Although the terms assault and battery are oftentimes used interchangeably, it’s important to establish that both are independent and distinct crimes. While a battery requires an intentional touching or contact with the victim’s body—or something closely related to the victim’s body—contrarily, an assault does not require any contact whatsoever. If the perpetrator intentionally threatens violence towards the victim, and the defendant has the apparent ability to carry out said threat and creates a well-founded fear in the victim that violence is imminent, then that person could be convicted of assault. Generally, assault is considered a second degree misdemeanor; however, it can be charged as a felony in certain circumstances—further explained in the subsequent paragraphs. Therefore, it’s very important to do your research when deciding to hire a law firm, as these charges can be significant.
I. Simple Assault
Simple assault is governed by Florida Statute 784.011. It is legally defined as “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. To break down Florida’s assault statute, the State must prove three (3) independent elements beyond a reasonable doubt: (1) the perpetrator intentionally and unlawfully threatened, by word or act, to do violence to the victim; (2) when the threat was made, the perpetrator had the apparent ability to carry out said threat; and (3) the victim reasonably feared that violence was about to occur. To reiterate, in the state of Florida, neither physical contact nor injury is required to commit an assault. Let’s take a closer look at the elements.
In order to satisfy the first element—the intent element—the defendant must intend to do an act that is substantially certain to cause the victim a well-founded fear of imminent violence. It does not matter whether the perpetrator acted in jest or whether the action was a prank. The crime is satisfied as soon as the defendant intentionally incites reasonable fear in the victim from his or her actions and has the immediate ability to do so. Further, the word or act creating the threat must be willful and knowing. It’s noteworthy to expand on the fact that words alone are insufficient to commit an assault. Thus, there must also be an overt act making the victim’s fears reasonable.
Example of words + overt act: “I am going to shoot you,” while pulling out a gun and pointing it at the victim. This would constitute an aggravated assault.
Example of words + no over act: “I am going to shoot you,” while standing idle. This would not constitute an assault because there was no overt act to make the victim’s fears of imminent violence reasonable.
As previously mentioned, the defendant must also have the apparent ability to carry out the threat of violence. Therefore, if the accused is in hand cuffs and already apprehended by law enforcement when he makes the threat, or the alleged victim is not in the immediate vicinity when he makes a threat of violence, an assault does not occur. If circumstances prevent the defendant from imminently carrying out the word or act, the defendant does not commit the crime of assault. Thus, imminence, or actions or words that are forthcoming or impending, is required in every assault prosecution in Florida.
It’s noteworthy to point out that a person can be charged with multiple counts of assault from just a single criminal incident. For example, if the perpetrator drives his vehicle in the direction of two pedestrians standing on a sidewalk, intending to scare them, he or she can be charged with two counts of aggravated assault.
Under Florida Statute 784.011, simple assault is classified as a second degree misdemeanor, punishable by up to 60 days in jail, six months of probation, and a $500 fine, among other sanctions the Court may impose. However, penalties may be greater depending on the unique facts of the case.
II. Aggravated Assault
In the state of Florida, an assault may be enhanced if the circumstances include a deadly weapon or if an assault is committed during the commission of another felony. Under these circumstances, your misdemeanor assault offense can be upgraded to a third degree felony, punishable by up to five years in prison, five years of probation, and a $5,000 fine, among other sanctions. This may include restitution to a victim for any expenses stemming from the crime—e.g. medical treatment and therapy. If a firearm is used when the defendant commits an assault, there is a three-year mandatory minimum sentence—if ultimately convicted. This means that the Court must impose, at minimum, a three-year prison sentence—regardless of a person’s lack of criminal record. NOTE: this does not apply to some other weapons used, such as knives. Additionally, it’s noteworthy to highlight that Florida’s 10-20-Life law is applicable if a firearm is used in the commission of the assault. To expand on Florida’s 10-20-Life law, if a firearm is possessed, the Court must impose a minimum of 10-years imprisonment; if a firearm is discharged during a criminal episode, the Court must impose a mandatory minimum of 20-years imprisonment; lastly, if a firearm is discharged and death or great bodily injury results, it’s a minimum of 25-years imprisonment. As you can see, your assault charge could be enhanced exponentially depending on the facts and circumstances of the case.
