I’m Tampa Criminal Defense Attorney Rocky Brancato. For over 25 years, I’ve defended people in Hillsborough County facing assault and aggravated assault charges — from bar fights to road rage incidents to domestic disputes that got out of hand.

What Is Assault Under Florida Law?

Most people think assault means hitting someone. In Florida, that’s actually battery. Assault is something different — and police can arrest you for it even if you never touched anyone.

Florida Statute §784.011 — Assault: An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

In plain English, the State has to prove three things to convict you of assault:

1. You made an intentional threat — by words or actions — to hurt someone.
2. You appeared to have the ability to carry out that threat at the time.
3. The other person had a real fear that violence was about to happen right then and there.

So if someone gets in your face during an argument and you raise your fist and say “I’m going to knock you out” — that can be assault, even though you never swung. On the other hand, if you say something like “I’ll deal with you next week,” that’s a conditional, future threat. Florida courts have ruled that conditional threats about some unspecified future time are not assault.

Additionally, you must direct the threat at a specific person. The Florida Supreme Court made clear in Somers v. United States (2022) that the assault statute requires the actor to intentionally direct the threat at another individual. In other words, reckless behavior that happens to scare someone is not enough — the State must prove you targeted someone.

What Is Aggravated Assault in Florida?

Aggravated assault is where simple assault becomes a felony. Under Florida law (§784.021), assault becomes aggravated when either of these is true:

1. You used or displayed a deadly weapon during the assault (without intent to kill), OR
2. You committed the assault with an intent to commit a felony.

This is where cases get serious fast. For example, if you threaten someone while holding a knife, a gun, a bat, or even a car — anything that could cause death or serious injury — the State can charge you with aggravated assault. Similarly, if prosecutors can argue that you threatened someone as part of committing another felony (like robbery or burglary), that’s also aggravated assault.

Warning: Aggravated assault is a third-degree felony. A conviction means up to 5 years in Florida State Prison, 5 years of probation, and a $5,000 fine. If the person used a firearm, the 10-20-Life law can add a mandatory minimum sentence. This will follow you for the rest of your life.

What Is the Difference Between Assault and Battery?

People confuse assault and battery constantly, but they are two separate crimes in Florida. The simplest way to think about it: assault is the threat, battery is the touch.

Because they are separate offenses, you can be charged with both. However, if the assault and battery arise from the same act, your attorney can challenge dual convictions on double jeopardy grounds. This is something we look at in every case at The Brancato Law Firm, P.A.

What Are the Penalties for Assault in Florida?

The penalties for assault charges in Florida depend entirely on whether you’re facing simple assault or aggravated assault. Here’s what you’re looking at:

Beyond these penalties, a felony conviction for aggravated assault creates permanent consequences. You lose your right to own a firearm. You have a felony on your record that shows up on every background check. It can affect your ability to find work, rent an apartment, or maintain custody of your children. This is why early, aggressive defense matters.

What Counts as a “Deadly Weapon” in Florida?

This is one of the most common questions people ask — and the answer may surprise you. A “deadly weapon” under Florida law goes far beyond guns and knives. It includes anything that, based on how someone used it or threatened to use it, could cause death or great bodily harm.

Florida courts have treated all of the following as deadly weapons in assault cases: firearms (including BB guns and pellet guns pointed at someone), knives, baseball bats, cars, bottles, chairs, and even broom handles — depending on how the person used them.

However, not everything qualifies. In Austin v. State, a Florida court ruled that spraying mace into someone’s mouth was not a deadly weapon because the evidence did not show it could cause death or serious harm. In another case, a court ruled that a cigarette lighter shaped like a gun did not qualify as a deadly weapon and reduced the conviction to simple assault.

At The Brancato Law Firm, P.A., we challenge the deadly weapon element in aggravated assault cases whenever the evidence supports it. If the object was not actually capable of causing death or great bodily harm, the felony charge should not stand.

Can Words Alone Be Assault in Florida?

Yes — but only if the words rise to the level of a genuine threat of imminent violence. The statute says the threat can be “by word or act.” So words alone can technically be assault, but courts have set limits.

For example, a Florida court ruled that saying “If I see you around another man, I’ll hurt you” was not assault because it was a conditional, future threat — not an immediate one. On the other hand, telling someone “I’m going to kill you” while standing close enough to do it, with your fists raised, absolutely qualifies.

Additionally, the person you threaten must actually experience fear that violence is about to happen. If the alleged victim did not fear immediate harm — for instance, if they were laughing or calm and called for help without urgency — we can argue that element was not met. We have seen cases in the 13th Judicial Circuit where the State’s evidence on the fear element fell apart under cross-examination.

What Are Enhanced Penalties for Assault on Certain Victims?

Florida increases the penalties when the alleged victim belongs to a protected class. Under §784.07 and related statutes, assaulting certain individuals bumps the charge up by one level:

If you are charged with assault on a law enforcement officer in Hillsborough County, the State Attorney’s Office will push hard for the enhanced penalty. We know how prosecutors in the 13th Judicial Circuit handle these cases, and we prepare accordingly.

How Do We Defend Assault and Aggravated Assault Charges?

Every assault case has weaknesses — even the ones that look bad at first. With over 25 years of experience and more than 150 jury trials to verdict, I know where to look. As a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, I led and mentored over 100 attorneys handling these exact types of cases. These are the defense strategies we use most often:

Self-defense. Florida’s Stand Your Ground law allows you to threaten force when you reasonably believe you are in danger. If the other person came at you first, we build the self-defense case. The State then has to prove beyond a reasonable doubt that you were NOT acting in self-defense.

No intent. Assault requires an intentional threat. If the other person misinterpreted your words or actions — if you were joking, venting, or reacting in the moment without directing a threat at anyone — the intent element falls apart.

No well-founded fear. The alleged victim must have genuinely feared imminent violence. If they did not react with fear — if they stayed calm, did not call for help, or even laughed — we use that to challenge the State’s case. Florida courts have thrown out assault convictions where the State failed to prove the fear element.

