Major FL Court Discusses When Self-Defense Instruction Can Be Given in Aggravated Assault Case

February 9, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 4th District Court of Appeal ruled that the jury in an aggravated assault case should have received an instruction on non-deadly force, as there was some evidence in the record that supported the defendant’s claim that he felt threatened when he flashed a gun at a process server.

In Florida, aggravated assault (Fla. Stat. 784.021(1)(a) and (1)(b)) is a serious felony offense. Aggravated assault is typically considered a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine. However, it can occasionally be considered a second-degree felony (e.g. on a police officer), punishable by up to 15 years in prison. For more, click here.

There are two types of aggravated assault in Florida – aggravated assault with a deadly weapon without intent to kill, and aggravated assault with intent to commit a separate felony. To learn the difference, click here.

For someone guilty of aggravated assault with a deadly weapon (Fla. Stat. 784.021(1)(a)), 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 used in the course of making the threat (e.g. brandished, pointed, swung)

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

• During a “road rage” incident, A gets out of the car and waves his gun outside B’s window in an effort to scare him – but does not shoot him or attempt to do so
• C rushes at D with a knife as D is walking on the sidewalk in an effort to “freak him out,” but C does not stab D or otherwise touch him
• E raises a chair above his head during a heated argument with F and swings it as if he is going to hit F over the head with it, but does not do so (L.R.W. v. State, 848 So.2d 1263 (Fla. 5th DCA 2003))

While many in Florida believe a deadly weapon is only a firearm or knife, this is not the case. A deadly weapon in Florida is considered either of the following (Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020)):

• Any instrument for which causing serious bodily harm or death is “within the ordinary contemplation of its design” (e.g. guns, knives)
• Any instrument that is used or threatened to be used in a manner likely to cause death or serious bodily injury (can include BB guns, spearguns, sticks, beer bottles, rocks, chairs, bats, cars and trucks, etc.)

For someone to be guilty of aggravated assault with intent to commit a separate felony, 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
• The defendant intended to commit a separate felony at the time the assault occurred (e.g. used the assault as part of the attempt to carry out the separate felony)

Examples of aggravated assault with intent to commit a separate felony (Fla. Stat. 784.021(1)(b)) may include:

• 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)

Sometimes, a person in Florida will display a firearm (or other deadly weapon), fearing that they will be injured or killed if they do not do so. In some cases, that person will still be charged with aggravated assault – as the State will argue that their actions were not legally justified.

If a firearm is produced as part of an alleged aggravated assault (regardless of whether the gun is pointed), a common legal issue is whether the trial judge should give the jury a deadly force self-defense instruction, a non-deadly force self-defense instruction, or no instruction at all.

This decision can dictate the outcome of a case. If a jury is instructed as to self-defense, they will be more likely to seriously evaluate and determine whether the defendant was acting lawfully in self-defense (or defense of others) when they committed the alleged “aggravated assault.”

If there is no instruction, a defendant is still permitted to argue that they defended themselves by displaying a deadly weapon. But the jury will not have a “guide” that can be used to evaluate the legal legitimacy of that claim – making it more likely for the defendant to be found guilty. This raises two questions:

• When is a self-defense/defense of others (e.g. Stand Your Ground) instruction required in a Florida aggravated assault case?
• Does showing a firearm (but not firing it) during an alleged aggravated assault constitute deadly force or non-deadly force?

Both of these were squarely addressed in a major case decided by Florida’s 4th District Court of Appeal (Southeast Florida) – Cunningham v. State, 159 So.3d 275 (Fla. 4th DCA 2015). Let’s take a look at Cunningham and what it means for those charged with aggravated assault with a firearm in Florida.

KEY CASE: Cunningham v. State, 159 So.3d 275 (Fla. 4th DCA 2015)

In Cunningham, the defendant (Cunningham) was served with documents by a process server at his home shortly after sunset. An argument took place between the two parties, and the process server eventually left.

Shortly after the verbal altercation ended, the process server returned to Cunningham’s property. This resulted in the argument escalating – with Cunningham demanding the process server leave his property. At some point, Cunningham produced a firearm and pointed it at the process server while making threatening statements. The firearm was never discharged.

