exhibition is a first-degree misdemeanor (punishable by up to 1 year in jail and a $1,000 fine), charging aggravated assault with a firearm presents a defendant with much higher exposure to prison time and hefty fines. 

This raises the question – if someone does not point a gun directly at a person, is this improper exhibition rather than aggravated assault? If someone holds up their firearm to show them they are armed, but does not point it directly at another person or accompany this with threats, is improper exhibition or aggravated assault with a firearm the proper charge? 

Florida’s courts have noted that for an aggravated assault conviction to stand, a firearm must be displayed in a manner that constitutes an unlawful threat to do violence which creates a well-founded fear in the mind of the victim that violence will take place. Simply pulling out a firearm, without pointing it at someone, may not rise to the level of felony aggravated assault – unless it is done in a way that intentionally conveys an unlawful violent threat.

Florida’s courts have noted that regardless of whether a gun is loaded, pointing this at someone (if not in self-defense) constitutes aggravated assault with a firearm. Bass v. State, 232 So.2d 25 (Fla. 1st DCA 1970). Moreover, courts have held that pointing a gun in a “threatening manner” within its range justifies a victim’s inference of imminent violence, regardless of if the gun is loaded. Gilbert v. State, 347 So.2d 1087 (Fla. 3d. DCA 1977)

Critically, the victim’s well-founded fear of imminent violence must be established. In M.M. v. State, the 1st DCA held that if the State does not present any evidence that the alleged victim of an aggravated assault with a firearm had a reasonable fear of imminent violence, a conviction for this offense cannot stand as a matter of law. M. M. v. State, 391 So.2d 366 (Fla. 1st DCA 1980)

Florida’s courts acknowledge that is a firearm is not pointed directly at someone, it is more difficult to show that their fear of imminent violence was well-founded. But this does not mean it is impossible. In some cases, a suspect may not point a firearm directly at a particular person, and still be convicted of aggravated assault with a firearm. Green v. State, 706 So.2d 884 (Fla. 4th DCA 1998).

In Green, the appellant produced a firearm and pointed it at a passenger window of a vehicle containing four people while talking about “spraying” them. Despite the fact that his firearm was not pointed at any particular person, every passenger in the car testified that they were put in fear that violence was about to occur. The jury convicted Green.

On appeal, Green argued that since he was pointing the gun at no person in particular, aggravated assault with a firearm was an inappropriate charge. But the court disagreed, holding that despite not being directly in the firearm’s path, the victims developed a well-founded fear of imminent violence against them based on the totality of the circumstances (including Green’s spoken threat).

In sum, aggravated assault with a firearm is a very serious felony in Florida. It is a third-degree felony punishable by up to 5 years in prison.

Florida’s courts have held that if sufficient evidence is offered to prove a victim’s fear of imminent violence was well-founded due to the defendant’s use of a firearm, this can support an aggravated assault with a firearm conviction – even if the firearm was not directly pointed at the victim. 

However, if there is no evidence that a defendant’s conduct created a well-founded fear of imminent violence, an aggravated assault with a firearm conviction cannot stand as a matter of law. M. M. v. State, 391 So.2d 366 (Fla. 1st DCA 1980). Instead, someone may be charged with the lesser-included crime of improper exhibition of a firearm (a misdemeanor), depending on the facts of a case. 

Aggravated assault with a firearm is a very serious charge in Florida that can carry lengthy prison sentences and heavy financial penalties. If someone is formally 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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