The object is not a deadly weapon. For aggravated assault, the State must prove the weapon was actually deadly. If the object could not realistically cause death or great bodily harm, we argue for reducing the charge to simple assault.

Lack of apparent ability. If you made a threat but were physically unable to carry it out — you were too far away, restrained, or had no weapon — the second element of assault fails.

Assault Case Results

Case Result: Not Guilty — Aggravated Assault with a Deadly Weapon and Battery

Our client faced aggravated assault with a deadly weapon and battery charges. At trial, we challenged the State’s evidence through effective cross-examination and exposed weaknesses in the prosecution’s case. The jury returned Not Guilty on both counts.

Past results do not guarantee future outcomes.

Case Result: No Filed — Aggravated Assault (Pre-File Advocacy)

We represented a client at First Appearance Court on aggravated assault charges. Through pre-file advocacy, Rocky worked directly with the prosecutor and presented compelling reasons not to file. The State chose not to file the case — our client walked away with no charges in under 30 days.

Past results do not guarantee future outcomes.

How We Attack the Prosecution’s Case

We don’t wait for trial to start fighting. At The Brancato Law Firm, P.A., we investigate immediately — reviewing police reports, body camera footage, witness statements, and 911 calls. If there were constitutional violations during your arrest, we file motions to suppress. If the evidence does not support every element of the charge, we push for dismissal or reduction before the case ever reaches a jury.

Can Assault Charges Be Dropped in Florida?

Yes — prosecutors drop, reduce, or dismiss assault charges more often than most people realize. Here’s why: assault cases frequently come down to one person’s word against another’s. There may be no physical evidence, no injuries, and no independent witnesses. When the State cannot prove every element beyond a reasonable doubt, the case falls apart.

Common reasons prosecutors drop assault charges include: the alleged victim recants or refuses to cooperate, body camera footage contradicts the police report, the evidence does not support the “well-founded fear” element, or the defense demonstrates self-defense. We have also negotiated pre-trial diversion for clients facing assault charges, where the State dismisses the charge after the client completes certain conditions.

However, the earlier you get an attorney involved, the more options you have. Once the State formally files a case and moves toward trial, negotiating becomes harder. If police arrested you for assault and you are sitting at Orient Road Jail or Falkenburg Road Jail, call us before your first appearance at the Hillsborough County Courthouse.

Assault and Domestic Violence: What You Need to Know

When an assault charge involves a household or family member, Florida treats it as domestic violence — even if it’s a simple misdemeanor assault. Under §741.28, domestic violence includes any assault or battery between family members, household members, or people who have lived together.

This matters because domestic violence convictions carry collateral consequences beyond the criminal penalty. You lose your right to own firearms under federal law. You cannot seal or expunge the conviction. It shows up on background checks permanently. And in custody disputes, it gives the other parent powerful ammunition.

We have successfully handled domestic violence assault cases in Hillsborough County by acting quickly. In one recent case, we prepared affidavits and presented them to the intake prosecutor within 24 hours, resulting in the State filing a Notice of Termination — our client never spent a night in jail. That is the power of early intervention.

Frequently Asked Questions About Assault Charges in Florida

Questions About Assault Law

Can I be charged with assault if I never touched anyone?

Yes. Under Florida law (§784.011), assault does not require physical contact. If you made an intentional threat and the other person genuinely feared you were about to hurt them, you can be charged. Many of the assault cases we handle at The Brancato Law Firm, P.A. involve threats without any physical contact. Battery is the separate charge that requires touching.

What is the difference between simple assault and aggravated assault?

Simple assault (§784.011) is a second-degree misdemeanor carrying up to 60 days in jail. Aggravated assault (§784.021) is a third-degree felony carrying up to 5 years in prison. What separates them is whether the person used a deadly weapon or committed the assault with intent to commit a felony. The Brancato Law Firm, P.A. handles both.

Is assault a felony or misdemeanor in Florida?

It depends. Simple assault is a misdemeanor. Aggravated assault — meaning with a deadly weapon or with intent to commit a felony — is a third-degree felony. Additionally, the State enhances assault on a law enforcement officer, even without a weapon, to a first-degree misdemeanor. Tampa Criminal Defense Attorney Rocky Brancato evaluates every case to determine whether the State can actually prove the elements of the charge filed.

Questions About Defending Your Case

What should I do if I’m arrested for assault in Tampa?

Do not give a statement to police. Do not discuss the incident with anyone except your attorney. Call The Brancato Law Firm, P.A. at (813) 727-7159 as soon as possible. What you say and do in the first 24-48 hours after an arrest can determine the outcome of your case. We respond to calls 24/7 and can begin working on your defense immediately.

Can a self-defense claim beat an assault charge?

Absolutely. Florida’s Stand Your Ground law is a powerful defense in assault cases. If you reasonably believed you were in danger of harm, you had the right to threaten force to protect yourself. When you raise self-defense, the burden shifts to the State to prove beyond a reasonable doubt that you were not defending yourself. With over 150 jury trials to verdict, Rocky Brancato has extensive experience presenting self-defense cases to juries in the 13th Judicial Circuit.

Can I get my assault charge expunged in Florida?

If the State dismisses your case or a jury finds you not guilty, you may qualify for expungement. If you complete a pre-trial diversion program, you may also qualify. However, Florida law does not allow you to expunge a domestic violence conviction. This is another reason why fighting the charge early — before a conviction — is so important. Call The Brancato Law Firm, P.A. to discuss your options.

Hiring a Defense Attorney

What experience does Rocky Brancato have with assault cases?

Rocky Brancato has defended assault and aggravated assault cases for over 25 years in Hillsborough County. As a former Major Crimes Trial Attorney with the Public Defender’s Office, he handled violent crime cases daily. He later served as Chief Operations Officer, overseeing more than 100 attorneys. Rocky holds an AV Preeminent rating from Martindale-Hubbell — the highest peer-reviewed rating for legal ability and ethics — and earned selection to Super Lawyers. He also maintains perfect 10.0 ratings on both Justia and Avvo.