A. Aggravated Assault with a Deadly Weapon
A person charged with aggravated assault with a deadly weapon—as you probably already figured out—involves an assault with a weapon that’s considered deadly. Under Florida law, a deadly weapon is one that is used—or threatened to be used—in a way that is likely to produce death or serious bodily injury. However, under Florida law, a deadly weapon can be rather broad. It can range anywhere from a pocket knife, a cracked glass bottle, or even a motor vehicle, among various other examples. It’s important to take note of the fact that merely having one of these objects on your person, when another is assaulted, does not mean a person has committed an aggravated assault with a deadly weapon. The accused must actually brandish the weapon—or do some overt act—when they are threatening violence against another. Let’s take a look at some examples:
Example of aggravated assault with a deadly weapon: Michael, angry at Lola, pulls out a pocket knife from his pocket, waves it around in the air, and threatens to kill Lola. Lola, who is standing a foot away from Michael, begins running in the other direction—terrified.
Example of what is not an aggravated assault with a deadly weapon: Michael threatens to kill Lola, who is standing a foot away. Lola begins running in the other direction. Unbeknownst to Lola, Michael had a pocket knife in his pocket.
Aggravated assault with a deadly weapon is a third degree felony and is considered a very serious charge. A person convicted of this offense can face up to five years in prison, five years of probation, and a $5,000 fine, among other sanctions. Further, if a firearm is discharged and the defendant is ultimately convicted, the court must impose a mandatory minimum of 20-years imprisonment—Florida’s 10-20-Life law.
Further, unlike other crimes, a person who pleas to this charge will have a permanent criminal record—even as a first time offender. Consequently, an individual will not be able to clean their record through sealing or expungement. Because of this fact, it’s very important to choose an aggressive law firm that will attack the case from all angles to work to get the charges ultimately dropped.
B. Aggravated Assault with Intent to Commit a Felony
An alternative way a person can commit an aggravated assault is essentially by committing a simply assault with an additional element of having a fully formed conscious intent to commit a felony. As you can imagine, the additional element of having the intent to commit a felony is rather broad, as it can include numerous felony crimes. Some felonies include, but are not limited to, burglary, robbery, rape, kidnapping, among others. Committing an aggravated assault in this manner is a third degree felony, carrying severe consequences.
C. Special Victims
If the assaulted victim falls into a special category and said person is acting in their official capacity when assaulted, then the accused can be charged with a second degree felony, punishable by up to 15 years in prison, 15 years of probation, among other sanctions. The following are considered special victims: police officers, firefighters, licensed security officers, emergency medical personnel, public transportation employees, among others. NOTE: those that fall under the “special victim” category need to be engaged in the performance of his or her professional duties. Therefore, just because they hold one of the aforementioned job titles does not automatically place them in this special category of victims.
Other individuals that fall under this category are persons older than 65 years of old, sports officials participating in their duties during or immediately after the event, school employees (if the accused knew or had reason to know of the victim’s employment status), visitor or detainee in a jail, among other victims.
The Schisani Law Firm, P.A. has fought for and defended many clients with assault allegations against them. Below are some of the various defenses our law firm has employed to get positive results for our clients:
- Self defense;
- Defense of others;
- Defense of property;
- Conditional threats;
- Stand your ground;
- Lack of intent to threaten the victim;
- No overt act in furtherance of the threat;
- Threat was not imminent;
- Lack of present apparent ability to carry out the threat;
- Victim’s fear was unreasonable;
- Pre-trial and trial defenses, among other defenses.
The Schisani Law Firm, P.A. is ready to fight for you! If you have any questions or wish to set up a consultation, please contact our law office at 239-248-7630. Alternatively, we can be reached via e-mail at [email protected] or through the “Contact” tab.