North FL’s Highest Court Discusses Evolution of Aggravated Assault Law

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

Case Summary

Florida’s 1st District Court of Appeal affirmed a defendant’s aggravated assault conviction after finding a “reasonable person” in the victim’s position would have been in well-founded fear of violence. One judge voiced disagreement with the judicial trend that shaped the ruling.

CASE: Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020)

Charge(s): Aggravated Assault with a Deadly Weapon

Outcome: Defendant’s conviction affirmed, despite the fact that the victim testified she was not put in fear of violence.

Aggravated Assault Charges in Florida

In Florida, aggravated assault with a deadly weapon without intent to kill and aggravated assault with intent to commit a separate felony (Fla. Stat. 784.021(1)(a) and (1)(b)) are serious offenses. Both are typically third-degree felonies (up to 5 years in prison and a $5,000 fine), enhanceable to a second-degree felony (up to 15 years in prison) in some cases. For more, click here.

For someone to be guilty of aggravated assault with a deadly weapon in Florida, 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: To learn more about what constitutes a deadly weapon under Florida’s aggravated assault law, click here.

For someone to be guilty of aggravated assault with intent to commit a separate felony, the State must prove the first three elements – but rather than establishing that a deadly weapon was used, the State must show (beyond a reasonable doubt) that the defendant committed the assault with the intent to commit a separate felony. Kelly v. State, 266 So.3d 872 (Fla. 5th DCA 2019)

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

• A gets out of his car, angry at B for cutting him off in traffic, and brandishes his pistol near B in a threatening manner (without actually intending to shoot him)
• C rushes at D with a knife on the side of the road in an effort to “scare” him – D is placed in reasonable fear he is about to be killed or seriously harmed as a result
• E takes a baseball bat and begins swinging it wildly at F during an argument, causing F to flee 

Note: If someone commits an aggravated assault with intent to kill, this is likely to be charged as a more serious felony, such as attempted manslaughter by act, attempted second-degree murder, or even attempted first-degree murder (depending on the circumstances). For more, click here.

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

• A tells B he will kill her if she tries to flee after cornering her in an alley with the intent to “rape” her – but A is chased away by C before he can complete the crime (aggravated assault with intent to commit sexual battery)
• D rushes up to E on the sidewalk and threatens to kill him (without displaying a weapon) if E does not give up his wallet – police show up before E can hand it over (aggravated assault with intent to commit robbery)
• F drives his car up to G, a child, while G is walking home from school – and threatens to kill G unless he gets in F’s trunk (aggravated assault with intent to commit kidnapping)

You may notice that both aggravated assault charges require that the defendant’s actions have been sufficient to create a “well-founded fear” in one or more victims. But does the State have to prove that the alleged victim of an aggravated assault was personally in fear for someone to be convicted?

The answer to this question – which is surprising to most – is no. In an aggravated assault case in Florida, the State must only prove that a reasonable person in the alleged victim’s position would have been in fear. This is the case even if the victim testifies that they were not personally in fear of imminent, unlawful violence. S.R.M. v. State, 66 So.3d 317 (Fla. 2d DCA 2011)

This trend began in 1977, when the Florida Supreme Court decided in Gilbert v. State, 344 So.2d 564 (Fla. 1977) that a victim does not need to testify as to their “well-founded fear” of imminent and unlawful violence for a defendant to be convicted. In subsequent decades, this rule has been expanded to render a defendant’s subjective perceptions mostly irrelevant.

A recent case decided by Florida’s 1st District Court of Appeal (Tallahassee and North Florida’s highest court) only reinforces this trend. In Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020), the 1st DCA majority affirmed Daniels’s aggravated assault conviction despite the fact that the victim testified she was not in fear.

But one 1st DCA judge, even though he “concurred” in the result (due to the fact that he was bound by prior case), disagreed with the majority’s logic. Let’s examine Daniels and what it means for defendants charged with assault and aggravated assault in Florida.

KEY CASE: Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020)

In Daniels, the defendant (Daniels) was accused of aggravated assault with a firearm. He was convicted, despite the fact that the alleged victim did not even see Daniels with a gun. The 1st DCA summarized the factual background of the case as follows:

“In between arguments, threats, and punches, Mario Daniels and his then-girlfriend, the victim, decided to break up. Daniels packed up his belongings from the victim’s house and drove, with the victim in the passenger’s seat and her children in the back, to another woman’s house. During the drive, Daniels threatened to shoot and kill the victim multiple times and, as the car stopped, he took out a pistol and fired it several times through a window. The victim, again in a relationship with Daniels at the time of trial, denied that Daniels had hit her and stated that she did not remember whether he shot a gun while next to her in the car. The victim acknowledged previously telling police that Daniels had shot the gun out of the car, but testified that she did not see him with a gun, no gun was pointed at her, and she was never in fear from having a gun pointed at her. The jury found that Daniels did in fact commit an aggravated assault against the victim and fired a gun.”

As you can see from their characterization of the victim’s testimony, the 1st DCA was doubtful that the alleged victim (who remained Daniels’s girlfriend) did not see Daniels with a firearm. The jury shared that skepticism, as they convicted Daniels in spite of the alleged victim’s claim that she was not placed in “well-founded fear” of violence.

