Assault is a serious crime in the state of Florida. It carries stiff penalties, and being wrongfully accused of this offense can have devastating consequences on your life. If you are a resident of Florida and are fighting assault charges, then Arnold Law can help you in your legal battles.
What is Assault?
Assault is a violent crime delineated under Florida Statute Sections 784.011 and 784.021. In the most general sense, it is an act in which one person (the defendant) commits an actionable wrong against another person (the victim). The offense in question does not necessarily have to include any physical contact - the mere act of threatening to do harm is enough to merit an assault charge. The crime of assault results in the victim fearing for their safety and believing the threat of violence is imminent.
What Is Simple Assault?
The Florida penal code differentiates between simple assault (charged as a misdemeanor) and aggravated assault (charged as a felony). How the district attorney decides to file these charges will depend on a variety of factors, including the precise circumstances of the incident, the strength of the evidence, and whether or not the defendant has a prior history of violence or criminal behavior.
Simple assault is the most basic form of the offense delineated under Florida Statute Section 784.011(2) and is considered to be a second-degree misdemeanor. The prosecution must prove three (3) basic elements to secure a simple assault conviction:
- The defendant unlawfully and intentionally made threats of physical violence against the victim, either verbally or by physical conduct.
- When the threats were being made, the defendant had the ability and physical capacity to carry out said threats.
- The act of threatening the victim made them reasonably fear for their safety and believe that violence was imminent.
A conviction of simple assault can result in a sixty (60) day prison term, six (6) months of probation, and/or a maximum fine of five hundred dollars ($500). If the defendant has a prior history of violence or criminal behavior, the judge may impose stricter penalties.
What Is Aggravated Assault?
Aggravated assault is the more severe form of the offense. As delineated under Florida Statute Section 784.021, it is a third-degree felony and carries stiffer penalties than simple assault. Most cases of aggravated assault include the defendant’s use of some kind of deadly weapon (most commonly a firearm).
In order to secure an aggravated assault conviction, the prosecution will have to establish the following:
- The defendant verbally or gesturally threatened the victim in an intentional and unlawful manner.
- At the time of the threat, the defendant had the ability and physical capacity to carry out said threat.
- Making the threat caused the victim to have a reasonable fear for their safety and to believe that violence was imminent.
- The defendant used a deadly weapon in such a way as to create fear of “great bodily harm” and/or death in the victim.
- The act of assault was made with either a deadly weapon or with explicit criminal intent to commit a felonious act.
The penalties for an aggravated assault conviction are severe, including up to five (5) years in a correctional facility, five (5) years of probation, and up to a five-thousand dollar ($5,000) fine. If the defendant has a history of violence or criminality, then the judge has a certain amount of leeway to impose even harsher penalties. Furthermore, if there are other aggravating factors (a firearm was discharged during the commission of the crime, for example), then the prison sentence can increase to up to twenty (20) years.
The state of Florida takes the crime of aggravated assault very seriously and it will always be prosecuted vigorously by the district attorney in question. Even first-time offenders face the very real possibility of doing prison time unless they retain a skilled criminal defense attorney to present a comprehensive and effective legal defense.
If the act of assault was committed against multiple victims in a single incident, then each person victimized will result in a separate aggravated assault charge. In other words, if the defendant allegedly drove their car into a group of four (4) victims at one (1) time, then they will face four (4) separate counts of aggravated assault.
What Is The Difference Between Simple and Aggravated Assault?
The crimes of simple and aggravated assault are essentially the same with the exception of these two (2) parameters:
- The use of a deadly weapon (such as a firearm) during the commission of the aggravated assault.
- The presence of explicit criminal intent in the commission of the felonious act of aggravated assault.
Under Florida law, there are any number of objects that can be considered a “deadly weapon” in the commission of the crime. Formally, a deadly weapon is an object that is used and/or threatened to be used in such a way that it will likely result in death or “great bodily harm”. According to this definition, there are a variety of objects that can fit this description, including guns, knives, batons, sticks, bricks, beer bottles, or even cars. Florida law is especially broad in its determination of what constitutes a deadly weapon, so it will be up to the district attorney to determine whether or not a given object is a deadly weapon.
