What Is an Intentional Unlawful Threat in Florida Aggravated Assault Cases?

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

In Florida, aggravated assault (Fla. Stat. 784.21) is a very serious felony offense. It is punishable by up to 5 years in prison and a $5,000 fine. If done in furtherance of a riot or aggravated riot, or the victim belongs to a group listed under Fla. Stat. 784.07 (police, firefighters, EMTs, etc.), it is a second-degree felony punishable by up to 15 years and a $10,000 fine.

One of the core elements of assault and aggravated assault is that there must be an intentional, unlawful threat made by the defendant to do imminent violence. This can either be done by word or by act. This blog will explore the elements of aggravated assault in Florida, with specific focus on what constitutes an intentional and unlawful violent threat.

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

• The defendant intentionally and unlawfully threatened, by word or act, to do imminent violence to the victim without lawful justification 
• The defendant had the apparent ability to carry out the threat at the time it was made
• The threat was of such a nature as to place a reasonable victim in well-founded fear that violence is about to occur
• The assault was made either with a deadly weapon without intent to kill, or with the intent to commit a separate felony

Examples of aggravated assault with a deadly weapon but without intent to kill include:

• A pulls a gun on B and points it at him during a road rage incident, threatening to kill him but not actually intending to do so
• C gets a bat from his bedroom during an argument with D and begins swinging it near his head while yelling threats, but does not hit him
• E drunkenly breaks a beer bottle during a bar fight and swings it in F’s direction while telling him to get out of the restaurant

Under Cloninger v. State, Florida defines a deadly weapon as any instrument that is used or threatened to be used in a manner likely to cause death or serious bodily harm (as distinct from mere bruises, per Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016)).

Courts have found all of the following to qualify as deadly weapons under certain circumstances:

• Firearms and knives (firearm is a deadly weapon as a matter of law)
• Bats and clubs
• Hammers (Colainni v. State, 245 So.2d 893 (Fla. 2d. DCA 1971))
• BB/pellet guns (In Interest of W.M., 491 So.2d 1263 (1986))
• Vehicles (Cloninger v. State, 846 So.2d 1192 (Fla. 4th DCA 2003))
• A piece of a broken crossbow (King v. State, 779 So.2d 466 (Fla. 2d. DCA 2000))
• Sticks (Coronado v. State, 654 So.2d 1267 (Fla. 2d DCA 1995))
• Rocks and canes (Saint‑Fort v. State, 222 So. 3d 624 (Fla. 4th DCA 2017))
• An unloaded air pistol (Duba v. State, 446 So.2d 1167 (Fla. 5th DCA 1984)
• Loaded spearguns (even on land) (In Interest of W.M., 491 So.2d 1263 (1986))

Aggravated assault with intent to commit a separate felony may include any of the following conduct:

• P corners T in an alley and rushes towards her, telling T he will kill her if she does not allow him to have sex with her. However, K sees them while walking by and P flees before the act is committed. (Aggravated assault with intent to commit sexual battery)
• J rushes up to Y while Y is walking home from work and places a hand in his pocket, threatening to stab Y if he does not hand over his wallet. Believing J has a hidden knife, Y goes to hand his wallet over, but a nearby police officer intervenes. (Aggravated assault with intent to commit robbery)
• F approaches G, a child, in a van and begins to yell that he will kill him if he doesn’t get in the back of his vehicle. G runs away and F gives chase, but eventually gives up. (Aggravated assault with intent to commit kidnapping)

In all of these cases, an intentional and unlawful threat was made by word or act to do violence to the victim. Critically, the defendant does not have to have the specific intent to do violence to the victim. Instead, the defendant must engage in conduct that is substantially certain to put the victim in fear of imminent violence. Pinkney v. State, 74 So.3d 572 (Fla. 2d. DCA 2011) 

In Pinkney, the appellant was convicted of aggravated assault on a police officer after driving his car erratically near the officer. On appeal, Pinkney argued he did not intend to put the officer he was charged with assaulting in imminent fear of violence – and that the State had not proven this at trial.