You Are Reading This for a Reason — Let Us Help

If you are reading this page, chances are you or someone you care about faces assault or aggravated assault in Florida. You are scared. You are wondering what happens next. You need answers from someone who has been in courtrooms defending these cases for over two decades.

We have stood in front of juries and won Not Guilty verdicts on aggravated assault charges. We know how prosecutors in Hillsborough, Pinellas, and Pasco Counties build these cases — and we know how to take them apart. Every day you wait is a day the prosecution builds its case while you lose options.

Call Tampa Criminal Defense Attorney Rocky Brancato at The Brancato Law Firm, P.A. today: (813) 727-7159. The consultation is free and confidential. We are available 24/7. We serve Hillsborough, Pinellas, and Pasco Counties.

Related Pages:

• Violent Crimes Defense in Tampa
• What Is Robbery in Florida?

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice serving clients exclusively in Hillsborough, Pinellas, and Pasco Counties. We are not affiliated with any other Brancato-named law firms.

This page is for informational purposes only and does not constitute legal advice. Each case is unique, and outcomes depend on the individual facts and circumstances involved. Past results do not guarantee future outcomes.

I’m Tampa criminal defense attorney Rocky Brancato. With more than 25 years defending serious felonies in Hillsborough County — including kidnapping cases tried to verdict — I know how aggressively prosecutors pursue these charges and how to fight back.

How Does Florida Law Define Kidnapping?

Under Florida law (§787.01), kidnapping means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against their will and without lawful authority. However, the statute also requires the State to prove you acted with one of four specific intents. In other words, confinement alone is not enough:

• To hold the person for ransom, reward, or as a shield or hostage
• To commit or help commit any felony
• To inflict bodily harm upon or terrorize the victim or another person
• To interfere with a governmental or political function

Florida Statute §787.01: The State must prove both an act of confinement or abduction and a specific criminal intent. Without proving both elements beyond a reasonable doubt, a kidnapping conviction cannot stand. This is where The Brancato Law Firm, P.A. focuses its defense.

For children under 13, the rules change. The State does not need to prove the child resisted. Instead, confinement without the consent of a parent or legal guardian is enough to satisfy the “against their will” element under §787.01(1)(b).

What Is the Difference Between Kidnapping and False Imprisonment in Florida?

Many people confuse kidnapping with false imprisonment. However, the distinction is critical because the penalties are dramatically different.

False imprisonment (§787.02) means you restrained someone against their will. Kidnapping (§787.01) requires that same restraint plus a specific criminal intent — like holding someone for ransom or confining them to commit another felony. In other words, false imprisonment is kidnapping’s lesser included offense.

This distinction matters because prosecutors frequently overcharge. At The Brancato Law Firm, P.A., we analyze whether the confinement truly supports a kidnapping charge — or whether the facts point to a lesser offense that carries far less prison time.

What Are the Penalties for Kidnapping in Florida?

Kidnapping penalties in Florida depend on the circumstances of the offense, the age of the victim, and whether a weapon was involved. Here is what you face.

Standard Kidnapping (First-Degree Felony)

Under §787.01(2), kidnapping is a first-degree felony. As a result, it carries a statutory maximum of life in prison and a fine of up to $10,000. Furthermore, because kidnapping scores as a Level 9 offense under Florida’s Criminal Punishment Code, most defendants face a minimum mandatory sentence of roughly four years in prison — even with no prior record. The judge cannot go below that floor without finding grounds for a downward departure.

Kidnapping of a Child Under 13 (Life Felony)

Warning: If you kidnap a child under 13 and commit aggravated child abuse, sexual battery, or lewd and lascivious offenses during the kidnapping, the charge jumps to a life felony under §787.01(3). A conviction means a mandatory life sentence with no possibility of parole. Florida eliminated parole — a life sentence means you die in prison.

10-20-Life Enhancement

Kidnapping is one of Florida’s enumerated offenses under the 10-20-Life law (§775.087). If you possessed a firearm during the kidnapping, you face a 10-year mandatory minimum. If you discharged the firearm, the minimum jumps to 20 years. If someone was shot or killed, the mandatory minimum is 25 years to life. Consequently, these enhancements apply on top of the kidnapping sentence itself, and the judge has no discretion to reduce them.

When Do Prosecutors Add Kidnapping Charges in Florida?

Kidnapping charges rarely stand alone. Prosecutors in the 13th Judicial Circuit and across Florida routinely add kidnapping to cases involving robbery, domestic violence, sexual battery, carjacking, and burglary. In fact, the strategy is simple — stacking charges increases leverage during plea negotiations and raises the potential sentence dramatically.

For example, in a domestic violence case, the State may argue that preventing someone from leaving a room constitutes kidnapping with intent to inflict bodily harm. In a robbery case, the State may argue that moving a store clerk to a back room constitutes kidnapping with intent to facilitate a felony. These are the kinds of overcharges we challenge every day at The Brancato Law Firm, P.A..

What Is the Faison Test — and Why Does It Matter?

The Faison test comes from the Florida Supreme Court’s decision in Faison v. State, 426 So. 2d 963 (Fla. 1983). It sets the standard for determining whether confinement during another felony counts as a separate kidnapping charge. Florida courts apply a three-part test:

1. The confinement or movement must not be slight, inconsequential, or merely incidental to the other crime.
2. The confinement must not be the kind inherent in the nature of the other crime.
3. The confinement must have independent significance — meaning it made the other crime substantially easier to commit or substantially reduced the risk of detection.

If the confinement fails any part of this test, the kidnapping charge should not stand. We use the Faison test aggressively in cases where prosecutors stack kidnapping on top of robbery, battery, or sexual battery charges. In many cases, the confinement was incidental to the underlying offense, and the kidnapping charge should never have been filed.

