FL Judge Discusses ‘Reasonable Person’ Standard for Well-Founded Fear in Aggravated Assault Cases

March 5, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Case Summary

CASE:  S.R.M. v. State, 66 So.3d 317 (Fla. 2d DCA 2011)

Charge(s): Aggravated Assault with a Deadly Weapon

Outcome: Conviction AFFIRMED, as the defendant acted in a manner that would have put a reasonable person in fear of imminent, unlawful violence.

About Aggravated Assault in Florida

In Florida, aggravated assault (Fla. Stat. 784.021(1)(a) and (1)(b)) is a very serious felony. There are two types of aggravated assault in Florida – aggravated assault with a deadly weapon without intent to kill, and aggravated assault with the intent to commit a separate felony. Both offenses are third-degree felonies, punishable by up to 5 years in prison and a $5,000 fine.

For someone to be guilty of aggravated assault in Florida (Fla. Stat. 784.021), the State must prove all of the following beyond a reasonable doubt:

• The defendant made 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 (these first three elements constitute simple assault)
• A deadly weapon was involved or the defendant intended to commit a separate felony at the time the threat was made 

Note: Though aggravated assault is typically considered a third-degree felony, it is enhanceable to a second-degree felony under certain circumstances (e.g. victim is a police officer). For more, click here.

In Florida, examples of aggravated assault with a deadly weapon without intent to kill (Fla. Stat. 784.021(1)(a)) include any of the following:

•  During a road rage incident, A gets out of his car and points his gun at B, without intent to fire it (but placing B in imminent fear of unlawful violence)
• During an argument in a bar, C pulls a knife on D and threatens to “cut him up” – but does not take any further steps towards doing so
• During a dispute over F’s dog eating one of his plants, E chases F off his property with a baseball bat while swinging it wildly near his head

Examples of aggravated assault with intent to commit a separate felony (Fla. Stat. 784.021(1)(b)) in Florida include any of the following:

• A corners B in an alley and threatens to “rape” her, but C sees this and chases A away (aggravated assault with intent to commit sexual battery)
• E runs up to F with a knife and tells F to give up his wallet, but the police intervene and arrest F before the robbery occurs (aggravated assault with intent to commit robbery)
• G pulls up in his van next to H, a child, and threatens to kill H if he does not get inside (aggravated assault with intent to commit kidnapping)

For purposes of aggravated assault with a deadly weapon, a “deadly weapon” is defined as either of the following:

• Any instrument likely to cause death or great bodily harm when used in the “ordinary contemplation of its design” (e.g. firearms, knives)
• Any instrument or object that is used or threatened to be used in a manner likely to cause death or great bodily harm to the victim(s) (can include objects like cars, BB guns, bats, chairs, etc.)(Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020))

A critical element of aggravated assault (either with a deadly weapon or to commit a separate felony) is establishing “well-founded fear.” However, there is an active debate among Florida courts as to what satisfying this element of the offense(s) actually requires.

Decades ago, Florida courts typically required evidence that the alleged victim of an aggravated assault was put in actual fear of imminent and unlawful violence. But more recently, this “rule” began to evolve quite significantly. 

In 1977, the Florida Supreme Court decided Gilbert v. State, 344 So.2d 564 (Fla. 1977), in which the Court held that a victim does not need to testify as to their subjective fear that violence was about to occur for someone to be guilty of assault or aggravated assault. 

This constituted a major development in Florida case law on this issue – as previously, an act was not considered aggravated assault simply because of the “nature of the act.” The State had to prove the victim was personally in fear – usually through testimony of the victim or witnesses to the event.

Post-Gilbert, Florida’s courts have shown an increased willingness to find “well-founded fear” in the absence of the victim testifying. In L.R.W. v. State, 848 So.2d 1263 (Fla. 5th DCA 2003), for example, the 5th DCA used the reactions of witnesses to a fight to “infer” that the alleged victim of the aggravated assault was put in fear – even when she was supposedly “laughing.”