Daniels appealed his conviction to Florida’s 1st DCA, arguing the victim’s testimony defeated the aggravated assault with a firearm charge as a matter of law. However, the 1st DCA did not agree – citing Florida’s case law that evaluating fear in aggravated assault cases requires the use of an “objective standard”:

“This Court and others have held that whether the victim actually testifies that he or she was in fear is not conclusive of the fear element, as long as “a reasonable person would experience a well-founded fear of imminent harm.” Tash v. Rogers, 246 So. 3d 1304, 1305 (Fla. 1st DCA 2018) (“Appellate courts apply an objective standard in determining whether a reasonable person would experience a well-founded fear of imminent harm.”). … This issue mostly arises when a victim either does not testify or does not specifically testify as to whether he or she was put in fear by the defendant’s threat, but the fact finder can infer that the victim was fearful. In this situation, every district court has held that an objective standard applies, irrespective of the lack of the victim’s testimony.”

“This result logically follows from the use of an objective standard. A denial of fear is certainly a factor that may be weighed against other circumstances presented, but it is not conclusive. And in this case, there is evidence to support the conclusion that Daniels’ conduct was sufficient to create well-founded fear. As Daniels’ threats and actions could create a well-founded fear of imminent violence in a reasonable person, see Williams v. State, 238 So. 3d 915, 916-17 (Fla. 1st DCA 2018), we affirm his conviction for aggravated assault.”

In essence, because the alleged victim’s testimony was not dispositive on the issue of whether Daniels’s actions were sufficient to create well-founded fear in a reasonable person (“objective test”), the 1st DCA affirmed his conviction.

Judge Makar of the 1st DCA concurred with the result, but expressed his skepticism towards the trend in Florida law towards making a guilt determination in assault and aggravated assault cases totally independent of whether the alleged victim was personally in fear. He wrote:

“When a victim of an alleged assault testifies, a two-part inquiry applies: the evidence must show an actual, subjective fear on her part to satisfy the statute; but the evidence must also show that her fear was “well-founded” and objectively reasonable under the circumstances. See, e.g., L.R. v. State, 698 So. 2d 915, 916 (Fla. 4th DCA 1997) (“Where the victim testifies, the victim’s subjective perception of fear, so long as it is determined to be well-founded, is sufficient to prove the element of fear.”). Consistent with the assault statute’s language, a subjective, actual fear on the victim’s part must exist and it must be objectively “well-founded” to establish the element of victim fear.1 Both a subjective fear and an objective basis for that fear must be shown; it is misnomer to say otherwise.”

In essence, Judge Makar rejected the claim that Florida’s assault and aggravated assault statute has no “subjective component” (e.g. that the victim did not have to personally be in fear). This was a departure from the 1st DCA majority on this issue.

However, Judge Makar found that in Daniels’s case specifically, the jury permissibly concluded (in spite of the victim’s testimony) that Daniels was guilty – because the alleged victim’s claim she was not in fear was not credible. Judge Makar wrote:

“Society has an interest in ensuring that criminal conduct is punished and deterred even where a victim may want to refrain from participating as a witness, perhaps due to the status of the defendant (family/friend/etc.), fear of the defendant, and the like. Where a victim has a motive to disclaim or diminish her fear, perhaps to protect a defendant, it becomes justifiable to allow a jury to determine the truth, which may be that the victim’s testimony is unreasonable or unbelievable under the circumstances. Just as a jury may reject a victim’s testimony that she was fearful, finding it not well-founded under the circumstances, a jury may also reject a victim’s testimony that she wasn’t fearful, finding that a reasonable person would have had a well-founded fear under the circumstances. Affirmance is thereby warranted.”

Put simply, Judge Makar found that because the alleged victim remained in a relationship with Daniels, it was within the province of the jury to conclude that his girlfriend was concealing her fear to protect him (e.g. make sure he was acquitted). To Judge Makar, the jury finding that the victim was in fear at the time of the incident was the result of them disbelieving her testimony.

Because of this, Judge Makar concluded that Daniels’s case was distinguishable from others in which there was no evidence the defendant was actually in fear and they testified to the contrary (such as S.R.M. v. State, 66 So.3d 317 (Fla. 2d DCA 2011)). The remaining evidence in Daniels strongly supported the argument that he committed the offense (and placed the victim in fear).

In sum, Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020) marks a significant development in Florida case law on assault and aggravated assault. The 1st DCA majority found that:

• The victim’s testimony in Daniels’s case was not dispositive, as Florida has adopted an “objective standard” in aggravated assault cases 
• This meant that the question was whether a reasonable person would have been in fear, not if the victim was personally in fear
• Because the remaining evidence in the case supported the jury’s finding that Daniels’s actions would have placed a reasonable person in well-founded fear of imminent and unlawful violence, his conviction was affirmed

Judge Scott Makar of the 1st DCA authored an intriguing concurring opinion in the case, arguing that:

• Florida’s aggravated assault law has both a subjective and objective component (e.g. not just an “objective test”)
• Here, the evidence supported that Daniels took actions that would have put a reasonable victim in fear
• However, the testimony of the victim as to her lack of fear was inherently not credible because she was still in a relationship with Daniels
• Thus, the jury could properly infer that the victim was subjectively in fear based on the circumstances – requiring affirmance of Daniels’s conviction

Florida’s criminal defense community should take note of Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020), as it provides an intriguing intra-court discussion of Florida’s aggravated assault law.

 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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