North FL’s Highest Court Discusses When Aggravated Assault With a Firearm Occurs In Major Case

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

Florida’s 1st District Court of Appeal ruled that a defendant’s statements to bystanders before he pulled a gun on a separate victim led to those bystanders developing a well-founded fear of violence when the defendant pulled out a gun – even though they were not his “targets.”

In Florida, aggravated assault is a serious criminal offense (Fla. Stat. 784.021(1)(a) and (1)(b)). It is considered a third-degree felony, punishable by up to 5 years in prison and a $10,000 fine, but in some circumstances, is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine. To learn more about enhanced sentencing for aggravated assault, click here.

There are two forms 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. It is critical to understand the difference if someone wishes to mount an effective defense against aggravated assault charges. 

For someone to be guilty of aggravated assault with a deadly weapon without intent to kill (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
• A deadly weapon was used in the course of making the threat (e.g. brandished, pointed, swung)

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.

Examples of conduct that would constitute aggravated assault with a deadly weapon without intent to kill in Florida include:

• 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 

Examples of conduct that would constitute aggravated assault with intent to commit a separate felony 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)

Note: Both of these offenses are third-degree felonies. Aggravated assault with a firearm had a mandatory minimum prison sentence of three years until 2016 (pursuant to Florida’s 10-20-Life law), but this statutory provision was repealed.

If someone is accused of aggravated assault with a firearm, this is an extremely serious charge. As there is no dispute that a firearm is a deadly weapon, the use of a firearm may make it more likely for the finder of fact (e.g. judge or jury) to find an aggravated assault occurred. However, the State must still prove that:

• The defendant deliberately used the firearm to effectuate the assault (e.g. the gun slipping out of the defendant’s pocket/an accident does not constitute aggravated assault)
• The defendant had the specific intent to place the victim(s) in fear of imminent, unlawful violence
• The defendant’s threat was of such a nature to create well-founded fear in the mind of a reasonable victim

Some of the most intriguing aggravated assault case law in Florida arises from circumstances in which the defendant produced a firearm in the presence of multiple people – while threatening violence to one or more of them. In such cases, someone may be charged with aggravated assault on everyone present, even if not every individual there was the “target” of the defendant.

Since aggravated assault in Florida requires specific intent to threaten a victim, an experienced and aggressive Florida criminal defense attorney may file a pretrial motion to dismiss or move for a judgment of acquittal (MJOA) at trial. 

If the State does not have evidence beyond a reasonable doubt that the alleged victim was not thought of by the defendant as the “target” of the alleged assault, this may lead to the dismissal of aggravated assault charges as a matter of law – or the reversal of one or more convictions on appeal. Denard v. State, 30 So.3d 595 (Fla. 5th DCA 2010) 

In one major case heard by Florida’s 1st DCA (Tallahassee and North Florida’s highest court), a defendant was convicted of four offenses – including two counts of aggravated assault with a deadly weapon (a firearm). At first glance, it did not appear that either of the alleged aggravated assault victims were deliberately threatened by the defendant.

However, the 1st DCA still affirmed the defendant’s aggravated assault convictions. Let’s take a look at Williams v. State, 238 So.3d 915 (Fla. 1st DCA 2018) and what it means for defendants charged with aggravated assault with a deadly weapon in Florida.

KEY CASE: Williams v. State, 238 So.3d 915 (Fla. 1st DCA 2018)

In Williams, the defendant (Williams) was charged with attempted second-degree murder, two counts of aggravated assault, and one count of possession of a firearm by a convicted felon. He was ultimately convicted.

At trial, it was revealed that Williams and the attempted second-degree murder victim (Elroy Howard) got into a “tense and profane” argument with Williams. Two of Williams’s friends, Fredrika Dixon and Gary Byrd, were standing nearby. 

According to testimony at trial, a furious Williams produced a semiautomatic rifle and pointed it at Howard, then fired in Howard’s direction (but did not hit him). Dixon and Byrd witnessed the shooting, as well as the argument that led up to it.