How We Fight Kidnapping Charges in Tampa

Because I served as Chief Operations Officer and Chief Assistant Public Defender of the Hillsborough County Public Defender’s Office — where I led and mentored over 100 attorneys — I have seen every prosecution strategy that works and every one that fails. Here is how we defend kidnapping cases at The Brancato Law Firm, P.A.:

• Challenge the specific intent. Kidnapping requires more than confinement. We investigate whether the State can actually prove you acted with one of the four statutory intents listed in §787.01.
• Apply the Faison test. If the confinement was incidental to another crime, we move to dismiss or reduce the kidnapping charge to false imprisonment.
• Attack witness credibility. Many kidnapping cases depend on a single witness. We examine inconsistencies, biases, and motives to fabricate.
• Challenge the evidence. If law enforcement violated your rights during the investigation — an illegal search, a coerced statement, a flawed lineup — we file motions to suppress that evidence.
• Negotiate from a position of strength. When full acquittal is not realistic, we leverage weaknesses in the State’s case to negotiate reduced charges or sentencing departures.

Real Case Results: Kidnapping Defense in Tampa

Not Guilty — Kidnapping and Robbery (Plant City)
Our client faced kidnapping and robbery charges. Rocky presented a strong mistaken identity defense, challenging the prosecution’s evidence at every turn. The jury returned Not Guilty on both charges.
Past results do not guarantee future outcomes.

Reduced — Kidnapping and Aggravated Battery to Misdemeanor (September 2025)
Our client was charged with kidnapping and aggravated battery for allegedly beating a fellow gang member. Rocky strategically chose not to waive speedy trial while investigating the case. The leverage gained by working within speedy trial resulted in both charges being reduced to misdemeanor battery with probation — avoiding a first-degree felony conviction entirely.
Past results do not guarantee future outcomes.

Can Kidnapping Charges Be Dropped or Reduced in Florida?

Yes — and it happens more often than most people realize. The State drops or reduces kidnapping charges for several reasons:

• Insufficient evidence of intent. If the State cannot prove one of the four required intents under §787.01, the charge cannot survive a motion for judgment of acquittal.
• Faison test failure. If the confinement was incidental to another crime, courts have reversed kidnapping convictions and reduced them to false imprisonment.
• Witness problems. When the key witness recants, contradicts their earlier statement, or refuses to cooperate, prosecutors often drop the charge rather than risk losing at trial.
• Pre-file advocacy. If you retain an attorney before the State formally files charges, we can present mitigating evidence to the intake prosecutor. In some cases, this prevents the kidnapping charge from ever being filed.

The earlier you contact The Brancato Law Firm, P.A., the more options we have to fight — or prevent — a kidnapping charge.

What Should You Do If You Are Arrested for Kidnapping in Florida?

If you or someone you love has been arrested for kidnapping and booked at Orient Road Jail or Falkenburg Road Jail, take these steps immediately:

1. Exercise your right to remain silent. Do not give a statement to law enforcement. Anything you say will be used against you.
2. Call a defense attorney before your first appearance. Your first court appearance at the Hillsborough County Courthouse happens within 24 hours of arrest. Having an attorney at that hearing can mean the difference between a reasonable bond and no bond at all.
3. Do not discuss the case with anyone. Jailhouse phone calls are recorded. Conversations with cellmates can become testimony. Only speak with your attorney.
4. Preserve evidence. Text messages, surveillance footage, and witness contacts can disappear quickly. Your attorney needs to secure this evidence before it is lost.

Frequently Asked Questions About Kidnapping in Florida

Is kidnapping a felony in Florida?

Yes. Under §787.01, kidnapping is a first-degree felony that carries up to life in prison. If the victim is a child under 13 and the offender commits certain additional acts, it becomes a life felony. The Brancato Law Firm, P.A. defends clients facing all levels of kidnapping charges in Hillsborough, Pinellas, and Pasco Counties.

What is the minimum sentence for kidnapping in Florida?

Because kidnapping scores as a Level 9 offense under Florida’s Criminal Punishment Code, most defendants face a minimum of approximately four years in prison — even with no prior criminal history. If a firearm was involved, the 10-20-Life mandatory minimums apply on top of the base sentence.

Can a parent be charged with kidnapping their own child in Florida?

Yes. The Florida Supreme Court ruled in Davila v. State that the kidnapping statute does not exempt parents. If a parent confines or abducts their own child with one of the four statutory intents — such as to terrorize the other parent or to facilitate another crime — the State can prosecute for kidnapping. However, custody disputes and parental rights create strong defense arguments that The Brancato Law Firm, P.A. can use to fight these charges.

More Questions About Kidnapping Charges

What is the difference between kidnapping and false imprisonment in Florida?

Kidnapping requires the State to prove you confined someone with a specific criminal intent — like holding them for ransom or to commit a felony. False imprisonment only requires proof that you restrained someone against their will. Because false imprisonment is a third-degree felony (up to 5 years) while kidnapping carries up to life, the distinction can mean decades of prison time.

Can kidnapping charges be reduced to a lesser offense?

Yes. Florida courts have reduced kidnapping charges to false imprisonment when the confinement was incidental to another crime under the Faison test. At The Brancato Law Firm, P.A., we use this legal standard to challenge overcharged cases and fight for reduced charges whenever the facts support it.

What defenses work against kidnapping charges in Florida?

Common defenses include lack of specific intent, the Faison incidental confinement test, consent, mistaken identity, and suppression of illegally obtained evidence. Of course, the right defense depends on the facts of your case. Tampa criminal defense attorney Rocky Brancato evaluates every angle before building your defense strategy.

Hiring a Kidnapping Defense Attorney

Why should I hire The Brancato Law Firm for a kidnapping charge?

Rocky Brancato brings more than 150 jury trials to verdict, an AV Preeminent rating from Martindale-Hubbell, and Super Lawyers recognition to every kidnapping case. As the former Chief Operations Officer of the Hillsborough County Public Defender’s Office, he managed over 100 attorneys handling the most serious felonies in the 13th Judicial Circuit — including kidnapping, robbery, and homicide.