In the years after L.R.W., courts began to adopt a “reasonable person” standard when evaluating well-founded fear. Perhaps the most prominent example of this was Sullivan v. State, 898 So.2d 105 (Fla. 2d DCA 2005).

Though the Sullivan court reversed Sullivan’s aggravated assault conviction because he was too far away from his “target” to pose an imminent threat, the 2nd DCA (Tampa’s highest court) held that if a “reasonable person” would have thought violence was imminent, “well-founded fear” is satisfied for purposes of proving aggravated assault.

This ruling effectively abolished any “subjective” component of the “well-founded fear” element in aggravated assault cases, as many courts (including Florida’s 1st District Court of Appeal in Daniels) have shown a willingness to find “well-founded fear,” so long as a reasonable person in the alleged victim’s position would have feared imminent and unlawful violence.

But does this new “rule” even apply when the alleged victim testifies that they were affirmatively NOT in fear of imminent and unlawful violence? The answer is yes – the defendant may still be found guilty of aggravated assault so long as an objectively reasonable person would have been placed in fear by the act(s) of the defendant.

In a case affirming a juvenile’s adjudication of delinquency for aggravated assault with a deadly weapon, 2nd DCA Judge Darryl Casanueva authored a “concurring opinion” in name only, that was more like a dissent in its content. Judge Casanueva criticized the increased willingness of Florida courts to find aggravated assault even in cases where the “victim” was not in fear.

Let’s take a look at Judge Casanueva’s opinion in S.R.M. v. State, 66 So.3d 317 (Fla. 2d DCA 2011) – and what it means for defendants charged with assault and aggravated assault in Florida.

KEY CASE: S.R.M. v. State, 66 So.3d 317 (Fla. 2d DCA 2011)

In S.R.M., the defendant (S.R.M.) was a juvenile who was adjudicated delinquent (guilty) of aggravated assault with a deadly weapon. S.R.W. allegedly wielded a tire iron during a “road rage” incident. The victim of the offense (Wright) testified at trial that he was not put in fear and did not feel threatened by the tire iron:

“Q. But your testimony is that you didn’t think he was going to swing it at anyone, correct? A. No, at me, I said he wasn’t going to swing it at. Q. And you didn’t see him swing at anyone, correct? A. No, he sure didn’t. Q. Okay. And you said you didn’t feel threatened at all. A. I wasn’t in front of him when he was standing there with it, no.”

Despite direct testimony from the victim in S.R.W.’s case that he was not in fear of imminent and unlawful violence, S.R.W. was adjudicated delinquent of the charge, and this was affirmed by the 2nd DCA without comment.

Though the majority did not elaborate upon their decision to affirm S.R.W.’s conviction, Judge Casanueva wrote that because he was bound by Sullivan v. State, 898 So.2d 105 (Fla. 2d DCA 2005), he had no choice but to affirm. 

However, Judge Casanueva expressed that he felt very negatively about the “reasonable person” standard increasingly being employed in Florida courts. Noting first that S.P.M. was adjudicated delinquent despite evidence on the record that the victim was not personally in fear, Casanueva wrote:

“Count four of the petition of delinquency charged that S.P.M.’s actions “did create a well-founded fear in [Mr. Wright] that such violence was imminent and in the commission of said assault [S.P.M.] did use a deadly weapon, to wit: a tire iron.” But Mr. Wright testified that he was not in fear and the State presented no other evidence to the contrary. Looking only to the plain meaning of the statute, the State failed to provide a prima facie case of assault because there was no evidence that the victim had any well-founded fear.”

In essence, Judge Casanueva observed that the State accused S.P.M. of putting “well-founded fear” of imminent and unlawful violence in Wright – only for Wright to testify that no such fear existed. The fact that S.P.M. was nevertheless adjudicated delinquent was troubling to Judge Casanueva.

