Well-Founded Fear in Florida Aggravated Assault Case Explained

August 28, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

A critical element of aggravated assault is that the actions were of a nature that a reasonable victim would develop a “well-founded fear” that unlawful violence was imminent. When people hear this, they typically ask two questions:

• What type of action is required to produce a well-founded fear of violence?
• Is this a subjective (the victim had to personally feel fearful) or objective (a reasonable person would have been fearful) standard?

This blog will outline the elements of aggravated assault in Florida, potential penalties, and discuss the answers to these two key questions.

In Florida, aggravated assault (Fla. Stat. 784.021) is a very serious felony offense. Aggravated assault can occur in one of two ways: with a deadly weapon without intent to kill, or with the intent to commit a separate felony. It is generally a third-degree felony punishable by up to 5 years in prison and a $5,000 fine.

For aggravated assault to be committed in Florida, the State must prove all of the following occurred beyond a reasonable doubt:

• The defendant made a threat, by word or by act, to do imminent and unlawful violence to another person
• The defendant had the apparent ability to carry out that threat in the eyes of the victim
• The action was of such a nature that it would induce fear in the mind of a reasonable person that violence was imminent (these three elements are simple assault)
• The assault involved the use of a deadly weapon without intent to kill, or was done with the intent to commit a separate felony

Though aggravated assault is typically a third-degree felony, it is enhanceable to a second-degree felony (up to 15 years in prison and a $10,000 fine) if either of the following are true:

• The victim of the aggravated assault was a police officer, EMT, firefighter, any hospital employee while working, railroad special officer, or public transit employee or agent (Fla. Stat. 784.07)
• The aggravated assault was committed in furtherance of a riot or aggravated riot

Note: Florida law does not require that someone actually injured or made physical contact with a victim for aggravated assault to occur. In fact, if a victim is actually touched, this is more likely to be charged as battery or aggravated battery (depending on the facts of a case).

Examples of aggravated assault with a deadly weapon without intent to kill may include any of the following:

• During a road rage incident, C pulls out a gun and points it at D while yelling, but does not intend to shoot
• During a heated argument at home, E pulls out a steak knife and begins making stabbing motions in G’s direction in hopes that she will run out of the room
• During a bar fight, M brings out a bat from his car and begins swinging wildly near P’s head, but does not hit him

Many believe a deadly weapon is limited to firearms and knives. However, Florida’s courts have recognized that a deadly weapon is either of the following in an aggravated assault case:

• Any instrument which, when used in the ordinary manner contemplated by its design, will or is likely to cause death or great bodily harm
• Any instrument likely to cause great bodily harm because of the way it is used during a crime (J.W. v. State, 807 So.2d 148 (Fla. 2d. DCA 2002))

This may include bats and clubs, BB guns, hammers, vehicles, an unloaded air pistol, rocks, canes, and more. Cloninger v. State, 846 So.2d 1192 (Fla. 4th DCA 2003)

Aggravated assault with intent to commit a separate felony occurs in the following examples:

• S corners T in an alley in an attempt to rape her, and tells T he will kill her if she attempts to move. Before he can make physical contact with her, a bystander notices and S runs away (aggravated assault with intent to commit sexual battery).
• H sees a minor, J, on the side of the road. He gets out of his van and tells J to get in the back or else he will kill him (aggravated assault with intent to commit kidnapping).
• K goes into an Apple store and grabs a $1,000 laptop. He threatens to kill an employee, P, if he tries to stop him (aggravated assault with intent to commit grand theft).

In all aggravated assault cases, a critical element must be that the actions were sufficient to put a reasonable victim in well-founded fear of violence. Legally, this means that even if the victim was not personally in fear of imminent violence but a reasonable person would have been, this can support a conviction. Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020)

However, this works the other way as well. If a victim developed an unreasonable fear of imminent unlawful violence based, someone may be acquitted of aggravated assault despite the victim’s fear.

Courts have noted that fear does not have to be established through a victim’s testimony. It can be inferred from the circumstances surrounding the defendant’s actions. However, the State still must prove the actions of the defendant were sufficient to put a reasonable victim in fear of imminent and unlawful violence. McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980)

In McClain, for example, the court affirmed the appellant’s aggravated assault conviction. McClain was among a group of intruders who had allegedly pointed guns at a group of victims and threatened to kill them. Though the victims did not testify they were in fear, the court upheld the trial verdict, stating that the circumstances would clearly induce fear in a reasonable person.

