North FL’s Highest Court REVERSES Juvenile’s Aggravated Assault Conviction: “No Deadly Weapon”

April 24, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 1st District Court of Appeal REVERSED a juvenile’s adjudication for delinquency in an aggravated assault with a deadly weapon case, finding that a deadly weapon was not used as a matter of law. However, one judge dissented.

CASE: M.M. v. State, 391 So.2d 266 (Fla. 1st DCA 1980)

Charge(s): Aggravated Assault

Outcome: Conviction REVERSED, as the juvenile did not commit an aggravated assault with a deadly weapon as a matter of law.

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. It is typically considered a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine. But under certain circumstances, aggravated assault is a second-degree felony (up to 15 years in prison and a $10,000 fine). For more, click here.

For someone to be guilty of aggravated assault with a deadly weapon without intent to kill, 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)

If someone commits an aggravated assault with a deadly weapon WITH the intent to kill, this is likely to be charged as an even more serious crime – such as attempted second-degree murder, attempted first-degree murder, or attempted manslaughter by act. For more, click here.

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

• During a heated traffic dispute, A gets out of his vehicle with a gun at points it at another driver, B, with the intent to “scare” B
• During a bar fight, C breaks a gin bottle and rushes at D while swinging it wildly near his head, but does not strike D
• After an acrimonious breakup, E sees F on the street and rushes at her with a knife in an effort to “freak her out” – F turn arounds and runs away

In an aggravated assault prosecution, some and potentially all of the elements of the offense will be disputed at trial. The first of these, the making of an INTENTIONAL and UNLAWFUL threat of imminent violence, requires that the threat of violence be:

• Immediate, as opposed to conditional (e.g. “Next time I see you…” is not enough)
• Not made in lawful self-defense, defense of others, or to prevent commission of a forcible felony 

To learn more on when a Stand Your Ground claim may be viable in a Florida aggravated assault case, click here.

Next, the defendant must have the APPARENT ABILITY to carry out the threat. This does NOT mean that they had the actual ability to do so. L.C. v. State, 799 So.2d 330 (Fla. 5th DCA 2001)

However, Florida’s courts require the State to prove someone’s actions under the circumstances made it reasonable for an alleged victim to believe that the threat could be carried out. To learn more about apparent ability to carry out the threat in Florida aggravated assault cases, click here.

For a well-founded fear to be developed in the mind of a victim that they are about to be subject to imminent and unlawful violence, it must be the case that an OBJECTIVELY REASONABLE person in their position would have felt such a fear. L.R.W. v. State, 848 So.2d 1263 (Fla. 5th DCA 2003).

This means that sometimes, a defendant will not have PERSONALLY been placed in fear – but the defendant may still be found guilty of aggravated assault. For example, if someone illegally (e.g. without lawful justification) points a gun at another person during an argument, but he isn’t scared because of a career in the military, this is NOT a defense. 

It must only be the case that a REASONABLE PERSON in the alleged victim’s position would have experienced “well-founded fear.” However, this is a “double-edged sword.” If a victim says they were in fear when a reasonable person would not have been (e.g. someone was holding up a plastic spoon as the “weapon”), this is insufficient for a conviction. To learn more, click here.

Finally, there is the seminal question of what constitutes a deadly weapon for aggravated assault purposes. A “deadly weapon” for aggravated assault purposes is not simply a gun (firearm) or a knife. A deadly weapon in Florida is any instrument or object that is covered by either of the following definitions: 

• The object/instrument causing death or great bodily harm is “within the contemplation of its ordinary design” (e.g. firearms, knives, machetes)
• The object/instrument was used or threatened to be used in a manner that was likely to cause death or great bodily harm (Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020))

Objects found to constitute a deadly weapon for aggravated assault purposes have included spear guns, BB guns, large sticks, vehicles, chairs, and occasionally, rocks. For a breakdown of deadly weapons for aggravated assault purposes under Florida law, click here.

One of the key things to know about the definition of a “firearm” under Florida law (including its law surrounding aggravated assault) is that a STARTER GUN is not considered a firearm. This is because it is designed to fire blanks and not expel a projectile via an explosion (unless modified). For more on this, click here.

In one major aggravated assault case heard by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court), a juvenile was adjudicated delinquent after threatening the victim with what he believed to be a firearm that he was in imminent danger of being shot by. However, it was actually a starter gun.

According to law enforcement testimony at the juvenile defendant’s trial, the “gun” used in the alleged aggravated assault was a .22 caliber starter pistol with two bars in the barrel. Moreover, the barrel was warped in way that made it UNABLE to fire a projectile.

At trial, the defendant moved for a judgment of acquittal on various grounds – including the fact that a deadly weapon (e.g. an object or instrument capable of causing death or great bodily harm) was not used – as the starter gun was not an actual firearm. However, the trial judge DENIED the MJOA request, and the juvenile was adjudicated delinquent (e.g. found guilty).

On appeal, the juvenile argued to the 1st DCA that the trial judge erred as a matter of law when he failed to dismiss the case. The 1st DCA agreed with the juvenile, reversing the adjudication of delinquency as a matter of law. However, one judge voiced his disagreement in a DISSENT – where he indicated his support for affirming the adjudication of delinquency.

But why? Let’s take a look at the case, M.M. v. State, 391 So.2d 266 (Fla. 1st DCA 1980), and discuss what it means for defendants in Florida accused of aggravated assault.

