Major Florida Court Clarifies “Using vs. Carrying” Deadly Weapon in Aggravated Assault Cases

October 9, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 2nd District Court of Appeal rules that simply “carrying” a deadly weapon is insufficient for someone to be found guilty of aggravated assault with that weapon.

In Florida, aggravated assault is a very serious felony offense. A common form of aggravated assault is aggravated assault with a firearm or deadly weapon, without intent to kill the victim. 

For someone to be proven guilty of aggravated assault with a deadly weapon without intent to kill, the following must be established beyond a reasonable doubt:

• The defendant intentionally made an unlawful threat of imminent violence, by word or act
• The threat was of such a nature to create a well-founded fear of violence in a reasonable victim
• The defendant had the apparent ability to carry out the threat
• In making the threat, the defendant used a firearm or other deadly weapon (e.g. a knife)

Aggravated assault with a deadly weapon but without intent to kill the victim is a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine. Examples may include:

• A points a gun at B during a road rage incident, yelling threats but not intending to kill B
• C rushes at D with a knife, scaring him but not intending to actually stab D
• E rushes towards F with a bat on the side of the street and begins swinging a bat wildly near his head

A deadly weapon is any instrument that is used or threatened to be used in a manner that is likely to cause death or great bodily harm to the victim. This can include guns, knives, bats, vehicles, and more. Cloninger v. State, 846 So.2d 1192 (Fla. 4th DCA 2003)

Critically, the deadly weapon must be used or threatened to be used in some way – rather than carried. In a recent case, Florida’s Second District Court of Appeal addressed this key legal issue.

Note: For more information on aggravated assault (Fla. Stat. 784.021) in Florida, click here. For more on what constitutes a deadly weapon for aggravated assault purposes in Florida, click here.

Major New Case: J.M. v. State, 399 So.3d 1286 (Fla. 2d. DCA 2025)

In J.M., a juvenile was adjudicated delinquent of aggravated assault with a deadly weapon after a confrontation with an alleged victim (Edwards) in a public park. Believing the bicycle Edwards possessed belonged to him, J.M. and another boy each pulled a knife out of their pocket and advanced towards Edwards.

When Edwards gestured as if to strike the boys, they ran away. Law enforcement arrived and ultimately took J.M. and his confederate (D.J.) into custody. Each was charged with attempted robbery with a weapon.

The court found that because the boys believed the bike belonged to them, attempted robbery could not be proven – as this requires intentional deprivation of property from someone lawfully entitled to it by an individual who does not have (or believe they have) any legal ownership claim to the property. For more on robbery and attempted robbery, click here.

However, the court found J.M. guilty of aggravated assault with a deadly weapon based on the testimony of an eyewitness. As aggravated assault with a deadly weapon is a lesser-included offense of attempted robbery with a deadly weapon, the court made this finding of guilt despite acquitting J.M. of the attempted robbery. For more on lesser-included offenses, click here.

J.M. appealed his conviction for aggravated assault with the knife on somewhat unusual grounds. J.M. observed that the information (charging document) in the case alleged he simply carried the knife during the assault, rather than using it to carry out the assault.

J.M. argued that this seemingly insignificant term made a huge legal difference – because aggravated assault with a deadly weapon required the use of the knife as part of the assault. Simply having the knife in hand (carrying) was insufficient if it was not specifically alleged to have been a component of the assault itself.

The 2nd District Court of Appeal ruled in J.M.’s favor, reversing his adjudication of delinquency (conviction as a minor) for aggravated assault. It agreed with J.M. that the information (charging document) simply alleged he carried the weapon as he committed the assault (initially charged as the attempted robbery), not that he used it.

Writing for the majority, Judge Villanti of the 2nd DCA said that J.M. merely having a knife in his possession was legally insufficient for a conviction. Judge Villanti noted:

“Here, the delinquency court found that the State had not proven the offense of aggravated assault with the intent to commit a felony—here, a robbery—because the unrebutted testimony established that J.M. and D.J. believed that the bicycle belonged to them. The only other basis of establishing aggravated assault was to find that J.M. assaulted Mr. Edwards using the knife he had pulled out of his pocket. But the delinquency petition did not charge J.M. with assaulting Mr. Edwards with the knife; it merely alleged that he had it in his possession.”

The 2nd DCA further reasoned that a finding of guilt for a lesser-included offense must be supported by the plain language of the charging document. Because the charging document only accused J.M. of “carrying” the knife during the incident, not “using” it to commit the crime, aggravated assault (which requires use of the weapon) could not be found to have occurred.

The 2nd DCA’s opinion was also rooted in precedent. Florida Supreme Court has confirmed the word “carry” cannot be substituted for “use” or a similar term in the charging document of an aggravated assault case. Owens v. State, 475 So. 2d 1238, 1239 (Fla. 1985). The 2nd DCA relied upon this to rule in J.M.’s favor.

Tossing out J.M.’s adjudication of delinquency (finding of guilt for a juvenile defendant), the 2nd DCA concluded:

“Based on the above, we reverse the disposition order and remand this case to the trial court for further proceedings. On remand, the delinquency court may consider whether the evidence was sufficient to find that J.M. committed an assault under section 784.011.”

The 2nd DCA did not permit the State to “update” the language of the information to allow a finding of guilt for aggravated assault. This is because J.M. was already adjudicated delinquent of aggravated assault. To retroactively “fix” the charging document to allow a second finding of delinquency for aggravated assault would have violated J.M’s double jeopardy rights.

However, the 2nd DCA did allow the judge to make a finding of simple assault upon remand. Assault requires an unlawful threat (by word or act) of violence and the apparent ability of the defendant to act upon the threat, sufficient to create a well-founded fear of violence in the victim. 

As this was arguably done here, J.M. could still be adjudicated delinquent of simple assault (a second-degree misdemeanor) but not aggravated assault with a deadly weapon (a third-degree felony). For more on the differences between assault and aggravated assault, click here.

Given this significant ruling by Florida’s 2nd District Court of Appeal, the State must be quite careful in how aggravated assault with a deadly weapon is alleged. If someone is accused of simply “carrying” rather than “using” a weapon, this is legally insufficient for an aggravated assault conviction (though simple assault can still be found). 

Aggravated assault can carry lengthy prison sentences and heavy financial penalties. If charged, it is crucial 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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