Well-founded fear can also be inferred by the actions of a victim. In Daniels v. State, Daniels fired a gun towards a group of men, who ran and ducked in response. Even though the men did not testify they were in fear, the court held that their response (running and ducking) was clear evidence of a well-founded fear of being shot.

Similarly, in Bryant v. State, 154 So.3d 1164 (Fla. 2d. DCA 2015), Bryant was accused of pulling a knife on store employees. The employees backed away when this occurred, but did not testify they were in fear. The court held that a well-founded fear of imminent violence was established because the store employees backed away out of fear they were about to be stabbed.

Some hypothetical examples of when an aggravated assault conviction may still occur despite a lack of fear of imminent violence by the victim include:

• A pulls a gun on B during a traffic dispute and points it into his car. B, a combat veteran, does not get scared because he is confident A won’t actually shoot him. A can still be charged and convicted of aggravated assault because well-founded fear would have been reasonable.
• G pulls a knife on H without provocation and threatens him. Rather than backing away, H laughs and pushes G, who then flees. G can still be convicted of aggravated assault, as fear of imminent violence would have been reasonable and well-founded.
• V pulls up in a van close to R, a child, and says he will kill R if R doesn’t get in the van. R does not believe him, thinking it’s a joke, and walks away. V does not follow him. V can still be charged with aggravated assault with intent to commit kidnapping.

Examples of when an aggravated assault charge is likely to fail because the victim’s fear was unreasonable (not well-founded) include:

• K is chopping carrots and L walks into the room. Despite not threatening her, L is terrified that she is about to be stabbed and calls the police. Since L’s fear of imminent and unlawful violence was not well-founded, this cannot support an aggravated assault conviction of K.
• C is a baseball player. As C is clumsily walking near home plate and scrolling his phone at practice, G swings at a pitch and nearly hits C, who jumps back in terror. This cannot support an aggravated assault conviction, as there was no intent to threaten C and his fear of violence was unreasonable.
• A teenager waves what is clearly a small water gun around in his front yard. A nearby neighbor happens to see this, gets scared and puts in a 911 call. The child had no intent to threaten and the fear of imminent violence was not well-founded.

In essence, for “well-founded fear” to be found in an aggravated assault case, the actions must be of a nature to ordinarily induce fear in the mind of a reasonable person.

There are many defenses to aggravated assault in Florida, one or more of which may apply depending on the facts of a case. These include:

• Self-defense/defense of others: If the conduct was a reasonable and proportionate response to the threat faced under Florida’s Stand Your Ground law, this is a total defense (Fla. Stat. 776.012 and 776.032)
• Lack of intent to threaten or cause fear to the victim (e.g. a gun accidentally falling out of someone’s waistband)
• No apparent ability to carry out the threat (such as threatening to stab someone who is thousands of miles away)
• Procedural challenges (motions to suppress, Miranda waiver issues, etc.)
• False allegations (if a lack of corroborating evidence)
• Involuntary intoxication (but not voluntary intoxication, per Fla. Stat. 775.051)
• Alibi/mistaken identity (especially effective with GPS/phone data, witness accounts disputing the defendant’s presence, etc.)
• No intent to commit an underlying felony, only a misdemeanor (e.g. a teenager telling a store clerk they will punch them if they don’t let them steal a bag of chips, which is petit theft – a misdemeanor). This is a partial defense as it is still assault, just not aggravated assault.
• Necessity/duress (under limited circumstances)

In sum, aggravated assault requires someone to make an unlawful threat sufficient to create a well-founded fear of imminent violence, have the apparent ability to carry it out, and to do so with a deadly weapon without intent to kill or the intent to commit a separate felony.

In determining whether the “well-founded fear” element of aggravated assault is satisfied, Florida’s courts apply an objective test. If the act would have created a fear of imminent and unlawful violence in the mind of a reasonable victim, this aspect of the charge is proven. 

This is a double-edged sword. An aggravated assault conviction may occur even if the victim was not in fear, but also may not occur if a victim’s fear was not well-founded. 

Aggravated assault is a very serious charge in Florida that 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 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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