Is Aggravated Assault a Felony in Florida? How to Beat or Reduce the Charges

August 28, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In Florida, aggravated assault is a very serious criminal offense. If someone is charged, one of the most common questions is whether aggravated assault (Fla. Stat. 784.021) is a felony or a misdemeanor. The answer is that aggravated assault charges are always a felony in Florida.

Aggravated assault can occur in one of two ways:

• Aggravated assault with a deadly weapon (any weapon or instrument used or threatened to be used in a manner likely to cause death or great bodily harm)
• Aggravated assault with the intent to commit a separate felony

Aggravated assault is a third-degree felony (punishable by up to 5 years in prison and a $5,000 fine). If done in furtherance of a riot or aggravated riot, or the victim is in a protected group under Florida law (such as police, firefighters, hospital workers, etc.), aggravated assault is a second-degree felony (punishable by up to 15 years in prison and a $10,000 fine).

It is important to note that simple assault is a lesser-included offense of aggravated assault in Florida. Simple assault (Fla. Stat. 784.011) is a second-degree misdemeanor punishable by up to 60 days in jail and a $500 fine. It is enhanceable to a first-degree misdemeanor (up to 1 year in jail and a $1,000 fine) if done during a riot or aggravated riot, or if the victim is in a protected group.

Given the less serious nature of a simple assault charge, it is critical to understand how this can be used to reduce or entirely defeat an aggravated assault charge, depending on the facts of a case. This blog will explain strategies to beat or reduce felony aggravated assault charges in Florida.

For someone to be proven the offense of aggravated assault, the following elements must all be established by the State beyond a reasonable doubt:

• The defendant threatened, by word or by act, to do imminent and unlawful violence to the victim
• The defendant had the apparent ability to carry out that threat
• The threat was of such a nature that it would create a well-founded fear of imminent violence in a reasonable victim
• The defendant either used a deadly weapon or committed the aggravated assault with the intent to commit a separate felony

The “well-founded fear” element of aggravated assault does not require the actual victim to have been subjectively in fear of violence. If the actions are found to have been sufficient to put a reasonable person in well-founded fear of imminent violence, someone may be convicted regardless of whether the victim was actually in fear. Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020).

Note: A deadly weapon for aggravated assault purposes is any weapon used or threatened to be used during the crime in a manner likely to cause death or great bodily harm. This can include guns, knives, a broken beer bottle, a BB gun, a loaded speargun, rocks, canes, and even shoes (among others). Cloninger v. State, 846 So.2d 1192 (Fla 4th DCA 2003)

Examples of aggravated assault with a deadly weapon (third-degree felony) may include any of the following:

• G gets into an argument with H at a bar, breaks his beer bottle, then begins swinging it wildly near H’s head without the intent to actually hit him
• In a road rage incident, A pulls out his pistol and points it at B, telling him he will shoot if he doesn’t speed up
• During a heated argument at home, C pulls out a steak knife on D and lunges towards D with it to scare D

As these examples show, it is not required for someone to intend to harm the victim for them to be convicted of aggravated assault. Only the intentional threat of imminent, unlawful violence with a deadly weapon or with the intent to commit a separate felony is required.

Examples of aggravated assault with intent to commit a separate felony (third-degree felony) include:

• K follows M up into her yard and threatens to kill her if she does not let him take her purse (intent to commit robbery)
• A runs up to B and tells him he will “beat him senseless” if B does not let A steal B’s car (intent to commit grand theft)
• P follows N into an alley and says he will shoot N unless she has sex with him (intent to commit sexual battery)

Aggravated assault occurs in all of these cases even if the intended other felony is not actually committed. This is because the unlawful threat with the intent to commit the separate felony is the crime.

One of the most important things to understand about aggravated assault is how the fact that simple assault is a lesser-included offense can significantly decrease the culpability someone may face. This is especially the case if the “aggravated assault” did not involve a deadly weapon.

