West Palm Beach Assault & Battery Lawyer

Assault and Aggravated Assault Charges in Florida

In Florida, the crime of assault is defined by the state statute as follows: Assault is:

an intentional threat by word or act that seeks to physically harm another, coupled with an apparent ability to do so, which creates a well-founded fear in such other person that such violence is imminent.

Assault does not require an intent to injure. It is sufficient that a potential victim of an assault merely has reason to fear an immediate attack.

However, not all threats of violence can be considered to be criminal assault. For example, if someone yells at another person who is a great distance away, something to the effect of, “I’m going to get you,” and the person being yelled at is not fearful of an imminent act of violence, a charge of assault is unlikely. However, if that same person is confronting another at close quarters, and has an ability to carry out the threat, causing the recipient to fear that an act of violence is possible, indeed is about to happen, a charge of assault can be levied.

The crime of assault differs from the crime of battery. Battery only takes place when a defendant makes physical contact with a victim. To prove a battery case, a prosecutor must show that the defendant intentionally touched or struck the victim. Also, the physical contact must have been against the victim’s will and done without the victim’s consent.

Simple Assault

Simple assault is categorized as a second degree misdemeanor. It carries a sentence of imprisonment for up to 60 days and a fine that cannot exceed $500. However, because of the highly subjective nature of the offense, simple assault is not always an easy charge to prove.

In order to successfully prosecute someone for the charge of simple assault, it must be shown conclusively, and beyond reasonable doubt, that there was an overt intent to threaten the alleged victim; that there was an apparent ability to carry out the alleged threat; that the alleged victim had a “well-founded” fear of imminent violence; that the alleged victim didn’t provoke the threat; and that the alleged perpetrator wasn’t merely trying to defend himself or another. In addition, the word or act constituting the threat must be “willful and knowing” on the part of the defendant. An off-hand remark to harm another, without an actual intent to carry out the threat, is not enough to produce a conviction for assault.

Aggravated Assault

Aggravated assault is “an assault with a deadly weapon without intent to kill; or with an intent to commit a felony.” Aggravated assault is categorized as a third degree felony, which can result in a prison sentence and/or probation of up to five years and a fine of up to $5,000. In addition, a person found guilty of aggravated assault in Florida may be required to pay restitution to a victim for any expenses resulting from the crime, such as the cost of medical treatment or counseling.

In some cases, the crime of aggravated assault can carry enhance penalties, based upon certain factors, such as the characteristics of the alleged victim or the type of weapon used during the commission of the crime. For example, Aggravated Assault with a Firearm carries a minimum mandatory sentence of three years in prison. And, depending on the type of firearm used, or if it was discharged, or if someone was shot, the minimum prison sentence can be increased to up to 25 years.

Special Victims

In addition, aggravated assault against certain victims can be prosecuted as a second degree felony carrying a maximum sentence of 15 years rather than five. The following is a partial list of “special victims” if the assault occurs while the victim is engaged in the performance of his or her professional duties:

• A law enforcement officer
• A firefighter
• An emergency medical care provider
• A public transport employee
• A parking enforcement officer
• A licensed security officer
• An employee of at a detention or commitment facility for sexually violent offenders
• A code inspector

The following are also considered to be “special victims” and need not be engaged in the performance of any professional duties at the time of the assault offense:

• An employee or investigator for the Florida Department of Children and Family Services
• A person over the age of 65
• A sports official during or immediately after a sporting event
• A school employee
• An elected official
• A visitor or detainee in a jail or correctional facility.

Finally, if the victim of an aggravated assault is a law enforcement officer, corrections officer, state’s attorney or a judge, and the crime is committed because of the person’s employment status or while the victim is performing duties of employment, the court may not allow the offender to serve probation in lieu of prison or otherwise defer or suspend the sentence.

Frequently asked questions about assault and battery charges in Florida

What is the difference between assault and battery in Florida? 

In Florida, assault is a threat and battery is contact. Assault is an intentional threat, by word or act, to do violence, with the apparent ability to carry it out, that puts the other person in fear (Fla. Stat. 784.011). No touching is required. Battery is intentionally touching or striking another person against their will, or intentionally causing bodily harm (Fla. Stat. 784.03). No injury is required. Simple assault is a second degree misdemeanor with up to 60 days in jail; simple battery is a first degree misdemeanor with up to 1 year.

