North FL’s Highest Court Reverses 20-Year Sentence for Warning Shots… Here’s Why

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

Case Summary

Florida’s 1st District Court of Appeal reversed a woman’s conviction for aggravated assault with a firearm – which resulted in a 20-year prison sentence – based on a trial judge’s “fundamental error” in giving an incorrect jury instruction.

• CASE: Alexander v. State, 121 So.3d 1185 (Fla. 1st DCA 2013) 
• Charge(s): Attempted Second-Degree Murder
• Outcome: Conviction REVERSED, as trial judge gave an erroneous jury instruction shifting the burden of proof to the defendant.

Aggravated Assault with a Deadly Weapon in Florida

In Florida, aggravated assault with a deadly weapon (Fla. Stat. 784.021(1)(a)) is a very serious felony offense. For someone to be guilty, 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 are the three elements of simple assault)
• A deadly weapon was used in making the threat

Aggravated assault with a deadly weapon without intent to kill is a third-degree felony (up to 5 years in prison and a $5,000 fine). Under certain circumstances, aggravated assault with a deadly weapon is a second-degree felony (up to 15 years in prison and a $10,000 fine). To learn more about when that enhancement applies, click here.

Examples of aggravated assault with a deadly weapon in Florida include any of the following acts:

• During a road rage incident, A exits his car and points his gun at B, without intent to fire it (but placing B in imminent fear of unlawful violence)
• During an argument in a bar, C pulls a knife on D and threatens to “cut him up” – but does not take any further steps towards doing so
• During a dispute over F’s dog eating one of his plants, E chases F off his property with a baseball bat while swinging it wildly near his head

Though many think aggravated assault with a deadly weapon only occurs when someone pulls a gun or knife, this is incorrect. The following definitions apply to a deadly weapon in Florida:

• Any object or instrument that is capable of inflicting death or serious bodily harm if used in the “ordinary contemplation of its design” (e.g. guns, knives)
• Any object or instrument that is used or threatened to be used in a manner likely to cause death or serious bodily harm (Cloninger v. State, 846 So.2d 1192 (Fla. 4th DCA 2003))

If aggravated assault occurs with a firearm, this is partially covered by Florida’s 10-20-Life law (Fla. Stat. 775.087). The 10-20-Life law provides that for offenses it covers (murder, attempted murder, manslaughter, armed robbery, and more), the following penalties apply if a firearm is involved in the commission of the offense:

• If the firearm is carried, brandished, or pointed (but not discharged) in the commission of the offense, a mandatory minimum sentence of 10 years in prison
• If the firearm is discharged but this does not result in an injury or death, a mandatory minimum sentence of 20 years in prison 
• If the firearm is discharged and an injury or death results, a mandatory minimum sentence of 25 years to life in prison (Mendenhall v. State, 48 So. 3d 740 (Fla. 2010))

Florida’s aggravated assault law has a somewhat “complicated” relationship with the 10-20-Life statute. Until 2016, the use of a firearm to commit an aggravated assault with a deadly weapon (e.g. pointing, brandishing) had a 3-year mandatory minimum prison sentence, even if the gun was never fired. 

However, the Florida Legislature abolished this a decade ago. Now, although someone may still face up to 5 years in prison for an aggravated assault with a firearm that they did not discharge, there is no mandatory minimum sentence attached. For more, click here.

Things get more complicated when a gun is discharged in the course of an aggravated assault. An example of an aggravated assault involving the discharge of a firearm may include someone briefly pointing a gun at someone, then intentionally firing into the air to “scare” them (e.g. a warning shot).

If an aggravated assault with a deadly weapon involves the discharge of a firearm, this is covered by Florida’s 10-20-Life law. Put simply, this means an act like the one described above requires a mandatory minimum sentence of 20 years in prison if someone is guilty (Fla. Stat. 775.087).

In such cases, a defendant is entitled to a jury instruction for justified use of deadly force if they argue the gun was discharged in self-defense and any evidence is offered of this. Discharging a firearm in Florida, even if it is only “warning shots,” is automatically considered use of deadly force under state law. Hosnedl v. State, 126 So.3d 400, 404 (Fla. 4th DCA 2013)

This makes it especially important that when someone is charged with aggravated assault with a firearm after allegedly discharging it (or a related offense like attempted second-degree murder), a justified use of deadly force jury instruction is requested. Someone has a right to discharge a firearm if they reasonably believe they are in imminent danger of death or serious bodily injury.

But what happens when the trial judge fails to give such an instruction, despite evidence in the record indicating the defendant’s “aggravated assault” was an act of self-defense? Alternatively, what if the judge does give a justifiable use of deadly force instruction to the jury – but misstates the law (e.g. narrows when deadly force is justified)?

In such cases, Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court) has held that such an error is fundamental – meaning the defendant must receive a new trial if they were convicted. 

Let’s take a look at a key high-profile case in which this occurred – Alexander v. State, 121 So.3d 1185 (Fla. 1st DCA 2013) – and discuss what it means for defendants seeking a justifiable use of deadly force instruction in Florida.

KEY CASE: Alexander v. State, 121 So.3d 1185 (Fla. 1st DCA 2013) 

In Alexander, the defendant (Alexander) fired a “warning shot” into the ceiling of her house to deter her husband from striking her. According to the 1st DCA, the following was revealed at trial:

“Once inside the garage, appellant testified, she tried to leave the premises altogether but could not get the garage door open, and instead retrieved a gun (for which she had a permit) from the glove compartment of a vehicle in the garage. She then walked back into the house, she said, holding the gun by her side because she did not know whether Mr. Gray had left or not. As she walked into the kitchen, Mr. Gray saw the gun, and charged her “in a rage,” saying, “Bitch, I’ll kill you.” Startled, she raised the gun into the air and fired. Mr. Gray ran.  According to appellant, she was forced to fire her gun into the air as a warning shot because it was the “lesser of two evils.””