Arguing that Florida courts have taken the “reasonable person standard” established in Gilbert too far, Judge Casanueva wrote:

“Case law has instituted the use of a reasonable person standard to satisfy the element of a well-founded fear when the victim does not testify regarding his or her subjective state of mind. Gilbert v. State, 344 So.2d 564 (Fla.1977) (Gilbert I ), appears to be the progenitor of this practice. In less than 250 words, the supreme court did no more than quash a Third District decision because the district court had utilized cases which held that a well-founded fear of violence or imminent peril was not an element of aggravated assault. …”

“Evolution of case law has allowed replacement of the statute’s subjective standard of fear with a reasonable person standard when the victim does not testify regarding that element. While these prior opinions have found it appropriate to relax the statute’s clear, subjective standard, none of the cases present a situation where the victim testified regarding the element at issue. In our case, Mr. Wright took the stand and affirmatively stated that he did not feel threatened. Application of the reasonable person standard is unnecessary because Mr. Wright provided competent, substantial evidence of his subjective emotional state at the time of the offense, which is what the statute’s language requires. I believe this case law does not change the result mandated by the plain language of the statute. The State affirmatively disproved its own case through Mr. Wright’s testimony.”

Judge Casanueva argued it was illogical for courts now to claim aggravated assault can occur even when the victim testifies and says they were not in fear, when Gilbert’s holding was only that well-founded fear can be inferred in the absence of the alleged victim’s testimony if fear would have been “reasonable.”

Criticizing Sullivan v. State, 898 So.2d 105 (Fla. 2d DCA 2005)’s wholesale abandonment of the “subjective component” of the well-founded fear prong of assault/aggravated assault in Florida, Judge Casanueva wrote:

“The fact that this court is bound by its prior decision in Sullivan is the only reason I concur with my fellow judges. Before Sullivan, the reasonable person standard from Gilbert II and its progeny had only been used when there was no direct evidence of the victim’s fear or lack thereof. By utilizing a reasonable person standard in a case where the victim testified that he was not afraid and there was no evidence to the contrary, the Sullivan court essentially eliminated the subjective standard that the statute requires. I respectfully disagree with this court’s holding in Sullivan that the reasonable person standard should be applied even in the face of direct, uncontroverted evidence from the victim regarding his subjective state of mind. However, because I am bound by that precedent, I concur in result only.”

Put simply, Judge Casanueva was bound by Sullivan (because it was a prior holding of his own court), so he could not say his colleagues were wrong to affirm S.R.W.’s conviction. However, Judge Casanueva made clear his belief that someone is not guilty of assault or aggravated assault if the alleged victim specifically testifies that they were not put in fear.

But despite this seemingly intuitive conclusion drawn by Judge Casanueva, Florida’s courts have not shown a willingness to return to a pre-Sullivan perspective on “well-founded fear.” Because of this, S.R.W. and its progeny remain good law across the state of Florida. 

In sum, S.R.M. v. State, 66 So.3d 317 (Fla. 2d DCA 2011) reemphasizes the fact that in Florida, a victim does not have to say they were put in fear by a defendant for the defendant to be found guilty of assault or aggravated assault.

However, S.R.M. v. State, 66 So.3d 317 (Fla. 2d DCA 2011) also found that the alleged victim’s testimony that he was not in fear still did not defeat the aggravated assault charge against S.R.W. That finding was criticized by Judge Casanueva – who argued in his “concurrence” that courts have now taken Gilbert’s “reasonable person” standard too far.

This means that in a Florida aggravated assault case, the mindset of the alleged victim at the time is effectively irrelevant to the charge. So long as the State convinced the jury that someone in the victim’s position would have developed a “well-founded fear” of imminent, unlawful violence, the defendant can be guilty – even if the alleged victim says they were not in fear.

Florida’s criminal defense community should note Judge Casanueva’s S.R.W. concurrence, as it provides powerful legal analysis of the shifting legal standard applied by courts in assault and aggravated assault cases.

Aggravated assault 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 criminal 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.

  Social Share