Is simple battery a felony in Florida? 

Simple battery is not a felony in Florida the first time; it is a first degree misdemeanor. It becomes felony battery, a third degree felony with up to 5 years, if you have a prior battery conviction, including one that ended in a withhold of adjudication (Fla. Stat. 784.03(2)), or if the battery causes great bodily harm (Fla. Stat. 784.041). Battery on a law enforcement officer, a person 65 or older, a pregnant woman, or school staff is reclassified one degree higher, so a misdemeanor becomes a felony based on who the other person was, even if the contact was minor.

What makes an assault or battery "aggravated" in Florida? 

An assault or battery becomes "aggravated" in Florida when a weapon or a serious injury is involved. Aggravated assault is an assault with a deadly weapon, or with the intent to commit a felony, and is a third degree felony with up to 5 years (Fla. Stat. 784.021). Aggravated battery is a battery that causes great bodily harm, permanent disability or disfigurement, uses a deadly weapon, or is committed on a woman the accused knew was pregnant, and is a second degree felony with up to 15 years (Fla. Stat. 784.045). Whether an object was a "deadly weapon" and whether an injury was "great bodily harm" are fact questions a jury decides, and the State often charges high on both.

Can I claim self defense or Stand Your Ground in Florida? 

You can claim self defense under Florida's Stand Your Ground law if you were not the aggressor and reasonably believed force was necessary to stop an attack. The law (Fla. Stat. 776.012, 776.032) removes any duty to retreat and gives immunity from prosecution, not just a defense at trial. Immunity is decided at a pretrial hearing, and since 2017 the State has to prove by clear and convincing evidence that you were not acting in self defense. Winning that hearing ends the case. It requires evidence, so photographs of your own injuries, witnesses and any video need to be preserved immediately.

Will I go to jail for a first battery charge in West Palm Beach? 

Jail is unusual for a first battery charge in West Palm Beach when there is no serious injury and no record. Simple battery carries no mandatory jail, and a first offense commonly ends in probation, an anger management course, no contact with the other person, and restitution for any medical bills. Florida's pretrial intervention statute allows a first offender charged with a misdemeanor to complete a program and have the charge dismissed, with the State Attorney's and the victim's consent (Fla. Stat. 948.08). Jail becomes likely with an injury, a weapon, a prior record, or a protected victim such as an officer or an elderly person. If the other person is a family or household member, the case is charged as domestic violence and follows different rules.

Is there a statute of limitations on assault or battery in Florida? 

Yes, Florida has a statute of limitations on assault and battery. Simple assault, a second degree misdemeanor, must be charged within 1 year. Simple battery, a first degree misdemeanor, within 2 years. Aggravated assault and aggravated battery, as felonies, within 3 years (Fla. Stat. 775.15). The clock starts on the date of the incident and pauses while the accused is continuously absent from the state. Fights reported months later do happen, and the dates should be checked in every case.

Can a battery charge be sealed if I get a withhold of adjudication? 

A simple battery charge with a withhold of adjudication can be sealed in Florida if you have no other convictions and have never sealed a record before. Aggravated assault, aggravated battery, and felony battery are on Florida's list of offenses that cannot be sealed after a plea or finding of guilt, even with a withhold (Fla. Stat. 943.0584). Battery charged as domestic violence is also excluded. If the charge is dismissed, including after diversion, it can be expunged. This is why the label on the charge matters as much as the sentence.

Legal Assistance for Assault Charges

If you or a family member been accused or arrested of an Assault, Battery or other Violent Crime in the West Palm beach or the greater Palm Beach County area, contact Michelle Suskauer at The Suskauer Law Firm P.A.. We understand what is at stake and know how to protect your rights. Our legal team will explain the penalties you may be facing and analyze your case for possible defenses. Our top-rated criminal defense attorneys will personally work on your case, and have the necessary experience to help you plan and carry out your defense.

Call us for a free consultation and allow us to review your case. When facing criminal charges it is important to have a compassionate, and aggressive attorney at your side. Contact us today for a free consultation.