Under Florida law the difference between being charged with assault vs. aggravated assault is huge. The penalties for aggravated assault are a lot more severe, often including jail or prison. Also, if you are convicted, or plea to aggravated assault, will have a permanent criminal record. Aggravated assault makes you ineligible for a seal or expungement.


So what elevates a regular assault to an aggravated one?


There are two factors:

  1. A deadly weapon was used in the course of the assault, or
  2. There was an intent to commit a felony (meaning the assault occurred during a burglary, robbery, rape, attempted murder, etc.)

Thankfully there are a number of defenses available to you if you’ve been accused of aggravated assault. One of the effective ones that we’ve seen success with in a number of cases is self defense based on Florida’s Stand Your Ground law.


Take the case of one of our former clients, Armando, for example.


Armando was pulling into a gas station and came very close to hitting another vehicle that was not in its lane. He had heated words with the driver and then parked his car to go into the convenience store to pick up a few items. As he got out of his car, he noticed the two men from the other car fast approaching him. They were cursing and making threatening gestures.


Outnumbered, Armando felt threatened and holstered his gun to his hip. (He had a concealed weapon permit for the gun and was hoping the visual effect of seeing the gun would help to avoid any kind of confrontation with these guys).


Armando had a few more words with the men, but that was it.  He then went into the convenience store to order food. As he was waiting for his food inside the store, a cop came in and approached Armando. The two men outside told the cop that Armando had waived the gun at them, and that they were afraid he was going to shoot.


He was handcuffed immediately, taken directly to jail and booked. Of course his gun was confiscated during the arrest process.


The prosecution filed charges of aggravated assault against Armando because his gun was considered a deadly weapon. So now, he was looking at  prison if convicted, and a maximum penalty of five years in prison.


When Armando hired our firm, we were able to prove that Armando was acting in self defense under Florida’s Stand Your Ground Law. He was at a gas station at night and two big guys were approaching him in a threatening manner. He feared his life was in danger and took necessary means to protect himself. The charges against him were dropped, and his gun was returned to him.

Attorney Adam Rossen
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South Florida Criminal & DUI Defense Attorney
Should have been a slam dunk. Display of a firearm without discharge is nondeadly force as a matter of law. (Until case law says otherwise, the fact that it may also be the threatening of deadly force is of little moment). Such force is justified when one reasonably believes he/she is about to suffer the use of any degree of unlawful force. It wasn't necessary for your client to "fear for his life." (That is not a legally recognized phrase; "fear" has no application in Florida law of justification except for where it appears by legislative blunder in one statutory provision, not applicable to your client's situation). Accordingly, your client was improperly detained/arrested . . . unless the arresting "agency" made a probable cause determination. The arresting officer(s) and agency need some training on the law. You likely need to pursue this further so that your client's arrest doesn't present an issue for him in the future.
by Steven M Harris April 10, 2019 at 11:21 AM
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