For misdemeanor assault (simple assault) to occur in Florida, all of the following must be true:

• The defendant made an unlawful threat of imminent violence against the victim
• The defendant had an apparent ability to carry out the threat
• The threat was of such a nature that the victim was placed in well-founded fear that violence was about to occur

Because assault is a second-degree misdemeanor, arguing that the alleged assault was only a simple assault (not an aggravated assault) can change the direction of the case. This may be a viable strategy if there is no doubt the event itself occurred, but there is doubt as to whether a deadly weapon was used or the defendant had the intent to commit a separate felony.

Examples of circumstances where arguing simple assault may be an effective strategy include:

• B and C are in an argument, and B begins yelling that he will kill C. B then picks up a chair as if to hurl it in C’s direction. C calls the police and B is charged with aggravated assault with a deadly weapon. (Chair was likely not a deadly weapon, per Cloninger)
• J goes to steal a chocolate bar from a store and confronts a store clerk, L, who is trying to stop him. J threatens to “beat up” L if he doesn’t let him take the bar and get out of his way. J is charged with aggravated assault with intent to commit a felony. (J did not intend to commit a separate felony, he intended to commit misdemeanor theft of the bar)

Arguing for simple assault (a less serious offense) may be a wise strategy in an aggravated assault case if:

• The defendant is alleged to have committed all the elements of simple assault (always true in an aggravated assault case), and
• There is at least some evidence introduced at trial establishing all the elements of assault (Johnson v. State, 293 So.3d 582 (Fla. 2020)).

If the above are true, a trial judge is required to instruct the jury on the lesser-included offense of assault. Thus, distinguishing the defendant’s conduct from aggravated assault by arguing simple assault may be the most effective way to fight an aggravated assault charge under those conditions. 

However, there are also many complete defenses to aggravated assault – which will result in someone being acquitted of both felony aggravated assault and misdemeanor simple assault if used successfully. These may include:

• Self-defense/defense of others: Florida law permits someone to use or threaten to use deadly force if it is a reasonable and proportional response to a threat of death or great bodily harm to themselves or others, in a place they had a lawful right to be.
• Alibi/mistaken identity: If the defendant was somewhere else or otherwise could not have committed the offense, this is a total defense to aggravated assault (GPS data, phone records, etc. may be used to establish this)
• False allegation: Someone fabricated the charge against the defendant (could be for personal motive such as child custody, revenge against an ex-partner, etc.)
• Lack of corroborating evidence
• Lack of intent to threaten the alleged victim (such as a gun slipping out of someone’s waistband accidentally or making a clear joke)
• No well-founded fear of imminent violence (e.g. threatening to drop a mountain on someone’s head)
• No apparent ability to carry out the threat (e.g. if the alleged victim is 1,000 miles away)
• Procedural challenges: May range from motioning to suppress someone’s post-Miranda statements, suppressing other evidence due to it being unconstitutionally obtained, etc.

In sum, aggravated assault is always charged as a felony in Florida. It is generally a third-degree felony punishable by up to 5 years in prison and a $5,000 fine. Under certain circumstances, it becomes a second-degree felony punishable by up to 15 years and a $10,000 fine. However, it is never a misdemeanor.

Depending on the facts of the case, someone may have either a partial or complete defense to aggravated assault. If there is no doubt an assault occurred but it did not involve a deadly weapon or the intent to commit a separate felony, arguing simple assault may be an effective way to defeat the felony charge (simple assault is a misdemeanor).

In other cases, a complete defense may be applicable. This may include self-defense or defense of others, alibi or mistaken identity, false allegations, lack of evidence, lack of intent to threaten, inability to carry out the threat, and more. 

If any of the complete defenses to aggravated assault are used successfully, someone can be totally acquitted of assault and aggravated assault. However, the questions of which defense(s) to rely upon and how successful these may be are heavily dependent on the facts of a given case.

Assault and aggravated assault 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.

  Social Share