Florida’s 1st DCA Finds Shooting Threat Was NOT Aggravated Assault – Here’s Why

April 23, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 1st District Court of Appeal ruled that a defendant’s threat to get his gun and shoot a law enforcement officer was not aggravated assault as a matter of law.

CASE: White v. State, 633 So.2d 472 (Fla. 1st DCA 1994)

Charge(s): Battery on a Law Enforcement Officer, Resisting With Violence

Outcome: Convictions REVERSED – White was only found guilty because the jury erroneously concluded he committed an aggravated assault against a police officer (thereby “provoking” the officer to use the force White resisted).

Aggravated Assault with a Deadly Weapon in Florida

In Florida, aggravated assault with a deadly weapon (Fla. Stat. 784.021(1)(a)) is a very serious felony. It is typically considered a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine. But under certain circumstances, aggravated assault is a second-degree felony (up to 15 years in prison and a $10,000 fine). For more, click here.

For someone to be guilty of aggravated assault with a deadly weapon, 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
• A deadly weapon was used in the course of making the threat (e.g. brandished, pointed, swung)

Note: The crime of aggravated assault with a deadly weapon is only committed WITHOUT the intent to kill. If someone commits aggravated assault with a deadly weapon WITH the intent to kill a victim, they are likely to be charged with a more SERIOUS OFFENSE, such as attempted first-degree murder or attempted felony murder. For more on this, click here.

Examples of aggravated assault with a deadly weapon without intent to kill in Florida include the following:

• A rushes up to B with a knife and makes a stabbing motion to deliberately place B in fear for his life (but does not attempt to actually kill B)
• During a road rage incident, C gets out of his vehicle, rushes up to D’s vehicle, and points a gun at D without the intent to actually shoot him
• E rushes at F on the street with a baseball bat and begins swinging wildly at F, completely unprovoked, while yelling he wants to “bash F’s brains in”

There are a few key elements of aggravated assault that are often disputed when the State brings a case against the defendant. The first is whether a deadly weapon was used. Critically, a gun is a deadly weapon as a matter of law. For more on that, click here.

However, the designation of a “deadly weapon” is not limited to firearms and blades. A deadly weapon in Florida is any instrument/object that is covered by either of the following definitions: 

• The object/instrument causing death or great bodily harm is “within the contemplation of its ordinary design” (e.g. firearms, knives, machetes)
• The object/instrument was used or threatened to be used in a manner that was likely to cause death or great bodily harm (Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020))

Examples of deadly weapons include broken beer bottles, BB guns, spear guns, vehicles (e.g. cars and trucks), rocks and sticks (depending on the circumstances), chairs, and more. L.R.W. v. State, 848 So.2d 1263 (Fla. 5th DCA 2003). For more, click here.

Another frequently disputed element is “well-founded fear” (or the lack thereof). It is important to note that for a person to be guilty of aggravated assault, the victim himself DOES NOT have to personally testify that they were in fear. J.P. v. State, 128 So.3d 61 (Fla. 3d DCA 2013). 

The State must only prove that a REASONABLE person in the alleged victim’s position would have developed a well-founded fear of imminent, unlawful violence due to the defendant’s act(s). For more, click here.

The final element commonly disputed in an aggravated assault prosecution is the APPARENT ABILITY of the accused to carry out the alleged threat. Florida’s courts are clear – conditional threats or threats that cannot be readily acted upon at the time they are made are NOT aggravated assault. L.C. v. State, 799 So.2d 330 (Fla. 5th DCA 2001)

For example, in L.C. v. State, 799 So.2d 330 (Fla. 5th DCA 2001), a juvenile defendant waved a gin bottle outside the victim’s home and threatened to “beat her ass.” 

The 5th DCA found L.C. was NOT guilty of aggravated assault with a deadly weapon because L.C. did not have the “apparent ability” to carry out the threat at the time it was made. She was outside the victim’s locked home, and the victim never went outside to meet her.

This principle was reinforced by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court) in a major aggravated assault case. There, the defendant was not charged with aggravated assault – but with battery on a law enforcement officer and resisting with violence.

According to the 1st DCA, the defendant in that case was arguing with law enforcement officers, and threatened to go into his home and “fix” the officer by getting a gun and shooting him. The defendant then began walking towards his home.

Based on allegedly witnessing a felony aggravated assault against a law enforcement officer (e.g. himself), the officer attempted to detain the defendant. This led to a physical altercation when the defendant turned around and punched the officer in the face when he tried to stop the defendant from entering his residence.

Eventually, the defendant was subdued – and arrested. The State’s theory was that the defendant committed an aggravated assault by threatening the officer – so was not entitled to an instruction on the defensive use of non-deadly force to prevent an unlawful arrest.

The defense countered by urging that the jury instruction for a lawful use of non-deadly force be given (permitting the jury to find the defendant’s non-deadly force permissible to resist an illegal arrest). 

The judge did so, but added a provision stating that if the jury found the defendant committed an aggravated assault, he was GUILTY of the offenses (as he didn’t have the right to use non-deadly force to defend himself against what would have been a lawful arrest). This led to the defendant being convicted on both counts.

On appeal to the 1st DCA, the defendant the trial judge erred as a matter of law by adding to the jury instructions that he may have committed an aggravated assault against the officer when there was no evidence in the record to support this assertion.