Dixon and Byrd were considered the victims of aggravated assault. At trial, Williams moved for a judgment of acquittal (MJOA) on the aggravated assault counts. Williams argued:

• The State provided no evidence he pointed the firearm at or in the direction of Dixon or Byrd
• Dixon and Byrd were not the “targets” of Williams’s threat (the target was Howard)
• Because of this, Williams did not commit aggravated assault upon Dixon or Byrd, so the aggravated assault charges should be dismissed as a matter of law

The trial judge denied Williams’s MJOA request – and he was convicted. On appeal to the 1st DCA, Williams reiterated his argument that he was not guilty as a matter of law of aggravated assault upon Dixon or Byrd. 

However, the 1st DCA disagreed and affirmed Williams’s aggravated assault convictions. The 1st DCA noted that even though Byrd and Dixon were Williams’s “friends” prior to the incident, he made multiple hostile remarks towards them before pulling his gun.

According to the 1st DCA, Williams’s comments before the shooting placed Byrd and Dixon in reasonable fear of imminent violence (e.g. made them believe they were potential “targets”). The 1st DCA first dispensed with the argument that Williams did not commit aggravated assault upon Byrd, writing:

“Williams said of Dixon and Byrd: “If those two motherfuckers want to stand right there I’ll kill your ass. I know them two bitches going to put me in prison.” … At some point, Byrd confronted Williams, trying to convince Williams to stop. Williams responded with a racial slur and a demand that Byrd “shut the hell up.” Byrd and Dixon both hid behind a vehicle until Williams rode away on his bicycle. From these facts, we have little trouble concluding that a reasonable jury could find Williams intentionally threatened Byrd. When Williams demanded that Byrd shut up, Williams was armed with a semiautomatic rifle, had just tried to kill someone, and had just screamed a racial slur at Byrd. A jury could infer from this that the demand to “shut the hell up” was more than an everyday request—that it was an intentional threat to harm Byrd if he continued talking.”

The 1st DCA characterized the conviction for aggravated assault upon Dixon as a “closer call,” but ruled there was sufficient evidence for the jury to conclude Williams intentionally threatened Dixon with harm (and used the firearm in the process):

“It is a closer call as to Dixon. Williams said if Dixon wanted to stand where she stood, “I’ll kill your ass,” presumably referring to Howard. He also said that she “might want to move out from around here”—or something like that. And he said he knew she would put him in prison. Although we cannot discern exactly what Williams hoped to communicate, a reasonable jury could conclude from these statements—and the surrounding circumstances—that Williams intentionally threatened Dixon with harm. Last, as to both Byrd and Dixon, a reasonable jury could find Williams had an apparent ability to do harm and that his firing the rifle and trying to kill someone would create a well-founded fear that violence was imminent. The trial court correctly denied the motion for judgment of acquittal.”

In essence, the 1st DCA concluded that when Williams told Dixon she “might want to move out from around here,” this created a well-founded fear of imminent and unlawful violence in Dixon. Thus, the offense of aggravated assault was committed when Williams produced the firearm – as Dixon reasonably anticipated she may be hurt or killed (given the circumstances).

In sum, Williams v. State, 238 So.3d 915 (Fla. 1st DCA 2018) is a significant contribution to Florida’s corpus of case law on aggravated assault. The 1st DCA found that:

• Even though Howard was Williams’s primary target, Williams’s remarks before pulling out his gun also indicated hostility to Byrd and Dixon (and at a minimum, that they were in the “zone of danger”)
• As a result, Byrd and Dixon had a well-founded fear of imminent and unlawful violence when Williams pulled his firearm (completing the offense of aggravated assault with a deadly weapon)
• Because the jury reasonably concluded that Dixon and Byrd were victims of aggravated assault, Williams’s convictions were affirmed

Florida’s criminal defense community should take note of Williams v. State, 238 So.3d 915 (Fla. 1st DCA 2018), as it makes clear “bystanders” can be considered victims of aggravated assault if the defendant’s words or actions reasonably placed them in fear of imminent, unlawful violence.

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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