KEY CASE: M.M. v. State, 391 So.2d 266 (Fla. 1st DCA 1980)

In M.M., the defendant (M.M.) was accused of aggravated assault with a deadly weapon against a juvenile victim. M.M. was also a juvenile. He was adjudicated delinquent (e.g. found guilty) by a trial judge after his motion for a judgment of acquittal was DENIED. At trial, the following was revealed:

• The victim testified he was “scared” when the gun was pointed at him
• Law enforcement officers testified that the “deadly weapon” used by M.M. was a starter pistol
• The pistol’s barrel was warped and two bars were inside, preventing it from being loaded with ammunition
• At trial, M.M. moved for a judgment of acquittal on the grounds that he did NOT threaten the victim with a deadly weapon as a matter of law, and there was an insufficient basis to determine the victim was actually placed in fear
• The trial judge DENIED the MJOA request, and ultimately, M.M. was adjudicated guilty

On appeal to the 1st DCA, M.M. argued the trial judge erroneously denied his MJOA request. He renewed the following arguments:

• The starter pistol was not a deadly weapon, so he could not be found guilty of aggravated assault as a matter of law
• The trial judge had insufficient evidence to conclude the victim was placed in actual fear, as even though he was “scared” when the “gun” was pointed at him, he also testified that he was not personally afraid of M.M.

The 1st DCA rejected M.M.’s second argument and found there was a sufficient basis to find that a SIMPLE ASSAULT (second-degree misdemeanor) was committed. However, the 1st DCA AGREED with M.M. that he was NOT GUILTY of aggravated assault – because the “gun” he used was not readily capable of firing a projectile. Thus, it was not a deadly weapon:

“As to whether the assault was an aggravated assault, Section 784.021, Florida Statutes (1979), provides in pertinent part that an “aggravated assault is an assault with a deadly weapon without intent to kill.” The issue presented here is whether the starter gun used by appellant was a deadly weapon. The State’s expert witness, a police officer, testified that the instrument was a .22 caliber starter pistol which had two bars in the barrel and on which the barrel was warped such that the instrument could not fire a projectile. The instrument could not be loaded with a real bullet. 

“Furthermore, the officer testified that the instrument could be modified to make it operable, but that modification could only be accomplished by an experienced and knowledgeable person. The testimony revealed that the starter pistol did look just like a regular gun to the ordinary observer. Based on these facts, we believe that the evidence failed to support the determination that the starter pistol was a deadly weapon. As noted in Goswick v. State, 143 So.2d 817 (Fla.1962), “It is the nature of the weapon that characterizes the assault as ‘aggravated.’ ” (143 So.2d at 820) The standard Jury Instruction on aggravated assault defines a deadly weapon as “any weapon which, in the manner in which it is used or threatened to be used, is likely to produce death or great bodily harm.”

Put simply, because the starter gun was INCAPABLE of firing an actual round at the time it was used to threaten the victim, M.M. did not commit aggravated assault with a deadly weapon.

However, one 1st DCA judge indicated his strong disagreement with this finding. Judge Booth of the 1st DCA argued that the victim reasonably believing he was being threatened with an actual firearm at the time was sufficient to sustain the adjudication of delinquency:

“I would affirm the judgment below in its entirety. Aggravated assault was charged based on defendant’s use of a starter pistol which he pointed at the victim. The gun was inoperable, but the victim was unaware of that fact and testified: “It looked like a .38 to me,” and “I felt scared.” That is the critical point. The gravamen of any assault is the putting in fear of the victim.”

“In this case, an expert testified that the gun used was a .22 caliber starter pistol which has a firing pin that strikes and explodes gunpowder in blank cartridges but shoots no projectile. The gun would not fire projectiles because of a bar in the cylinder, but, when the cylinder is in place, the bar was not visible to the person having the gun pointed at him. Further testimony was that, because the barrel is larger than the cylinder, a person having this particular pistol pointed at him would believe that it was a larger handgun than a .22 caliber. Finally, expert testimony was that the gun could be made operable and was a “firearm” within the meaning of Florida Statutes s 790.001(6) … The fact that the weapon can be adapted to fire a projectile indicates its structural similarity to a weapon capable of firing a projectile and substantiates the well-founded fear of the victim. I dissent from that portion of the majority’s opinion which requires the reduction of the offense to simple assault.”

But Judge Booth’s opinion did not win the day. As a result, M.M.’s adjudication of delinquency for aggravated assault with a deadly weapon was reversed, and an adjudication of delinquency for simple assault was entered.

In sum, M.M. v. State, 391 So.2d 266 (Fla. 1st DCA 1980) marks a significant development in Florida’s corpus of case law surrounding aggravated assault with a deadly weapon. Florida’s 1st DCA (Tallahassee and North FL’s highest court) held that:

• M.M. did not use a deadly weapon as a matter of law in threatening the victim
• This meant the trial judge ERRED by denying the motion for a judgment of acquittal on the charge of aggravated assault
• There was a sufficient basis to conclude a simple (second-degree misdemeanor) assault had been committed
• Thus, the adjudication of delinquency for aggravated assault with a deadly weapon was REVERSED, and an adjudication of delinquency for simple assault was entered in its place

Judge Booth dissented, arguing that the victim reasonably believed he was being threatened with a loaded, functional firearm – which (to Judge Booth) was sufficient to sustain the adjudication of delinquency for aggravated assault in M.M.’s case.

Florida’s criminal defense community should take note of M.M. v. State, 391 So.2d 266 (Fla. 1st DCA 1980), as it makes clear Tallahassee’s highest court will REVERSE aggravated assault convictions if no deadly weapon was used as a matter of law (even if a victim BELIEVED they were being threatened with one).

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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