Despite this seemingly convincing argument, the court affirmed the verdict. The court reasoned that Pinkney intentionally drove the vehicle in a manner that was substantially certain to place the officer in fear of imminent, unlawful violence. Even without a specific intent to harm the officer, the court ruled that Pinkney understood his actions were substantially certain to create a well-founded fear of violence.

Importantly, the word or act must be substantially certain to put a reasonable victim in fear of imminent and unlawful violence. Even if the actual victim was not personally in fear, this prong can be satisfied. Gilbert v. State, 347 So.2d 1087 (Fla. 3d. DCA 1977).

Moreover, an intentional and unlawful threat to do violence must be directed at a particular victim (or victims). T.R.W. v. State, 363 So.3d 1081 (Fla. 2023). In T.R.W., the Florida Supreme Court held that an intentional, unlawful threat cannot occur via reckless or negligent conduct that does not have a target victim.

Under T.R.W., examples of actions that do not constitute aggravated assault because of a lack of an intentional and unlawful threat of violence include:

• R is waving his gun around in his backyard, thinking nobody sees him. However, a frightened neighbor is watching through their window and calls the police. R is not guilty of aggravated assault.
• J is cleaning his rifle on his porch. A passerby on the sidewalk sees this occurring and becomes fearful, believing J is potentially targeting them. J is not guilty of aggravated assault as he did not intentionally target the passerby with a firearm-related threat.
• K is at a shooting range firing lawfully downrange. A person driving by hears the shots and believes K is firing at them. Since K’s conduct was not directed as a threat to that particular person, there is no intentional unlawful threat, so aggravated assault has not occurred.
• P lifts his shirt at the grocery store to itch his back and his lawfully-carried pistol shows. L panics and calls the police, but there is no intentional threat.
• T is watching a movie alone at home and yells, “I’m going to kill you” at a fictional character while waving a kitchen knife. A passerby on the sidewalk panics and calls the police, but there is no intentional threat.

Important: Conditional threats can constitute aggravated assault under certain circumstances. For example, if someone yells a threat such as “if you don’t get off my property, I’ll blow your heads off” while pointing a gun, this can still satisfy the elements of aggravated assault if they create a well-founded fear of imminent harm. Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020)

An intentional unlawful threat must not have a legal justification to be considered aggravated assault.

Under Florida’s Stand Your Ground law (Fla. Stat. 776.012), someone may intentionally use or threaten to use force (including deadly force) legally if:

• They did not initiate the encounter
• They are in a place they had the lawful right to be
• They are not actively engaged in criminal activity at the time 
• The threat of force or use of force is a reasonable and proportionate response in self-defense, defense of others, or to prevent the commission of a forcible felony

Note: Florida’s courts are currently split on whether illegally possessing a firearm automatically disqualifies someone from invoking Stand Your Ground because they were engaged in “criminal activity” at the time of the shooting. Florida’s 2nd DCA says this is not a bar to the defense (Little v. State), whereas the 4th DCA says it is (Harris v. State).

In addition to Stand Your Ground, many lawful defenses exist to aggravated assault, which may include:

• Lack of intentional/unlawful threat
• No reasonable fear of violence
• Victim’s misperception (e.g. lawful gun handling mistaken for a threat)
• No apparent ability to carry out the threat
• No intent to commit a separate felony/no deadly weapon
• False allegation 
• Alibi/mistaken identity
• Procedural challenges (e.g. moving to suppress post-arrest statements or exclude the introduction of certain evidence that was unlawfully obtained)

In sum, an intentional and unlawful threat occurs for aggravated assault purposes when someone threatens by word or by act to do imminent violence to the victim without legal justification. The threat must be of a nature that if the threatened act was carried out, it would be substantially certain to cause the victim death or great bodily harm.

Florida’s courts are clear that there must be one or more “target victims” of an aggravated assault. This cannot occur via reckless or negligent conduct alone (e.g. waving a gun around in someone’s backyard, and a neighbor happens to see it and calls the police).

Aggravated assault and assault are very serious charges in Florida that can carry lengthy jail or prison sentences and heavy financial penalties. If someone is charged with either of these, 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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