How much does a kidnapping defense lawyer cost in Tampa?

Every case is different, and fees depend on the complexity of the charges, the evidence involved, and whether the case goes to trial. The Brancato Law Firm, P.A. offers free, confidential consultations so you can understand your options before making any financial commitment. Call (813) 727-7159 to discuss your case.

You Are Reading This for a Reason — Let Us Help

If you are facing kidnapping charges, you already know the stakes. After all, a conviction can mean life in prison. We have stood in courtrooms across Hillsborough County and won Not Guilty verdicts on kidnapping charges — and we have used strategic pressure to reduce kidnapping charges to misdemeanors when the facts allowed it. We understand the fear you are feeling right now, and we know how to fight these charges.

Every day you wait is a day the prosecution builds its case. The earlier Tampa criminal defense attorney Rocky Brancato gets involved, the more options you have — including pre-file advocacy that may prevent formal charges entirely.

Call The Brancato Law Firm, P.A. today at (813) 727-7159 for a free, confidential consultation. We are available 24/7 and serve clients throughout Hillsborough, Pinellas, and Pasco Counties.

For more about our defense strategies for serious charges, visit our Violent Crimes practice page. You can also read our guide on What Is Robbery in Florida? — robbery and kidnapping charges often appear together, and the defense strategies overlap.

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice serving clients exclusively in Hillsborough, Pinellas, and Pasco Counties. We are not affiliated with any other Brancato-named law firms.

This page is for informational purposes only and does not constitute legal advice. Each case is unique, and outcomes depend on the individual facts and circumstances involved. Past results do not guarantee future outcomes.

I’m Tampa criminal defense attorney Rocky Brancato. With more than 25 years defending criminal cases in Hillsborough County, an AV Preeminent rating from Martindale-Hubbell, Super Lawyers recognition, and more than 150 jury trials to verdict, I bring the experience that elder abuse charges demand.

How Does Florida Define Elder Abuse?

Under §825.102, Florida law defines elder abuse as the intentional infliction of physical or psychological injury upon an elderly person or disabled adult. The statute is broader than most people expect — it covers not only direct physical harm but also intentional acts that could reasonably be expected to cause injury, encouraging others to commit harmful acts, and intentionally isolating an elderly person from family members.

Florida Statute §825.102: An “elderly person” means anyone age 65 or older. A “disabled adult” means a person age 18 or older who suffers from a condition that impairs their ability to perform normal activities or protect their own rights. The statute creates three levels of offense: abuse (third-degree felony), aggravated abuse (first-degree felony), and neglect (second- or third-degree felony depending on the harm caused). At The Brancato Law Firm, P.A., we defend against all three categories.

The isolation provision under §825.102(1)(d) is particularly significant. If you intentionally restrict an elderly person’s access to family members and this could reasonably cause psychological injury, you can face felony charges — even without any physical contact. However, the statute also provides a defense: if you had reasonable cause to believe the isolation was necessary to protect the elderly person from danger, this is a complete defense to the isolation charge.

What Are the Different Levels of Elder Abuse Charges?

Florida law creates three distinct offenses under §825.102, and the penalties vary significantly:

Warning: Aggravated abuse of an elderly person or disabled adult occurs when the abuse causes great bodily harm, permanent disability, or permanent disfigurement — or when the defendant commits aggravated battery on the victim, or willfully tortures, maliciously punishes, or unlawfully cages the victim. Because aggravated abuse is a first-degree felony, it carries the same maximum sentence as many violent crimes. At The Brancato Law Firm, P.A., we fight aggressively to prevent these charges from resulting in a prison sentence.

What Is the Difference Between Abuse and Neglect?

Abuse requires an intentional act — you must deliberately inflict harm or commit an act you know could cause harm. Neglect, in contrast, involves a failure to act. Specifically, neglect occurs when a caregiver fails to provide the care, supervision, and services necessary to maintain the elderly person’s physical and mental health.

This distinction is critical because neglect charges often arise from situations where a caregiver lacked the resources, training, or support to provide adequate care — not from malicious intent. However, the statute requires only “culpable negligence” for neglect charges, which is a lower standard than the intentional conduct required for abuse. At The Brancato Law Firm, P.A., we investigate the full circumstances of the caregiving situation to challenge neglect allegations.

Neglect under §825.102(3) includes a caregiver’s failure to provide food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential. It also includes a caregiver’s failure to make a reasonable effort to protect the elderly person from abuse or exploitation by someone else. Importantly, a single incident or omission can support a neglect charge — the State does not need to show a pattern of conduct.

What Defenses Are Available for Elder Abuse Charges?

Prosecutors often bring elder abuse charges based on incomplete investigations, family disputes, or misunderstandings about the victim’s condition. Here are the defense strategies we use at The Brancato Law Firm, P.A.:

• No intentional act. For abuse charges, the State must prove the defendant acted intentionally. If the injury resulted from an accident, a fall, or a medical condition rather than intentional conduct, the abuse charge fails.
• Pre-existing medical conditions. Elderly individuals and disabled adults often have fragile health, bruise easily, and suffer injuries from normal daily activities. We retain medical experts to demonstrate that the alleged injuries are consistent with the victim’s medical history rather than abuse.
• False allegations. Elder abuse allegations frequently arise from family disputes — inheritance conflicts, custody of the elderly person, disagreements about care decisions, and personal grudges between family members. We investigate the motives of the reporting party.
• Adequate care was provided. For neglect charges, we demonstrate that the caregiver provided reasonable care given the resources available. A caregiver who lacks medical training or financial resources may not meet an idealized standard of care, but that does not constitute culpable negligence.
• Protective isolation defense. If the charge involves isolation under §825.102(1)(d), the statute specifically provides that reasonable cause to believe the isolation protected the elderly person from danger is a complete defense.

Who Can Be Charged with Elder Abuse or Neglect?

Anyone can face abuse charges under §825.102 — the statute does not limit prosecution to caregivers. Prosecutors can charge family members, friends, neighbors, and strangers with elder abuse if they intentionally harm an elderly person or disabled adult.