The defendant argued that he had no apparent ability to carry out the shooting threat when it was made, so there was no basis for the judge’s addition to the standard instruction. The defendant asserted that because this decision may have led to his convictions, REVERSAL and a new trial was required.

The 1st DCA AGREED, finding that the defendant did NOT commit an aggravated assault – and thus, there was no basis to lawfully detain him. But why did the 1st DCA conclude this?

Let’s take a look at the case – White v. State, 633 So.2d 472 (Fla. 1st DCA 1994) – and discuss what it means for those in Florida charged with aggravated assault.

KEY CASE: White v. State, 633 So.2d 472 (Fla. 1st DCA 1994)

In White, the defendant (White) was charged with and convicted of battery on a law enforcement officer and resisting with violence. At trial, the following was revealed:

• The defendant exited his home and verbally confronted officers while they conducted a traffic stop nearby, as he was annoyed by their lights
• At one point, White allegedly threatened to retrieve a gun inside his home and shoot one of the officers
• White turned towards his house and began walking towards it, but an officer rushed (the one who was allegedly threatened) rushed over to detain him
•  The officer grabbed White’s door to obstruct him from entering, leading to a fight
• White punched the officer in the face, as well as additional officers and (accidentally) one or more family members who were attempting to break up the scuffle
• The State’s theory of the case was that White’s acts were unlawful because he did NOT have the right to use nondeadly force in response to a LAWFUL ARREST for aggravated assault
• The defense disputed this, arguing that even if the threat was made, it was not aggravated assault as a matter of law (and thus, there was no legal basis to detain White)
• The defense argued White had no APPARENT ABILITY to carry out the shooting threat
• At the conclusion of trial, the judge gave an instruction on the justified use of nondeadly force to resist an unlawful arrest
• However, the trial judge ADDED a provision stating that if the jury found the defendant committed an aggravated assault, his force was not justified
• The defense objected, arguing there was no evidence provided by the State of a critical element of aggravated assault (APPARENT ABILITY to carry out the threat)
• However, the trial judge overruled the objection – and the instruction was given with the aggravated assault addendum
• White was convicted on all charges

On appeal to the 1st DCA, White argued the judge’s decision to give the modified instruction was erroneous as a matter of law because there was NO evidence to support the claim that he was guilty of aggravated assault. 

White argued that even if the State’s case was taken at face value, he had no apparent ability to carry out the threat against the officer. Thus, his detention was unlawful – entitling him to USE NONDEADLY FORCE to resist it (since there was no other alleged crime White committed).

The 1st DCA AGREED with White and REVERSED his convictions. Agreeing that he did not commit aggravated assault as a matter of law because he had no apparent ability to carry out the alleged shooting threat, the 1st DCA wrote:

“As Appellant points out, the offense of assault as defined in section 784.011(1), Florida Statutes (1991), involves an unlawful threat coupled with the apparent ability to carry out that threat. The major premise of Appellant’s argument is that he was not armed when he threatened Robbins with getting his gun, and the threat to do violence was not coupled with an apparent ability to carry out the act. Appellant relies primarily on the supreme court’s decision in McCormick v. State, 153 Fla. 838, 16 So.2d 49 (1944), wherein the court ruled that the evidence was insufficient to sustain the conviction for aggravated assault when it revealed that the defendant was not armed when he made the threat, even though his shotgun was only a few feet away. Likewise, in the instant case, although the evidence certainly established a threat, it failed to show that the threat was coupled with the ability to carry out the threat through the use of a firearm.”

“We agree with Appellant that the activities in front of Appellant’s house did not constitute aggravated assault, and thus the court’s instructions on use of force in self-defense and the lawful use of force by police officers in arresting fleeing felons were in error. Further, this error was exacerbated by the trial court’s failure to define the elements of aggravated assault for the jury. The fact that the jury was also instructed that the use of non-deadly force was not justifiable if Appellant was found to have been the aggressor does not render this error harmless in light of the prosecutor’s emphasis in his closing arguments on the effect of the aggravated assault and in light of the trial court’s failure to define for the jury the elements of aggravated assault. For the foregoing reasons, this cause is reversed and remanded for a new trial.”

Put simply, because White was not armed and there was no evidence he had a gun, he DID NOT commit aggravated assault even if he made the alleged comment. This is because White had no apparent ability to carry out the alleged threat at the time it was made.

In sum, White v. State, 633 So.2d 472 (Fla. 1st DCA 1994) marks a significant development in Florida’s corpus of case law surrounding aggravated assault. The 1st DCA (North FL’s highest court) held that:

• There was no evidence White committed an aggravated assault against the officer, which prompted him to attempt to detain White
• This is because White had no apparent ability to carry out the threat he made (assuming it was made at all)
• As a result, the standard justifiable use of nondeadly force instruction should have been given – WITHOUT the option for the jury to find White committed aggravated assault
• Because the trial judge’s decision to give the modified instruction may have resulted in White’s convictions, those convictions required REVERSAL

Florida’s criminal defense community should take note of White v. State, 633 So.2d 472 (Fla. 1st DCA 1994), as it is a defense-friendly case on aggravated assault in Tallahassee and North Florida.

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