“For appellant, she testified, the firing of the gun was the culmination of a year-and-a-half’s abuse at her husband’s hands. She recounted for the jury at least three other incidents of physical abuse, beginning shortly after she moved in with him in early 2009. She described Mr. Gray’s choking her, attempting to strangle her, almost causing her to lose consciousness, and another occasion, six months later, when Mr. Gray shoved her repeatedly and violently, causing injuries that required hospitalization. That time she called law enforcement and Mr. Gray was arrested. She subsequently obtained a domestic violence injunction against him. In 2010, she testified, five months after she had become pregnant with Mr. Gray’s child, he “head-butted” her twice, tore her clothes, and threw her to the ground. During all these episodes—and at other times, as well—he threatened to kill her, she said.”

Before trial, Alexander filed a motion for pretrial immunity pursuant to Florida’s Stand Your Ground law. Alexander argued that she lawfully defended herself from the imminent use of deadly force (e.g. death or serious bodily injury) that she reasonably believed was about to be inflicted upon her by her husband.

However, the trial judge denied her motion. Alexander was brought to trial, where she was found guilty of aggravated assault involving the discharge of a firearm by the jury – which rejected her “justified use of deadly force” claim. Alexander was sentenced to 20 years in prison, pursuant to the 10-20-Life law (as a gun was discharged).

Alexander requested a “justifiable use of deadly force” jury instruction at trial – which the jury received. It read the following:

“A person is justified in using deadly force if she reasonably believes that such force is necessary to prevent: 1. imminent death or great bodily harm to herself or another, or 2. the imminent commission of Aggravated Battery against herself or another. AGGRAVATED BATTERY 3 To prove the crime of Aggravated Battery, the following two elements must be proven beyond a reasonable doubt. The first element is a definition of battery. 1. Rico Gray Sr. intentionally touched or struck MARISSA DANIELLE ALEXANDER against her will. 2. Rico Gray Sr. in committing the battery intentionally or knowingly caused great bodily harm to MARISSA DANIELLE ALEXANDER.”

Appealing the guilty verdict in her case, Alexander argued the justifiable use of deadly force jury instruction contained a misstatement of law. Alexander noted that the jury instruction indicated that she was required to prove beyond a reasonable doubt that Gray was about to commit an aggravated battery upon her.

However, Alexander observed in her appeal to the 1st DCA that this was an incorrect statement of the law. Alexander asserted that she did not have to prove Gray guilty beyond a reasonable doubt of attempted aggravated battery – she simply had to create reasonable doubt of the State’s claim that she was not defending herself. This is often referred to as “burden shifting.”

The 1st DCA agreed with Alexander, reversing the guilty verdict in her case after finding that the error was “fundamental.” The 1st DCA wrote:

“By including the phrase “beyond a reasonable doubt” when giving the instruction on the aggravated battery prong of the self-defense instruction, the trial court improperly transmuted the prosecution’s burden to prove guilt beyond a reasonable doubt into a burden on the appellant to prove self-defense beyond a reasonable doubt, depriving her of a trial under the correct rule. The defendant’s burden is only to raise a reasonable doubt concerning self-defense. The defendant does not have the burden to prove the victim guilty of the aggression defended against beyond a reasonable doubt. “When a defendant claims self-defense, the State maintains the burden of proving the defendant committed the crime and did not act in self-defense.”

“The defendant was “entitled to have the jury correctly instructed on self-defense.”  Montijo, 61 So.3d at 427. The trial court committed fundamental error in requiring proof beyond a reasonable doubt that appellant’s husband committed aggravated battery immediately before she fired the warning shot, or would have done so but for the shot. Accordingly, we reverse and remand for a new trial.”

Put simply, because the jury’s verdict was potentially the product of the trial judge misstating the law, this vitiated the proceedings (requiring that Alexander receive a new trial).

Judge Wetherell of the 1st DCA authored a concurring opinion in the case – arguing that while the majority was correct about its legal conclusions, the majority attempted to frame the facts of Alexander’s case too sympathetically:

“I agree based on the case law cited in the majority opinion that this case must be reversed and remanded for a new trial as a result of the fundamentally erroneous jury instructions pertaining to the issue of self-defense, which was the central issue in this case. I write separately to emphasize that the facts summarized in the majority opinion describe the shooting and the events leading up to it in the light most favorable to Appellant. The jury also heard testimony that painted Appellant as the aggressor during the incident and directly contradicted Appellant’s version of the events, including her all-important claim that she only fired the gun because her husband charged at her in a rage while threatening to kill her. It was the prerogative of the jury to determine which version of events to believe and, by its verdict, it appears that the jury rejected Appellant’s version of events.”

In sum, Alexander v. State, 121 So.3d 1185 (Fla. 1st DCA 2013) is a significant development in Florida case law on the issue of justified use of deadly force instructions at criminal trials. The 1st DCA found that:

• The jury was misled to believe that Alexander was required to prove beyond a reasonable doubt that she acted in self-defense while facing an imminent aggravated battery
• This shifted the burden of proof to the defendant impermissibly, constituting fundamental error
• Because this vitiated the proceedings, Alexander was entitled to a new trial

Florida’s criminal defense community should take note of Alexander v. State, 121 So.3d 1185 (Fla. 1st DCA 2013), as it makes clear the State may not silently “burden shift” when the jury is instructed on self-defense (e.g. justifiable use of deadly force) in murder, attempted murder, or aggravated assault cases.

If someone is concerned about being charged with murder, manslaughter or a related offense, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

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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