Neglect charges, however, apply specifically to “caregivers.” Under Florida law, a caregiver is any person who has been entrusted with or has assumed responsibility for the care of an elderly person or disabled adult. This includes family members who live with the elderly person, hired home health aides, nursing facility staff, and anyone else who has taken on a caregiving role — even informally.

Because the definition of “caregiver” is broad, individuals who never intended to assume full responsibility for an elderly person’s care sometimes face neglect charges. At The Brancato Law Firm, P.A., we challenge whether the defendant actually had a legal duty of care.

What Should You Do If You Are Accused of Elder Abuse?

If you are under investigation or facing charges under §825.102, take these steps immediately:

1. Do not speak with investigators without an attorney. Adult Protective Services (APS) and law enforcement frequently interview suspects before filing charges. Anything you say — even an attempt to explain the situation — can become evidence against you. Invoke your right to an attorney.
2. Do not contact the alleged victim. If a no-contact order is in place, any contact can result in additional charges. Even without an order, contact with the alleged victim while under investigation can appear threatening.
3. Gather medical records. If the alleged victim has pre-existing conditions, prior injuries, or a history of falls, these records are critical to the defense. Ask your attorney to subpoena the records immediately.
4. Contact a defense attorney before your first appearance. If you have been arrested and booked at Orient Road Jail or Falkenburg Road Jail, your arraignment at the Hillsborough County Courthouse happens within 24 hours. An attorney can argue for favorable bond conditions and begin building the defense immediately.

Frequently Asked Questions About Elder Abuse in Florida

Is elder abuse always a felony in Florida?

Yes — every level of elder abuse or neglect under §825.102 is a felony in Florida. Even the least serious category — abuse without great bodily harm — is a third-degree felony carrying up to 5 years in prison. This is why aggressive defense is critical from the earliest stages. The Brancato Law Firm, P.A. defends clients against all levels of elder abuse charges throughout Hillsborough, Pinellas, and Pasco Counties.

What is the difference between elder abuse and domestic violence in Florida?

Although these charges can overlap, they target different conduct. Domestic violence under §741.28 applies to violence between household members or family members regardless of age. Elder abuse under §825.102 applies specifically when the victim is 65 or older or is a disabled adult — regardless of the relationship between the parties. If the victim is both a household member and elderly, the defendant may face both charges. Tampa criminal defense attorney Rocky Brancato evaluates every charge to determine the strongest defense strategy.

Can psychological abuse lead to criminal charges?

Yes. Under §825.102(1)(a), the intentional infliction of “psychological injury” upon an elderly person or disabled adult is a third-degree felony. Furthermore, isolating an elderly person from family members in a way that could reasonably cause psychological injury also constitutes abuse. These charges do not require physical contact.

More Questions About Elder Abuse Charges

What does “culpable negligence” mean for neglect charges?

Culpable negligence is more than a simple failure or mistake — it requires a level of carelessness that shows a reckless disregard for human life or safety. However, it is a lower standard than intentional conduct. The State does not have to prove you intended to neglect the elderly person, but it must prove your failure to act went beyond ordinary negligence. At The Brancato Law Firm, P.A., we argue that the caregiver’s conduct did not rise to the level of culpable negligence.

Can elder abuse charges be dropped?

Yes. If the evidence shows the injuries resulted from a medical condition rather than abuse, if the investigation reveals the allegations were false or exaggerated, or if constitutional violations tainted the evidence, the charges can be dismissed. We pursue dismissal at every stage of the case.

Hiring a Defense Attorney

What experience does Rocky Brancato have with elder abuse cases?

Rocky Brancato has defended serious felony cases in Hillsborough County for more than 25 years, including charges involving vulnerable victims. With more than 150 jury trials to verdict, an AV Preeminent rating, and Super Lawyers recognition, The Brancato Law Firm, P.A. brings the experience that these sensitive cases demand.

How much does it cost to defend an elder abuse charge?

Fees depend on the severity of the charge, the complexity of the medical evidence, and whether the case requires expert witnesses. Because every level of elder abuse is a felony in Florida, experienced counsel is essential. The Brancato Law Firm, P.A. offers free, confidential consultations. Call (813) 727-7159 to discuss your case.

You Are Reading This for a Reason — Let Us Help

If you are facing elder abuse or neglect charges, the consequences are severe — every charge under §825.102 is a felony, and aggravated abuse carries up to 30 years in prison. However, prosecutors frequently build these cases on incomplete investigations, family disputes, or misunderstandings about the victim’s medical condition. Rocky Brancato has defended serious felony cases in Hillsborough County for more than 25 years, and we know how to challenge every element of the State’s case.

Every day you wait is a day the prosecution builds its case. The earlier Tampa criminal defense attorney Rocky Brancato gets involved, the more options you have.

Call The Brancato Law Firm, P.A. today at (813) 727-7159 for a free, confidential consultation. We are available 24/7 and serve clients throughout Hillsborough, Pinellas, and Pasco Counties.

For more about how we defend serious felony charges, visit our Violent Crimes practice page. You can also read our guide on What Is Assault and Battery in Florida? — assault and battery charges sometimes arise from the same incidents that lead to elder abuse allegations.

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice serving clients exclusively in Hillsborough, Pinellas, and Pasco Counties. We are not affiliated with any other Brancato-named law firms.

This page is for informational purposes only and does not constitute legal advice. Each case is unique, and outcomes depend on the individual facts and circumstances involved. Past results do not guarantee future outcomes.

I’m Tampa criminal defense attorney Rocky Brancato. As a former police academy instructor who taught criminal procedure and courtroom testimony, I understand exactly how law enforcement is trained to handle firearm encounters — and where officers overstep their authority. With more than 25 years defending criminal cases in Hillsborough County, an AV Preeminent rating from Martindale-Hubbell, and Super Lawyers recognition, I have defended gun charges ranging from concealed carry violations to possession of a firearm during a felony.