Cunningham was charged with aggravated assault with a firearm. At trial, Cunningam requested that the jury receive the following instruction on self-defense through use of non-deadly force:

“An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of nondeadly force. “Non-deadly” force means force not likely to cause death or great bodily harm. (Defendant) would be justified in using non-deadly force against (victim) if the following two facts are proved: 1. (Defendant) must have reasonably believed that such conduct was necessary to defend [himself] … [another] against (victim’s) imminent use of unlawful force against the [defendant] [another person]. 2. The use of unlawful force by (victim) must have appeared to (defendant) to be ready to take place.”

The trial judge denied Cunningham’s motion for the non-deadly force instruction – as the judge concluded the brandishing of the firearm constituted deadly force (despite the fact that the gun was not fired).

As a result, the jury was instructed on justifiable use of deadly force – which requires imminent belief of death or great bodily harm (higher bar than the use of non-deadly force, which only requires fear of “unlawful force”).

The jury found Cunningham did not have this at the time he brandished the firearm – and he was convicted and sentenced to prison. On appeal to the 4th DCA, Cunningham argued that the jury should have been instructed on justifiable use of non-deadly force. 

The 4th DCA agreed, reversing Cunningham’s conviction and remanding the matter for a new trial. The 4th DCA found that simply pointing a firearm (not firing it) constitutes non-deadly force, writing:

“It is now well established by this court that the discharge of a firearm constitutes deadly force as a matter of law. Hosnedl v. State, 126 So.3d 400, 404 (Fla. 4th DCA 2013) (citations omitted). Likewise, we also have established that the mere display of a gun is not deadly force as a matter of law. See Carter v. State, 115 So.3d 1031, 1037 n. 3 (Fla. 4th DCA 2013) (“Apparently the firearm was not discharged and deadly force did not apply as a matter of law.”); Howard v. State, 698 So.2d 923, 925 (Fla. 4th DCA 1997) (“[E]ven the display of a deadly weapon, without more, is not ‘deadly force.’ ”).”

“Because there was conflicting evidence as to whether the process server behaved in a threatening manner and the firearm was used in a non-deadly way, the court erred in not giving the justifiable use of non-deadly force instruction. We cannot say that the error was harmless. Non-deadly force, as opposed to deadly force, is justified if a defendant reasonably believes such force is necessary to defend himself or another from the use of unlawful force. Fla. Std. Jury Instr. (Crim.) 3.6(g). Deadly force, on the other hand, is justified only when the defendant reasonably believes its use is necessary to prevent imminent death, great bodily harm, or the commission of a forcible felony. See Fla. Std. Jury Instr. (Crim.) 3.6(f). In light of the evidence introduced in this trial, even if  the jury felt the use of deadly force was not justified under the circumstances, it may have come to a different result had it been presented with the option of deeming the defendant’s actions as justifiable non-deadly force.”

Put simply, the 4th DCA found that there was at least some evidence Cunningham reasonably thought unlawful force was being threatened by the process server. Because Cunningham only used non-deadly force in response, he was entitled to the justifiable use of non-deadly force instruction that the judge denied. This required reversal of his aggravated assault conviction.

In sum, Cunningham v. State, 159 So.3d 275 (Fla. 4th DCA 2015) marks a major development in Florida’s corpus of case law on aggravated assault with a firearm – and when jury instructions on use of force (including non-deadly force) are required in aggravated assault cases. The 4th DCA held:

• Cunningham’s pointing of the gun at the process server did not constitute a use of deadly force, as he did not fire it
• The trial judge erred by classifying the pointing/brandishing of a firearm as deadly force rather than non-deadly force 
• There was at least some evidence in the record indicating Cunningham feared unlawful force at the hands of the process server at the time he pulled out his gun
• This meant that as a matter of law, Cunningham was entitled to have the jury instructed on justifiable use of non-deadly force (e.g. under Stand Your Ground)
• Because the judge failed to give this instruction, this was reversible error as a matter of law (requiring reversal of Cunningham’s conviction/a new trial)

Florida’s criminal defense community should take note of Cunningham v. State, 159 So.3d 275 (Fla. 4th DCA 2015), as it provides a comprehensive breakdown of when (and why) justifiable use of non-deadly force jury instructions are required in Florida aggravated assault with a deadly weapon 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.

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