What Is Concealed Carry Law in Florida After Permitless Carry?

In 2023, Florida passed a permitless carry law that significantly changed §790.01. Before this law, you needed a concealed weapons license (CWL) to carry a concealed firearm legally. Now, you can carry a concealed firearm without a license — but only if you meet the same eligibility criteria that would qualify you for a CWL under §790.06.

Florida Statute §790.01 (2023 Amendment): You may carry a concealed firearm without a license if you satisfy the eligibility criteria under §790.06(2)(a)-(f) and (i)-(n), (3), and (10). However, if you do not meet these criteria, carrying a concealed firearm is still a third-degree felony — up to 5 years in prison. The State bears the burden of proving both that you are unlicensed AND that you are ineligible. This is where The Brancato Law Firm, P.A. builds the defense.

Many people misunderstand the 2023 law. Permitless carry does not mean anyone can carry a concealed firearm anywhere. You must still meet every eligibility requirement — including being at least 21 years old, having no felony convictions, no domestic violence injunctions, no drug or alcohol abuse issues, and no adjudication of mental incompetence. If you fall outside any of these criteria, carrying a concealed firearm remains a felony.

When Is Carrying a Concealed Firearm Still Illegal?

Even after the 2023 permitless carry law, carrying a concealed firearm is a third-degree felony (up to 5 years in prison) if you:

• Are under 21 years old
• Have a felony conviction on your record
• Have been adjudicated mentally incompetent or committed to a mental institution
• Are subject to a domestic violence injunction
• Have a history of drug or alcohol abuse as defined by statute
• Are a fugitive from justice or are currently under indictment

Warning: Carrying a concealed weapon (not a firearm — this includes knives, billyclubs, and other weapons defined in §790.001) without meeting eligibility criteria is a first-degree misdemeanor carrying up to one year in jail. Carrying a concealed firearm without meeting the criteria is a third-degree felony carrying up to 5 years in prison. The distinction between “weapon” and “firearm” matters significantly for the severity of the charge.

In addition, Florida still prohibits carrying firearms — concealed or openly — in certain locations regardless of eligibility. These include courthouses, police stations, jails, school grounds, polling places, government meetings, and establishments that primarily serve alcohol. At The Brancato Law Firm, P.A., we evaluate every concealed carry charge by examining exactly where the weapon was found and whether the location restriction applies.

What Is Improper Exhibition of a Firearm in Florida?

Under §790.10, it is a first-degree misdemeanor (up to one year in jail) to exhibit any dangerous weapon or firearm in a “rude, careless, angry, or threatening manner” in the presence of one or more people — unless you were acting in lawful self-defense. This statute covers a wide range of conduct, from brandishing a gun during an argument to carelessly waving a firearm at a social gathering.

The key phrase is “not in necessary self-defense.” If you displayed the weapon because you reasonably believed you were in danger, the self-defense exception applies and the charge should not stand. Because I taught self-defense law at the police academy, I know exactly how officers are trained to evaluate these situations — and where their evaluations fall short. We challenge improper exhibition charges aggressively at The Brancato Law Firm, P.A..

Improper exhibition is also a common lesser included offense in aggravated assault with a deadly weapon cases. If the State cannot prove all the elements of aggravated assault, the jury may convict on improper exhibition instead — which carries significantly lower penalties.

What Are the Penalties for Gun Crimes in Florida?

Here is how the penalties break down for the most common gun charges under Chapter 790:

Florida’s 10-20-Life law (§775.087) is particularly harsh. If you possess a firearm during certain felonies, you face a mandatory minimum 10 years. If you discharge the firearm, the mandatory minimum jumps to 20 years. If someone is injured or killed, the mandatory minimum is 25 years to life. These mandatory minimums cannot be waived by the judge. At The Brancato Law Firm, P.A., we fight to keep firearm enhancements from attaching in every eligible case.

Is Open Carry Legal in Florida?

Yes — as of September 2025, open carry is legal in Florida. In McDaniels v. State (1D2023-0533, Fla. 1st DCA 2025), the First District Court of Appeal struck down Florida’s decades-old open carry ban, ruling it violated the Second Amendment. The Attorney General declined to appeal, and the ruling now stands as the law of the state.

However, open carry does not mean you can carry a firearm everywhere. Significant restrictions remain. Firearms are still prohibited in courthouses, police stations, schools, airports, polling places, and establishments that primarily serve alcohol. Furthermore, private property owners — including grocery stores, retail stores, and restaurants — have the right to prohibit firearms on their premises. If you openly carry a firearm on property where it is prohibited, you could face arrest for armed trespass, which is a felony under Florida law. At The Brancato Law Firm, P.A., we defend clients charged with firearms violations arising from the evolving open carry landscape. Read our detailed analysis: Florida Open Carry Ruling 2025: What You Need to Know.

How We Fight Gun Crime Charges in Tampa

Because I taught criminal procedure at the police academy, I know exactly how officers are trained to conduct traffic stops, Terry stops, and searches — and I know where they cut corners. Here is how we defend gun charges at The Brancato Law Firm, P.A.:

• Challenge the search. Gun charges almost always begin with a search — a traffic stop, a pat-down, or a home search. If the search violated your Fourth Amendment rights, the firearm evidence is inadmissible.
• Challenge possession. The State must prove the firearm was yours — not just nearby. If the gun was in a shared vehicle or someone else’s property, constructive possession becomes the central issue.
• Challenge eligibility. Under the 2023 permitless carry law, the State must prove you were unlicensed AND ineligible. If the State cannot prove ineligibility, the charge fails.
• Self-defense for improper exhibition. If you displayed the firearm because you reasonably believed you were in danger, the self-defense exception under §790.10 applies.
• Fight the 10-20-Life enhancement. Proximity alone does not satisfy the statute — the firearm must be connected to the felony itself.

Case Study — Cocaine and Firearm Charges Dismissed: We represented a client charged with possession of cocaine and possession of a firearm during commission of a felony. Rocky took an early morning 24/7 call and appeared at First Appearance, arguing the client’s actions did not meet the intent of the firearm statute. The judge set low bonds. Rocky then immediately engaged the intake prosecutor at the State Attorney’s Office. Result: Both charges formally dismissed within days of the arrest. Past results do not guarantee future outcomes.

Can Gun Charges Be Dropped or Reduced?

Yes — and in many cases, the defense centers on how law enforcement found the firearm:

• Illegal search or seizure. If officers found the firearm during an unlawful traffic stop, an illegal pat-down, or a warrantless search, we file a motion to suppress the evidence. Without the firearm evidence, the case collapses.
• Lack of knowledge or possession. If you did not know the firearm was present — for instance, in a borrowed vehicle or someone else’s bag — the State cannot prove knowing possession.
• Eligibility under permitless carry. If the State cannot prove you were ineligible to carry under the 2023 law, the concealed firearm charge fails.
• Pre-file advocacy. If you contact The Brancato Law Firm, P.A. before charges are filed, we can present evidence and argument to the intake prosecutor at the State Attorney’s Office, 13th Judicial Circuit. Early intervention can prevent charges entirely.

What Should You Do After a Gun Crime Arrest?

If you or someone you love has been arrested for a gun-related offense and booked at Orient Road Jail or Falkenburg Road Jail, take these steps immediately:

1. Do not explain the firearm to police. Officers will ask why you had the gun, where you got it, and whether you have a license. Anything you say becomes evidence. Stay silent until you speak with an attorney.
2. Call a defense attorney before your first appearance. Your first hearing at the Hillsborough County Courthouse happens within 24 hours. Gun charges — especially firearm felonies and 10-20-Life cases — often carry high bonds.
3. Document the circumstances. Where exactly were you when the arrest happened? Was there a traffic stop? Did officers ask permission to search? Were there witnesses? These details are critical for challenging the legality of the search.
4. Do not consent to any search. If officers ask to search your vehicle, your home, or your person, you have the right to refuse. Refusing a search is not evidence of guilt.

Frequently Asked Questions About Gun Crimes in Florida

Do I still need a concealed weapons license in Florida?

You do not need a license to carry a concealed firearm in Florida under the 2023 permitless carry law — as long as you meet the eligibility criteria under §790.06. However, obtaining a license still offers benefits: it is recognized in other states through reciprocity agreements, and it exempts you from the waiting period when purchasing a firearm. The Brancato Law Firm, P.A. defends concealed carry charges regardless of license status.

Can a felon possess a firearm in Florida?

No. Under §790.23, a convicted felon who possesses a firearm commits a second-degree felony carrying up to 15 years in prison. This prohibition applies regardless of the permitless carry law. The only way to restore firearm rights after a felony conviction is through executive clemency from the Florida Board of Executive Clemency — and approval is rare.

What is Florida’s 10-20-Life law?

Under §775.087, if you possess a firearm during certain felonies, you face a mandatory minimum 10 years in prison. If you fire the weapon, the mandatory minimum increases to 20 years. If someone is injured or killed, the minimum is 25 years to life. These mandatory minimums cannot be reduced by the judge, which is why challenging the firearm enhancement is often the most important part of the defense.

More Questions About Gun Defense

Can I carry a gun in my car without a license?

Yes, under §790.25(5), you may securely encased or not readily accessible carry a firearm in your vehicle without a license — even without meeting the permitless carry criteria. “Securely encased” means in a glove compartment, snapped holster, gun case, or closed container. However, if the firearm is readily accessible and you do not meet the eligibility criteria, you can be charged with carrying a concealed firearm.

What if the police found my gun during an illegal search?

If officers found the firearm during an unlawful search — whether a traffic stop without reasonable suspicion, an illegal pat-down, or a warrantless home search — the firearm evidence may be suppressed. Without that evidence, the gun charge cannot be prosecuted. Tampa criminal defense attorney Rocky Brancato files suppression motions in every case where the search is questionable.

Hiring a Gun Crime Defense Attorney

How does The Brancato Law Firm handle gun cases differently?

Rocky Brancato’s background as a former police academy instructor — where he taught criminal procedure and courtroom testimony — gives him a unique advantage in gun cases. He knows exactly how officers are trained to conduct stops and searches, and he knows where they deviate from that training. Combined with more than 150 jury trials to verdict and an AV Preeminent rating, The Brancato Law Firm, P.A. brings the experience needed to challenge gun charges effectively.

How much does a gun crime defense lawyer cost in Tampa?

Fees depend on the severity of the charge — a misdemeanor improper exhibition case is different from a 10-20-Life enhancement. The Brancato Law Firm, P.A. offers free, confidential consultations. Call (813) 727-7159 to discuss your case.

You Are Reading This for a Reason — Let Us Help

If you are facing gun charges in Florida, the consequences can be severe — especially if a 10-20-Life mandatory minimum is on the table. We have spent more than 25 years defending weapons charges in Hillsborough County, and we know how to challenge illegal searches, fight firearm enhancements, and protect your Second Amendment rights when prosecutors overreach.

Every day you wait is a day the prosecution builds its case. The earlier Tampa criminal defense attorney Rocky Brancato gets involved, the more options you have — including suppression motions and pre-file advocacy that may prevent charges entirely.

Call The Brancato Law Firm, P.A. today at (813) 727-7159 for a free, confidential consultation. We are available 24/7 and serve clients throughout Hillsborough, Pinellas, and Pasco Counties.

For more about how we defend serious criminal charges, visit our Violent Crimes practice page. You can also read our guide on What Is Robbery in Florida? — gun charges are frequently stacked alongside robbery, and the defense strategies often overlap.

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice serving clients exclusively in Hillsborough, Pinellas, and Pasco Counties. We are not affiliated with any other Brancato-named law firms.

This page is for informational purposes only and does not constitute legal advice. Each case is unique, and outcomes depend on the individual facts and circumstances involved. Past results do not guarantee future outcomes.