Furthermore, determining whether or not an injury is considered to be “great bodily harm” is a crucial factor in differentiating between simple and aggravated assault. This is a frequent enhancement in Florida criminal law and it is explicitly defined as any injury that is substantial, disabling, or significant. Common examples of injuries that constitute great bodily harm are broken bones or any injury that results in significant blood loss or unconsciousness. An injury that could be considered mild or moderate would not result in the great bodily harm enhancement.
The explicit criminal intent to commit a felonious act usually applies if the defendant committed the aggravated assault in the course of committing some other crime, particularly a violent one. This frequently includes robbery, burglary, rape, and/or murder. In order for the prosecution to charge the defendant with aggravated assault, the crux of their legal argument must be that they had explicit criminal intent to commit this felonious act. As in any criminal case, this must be proven “beyond a reasonable doubt” and the prosecution can use either circumstantial or physical evidence as well as eyewitness testimony.
The district attorney prosecuting the case will have a tremendous amount of discretion in determining whether to pursue the case as a misdemeanor (simple assault) or felony (aggravated assault). However, it is almost certain they will pursue the most serious charge, especially if they take into account the precise details of the case. If the defendant has a history of violence or criminal behavior, then it is virtually certain the district attorney will try to pursue the case as a felony. They will generally try to include other charges as well, depending on the evidence and circumstances.
Assault and Domestic Violence
As delineated under Florida Statute Section 741.28, “domestic violence” includes all forms of simple or aggravated assault committed by the defendant against any person with whom they have “a close relationship.” This can also be referred to as a “domestic relationship” and includes a:
- Spouse or former spouse
- Domestic partner or former domestic partner
- Fiancée or former fiancée
- Person related by blood or marriage
- Group of people living together as a family
- Co-parent of their child or children
- Any person with whom the defendant was formerly or currently intimate with (such as a girlfriend or boyfriend)
In other words, domestic violence is a kind of assault that is allegedly perpetrated against a victim who is intimately known to the defendant. The district attorney will treat it like any other assault charge, except there will be a “domestic violence” enhancement that may result in additional penalties.
Under Florida law, a conviction of domestic assault is considered to be a first-degree misdemeanor with penalties that include up to one (1) year in jail, twelve (12) months of probation, and a one-thousand dollar ($1,000) fine. Under Chapter 741 of the Florida Statutes, the fact it is a “domestic” charge may also result in a twenty-six (26) week Batterer’s Intervention Program (also known as BIP), additional community service hours, loss of the right to a concealed carry firearm, and the application of a restraining order.
It should be noted that in recent years, there has been a statewide push to take charges of domestic violence much more seriously in Florida. If the defendant allegedly committed the assault in the general context of domestic violence, then they will almost certainly be facing these additional penalties. There is also a greater stigma attached to domestic violence convictions as opposed to a regular assault case.
Other Charges Related to Assault
The criminal charge of battery is so frequently associated with assault that there is a common misconception that they are the same crime. Though they are related, they are fundamentally different and require different legal strategies. Remember that assault is an intentional and authentic threat to another person’s safety that results in fear that violence was imminent. Since no physical contact needs to be made in order for an assault charge to be filed, many defendants end up being confused as to why they are facing an assault charge if they never touched the other party.
Battery, on the other hand, is most clearly understood as the physical completion of an assault. In other words, assault is the threat of violence while battery is non-consensual and intentional physical contact. Much like assault, battery can also be a misdemeanor (simple battery) or a felony (aggravated battery).
Other charges related to assault include:
- Assault/Battery on the Elderly - Florida Statute Section 784.08(2) - This is any form of assault committed against a victim who is sixty-five (65) years or older.
- Sexual assault/battery - Florida Statute Section 794.011.
- Simple battery - Florida Statute Section 784.03
- Aggravated battery - Florida Statute Section 784.045
- Harassment - Florida State Statute 784.048
- Written threats - Florida State Statute 836.10
Please note that unlike other states, any assault committed with a weapon is automatically considered to be aggravated assault in Florida. Whereas other jurisdictions may have charges like “assault with a deadly weapon” or “vehicular assault”, in Florida these would both qualify as “aggravated assault.”
What Does The Prosecution Have to Prove?
In the process of a criminal assault trial, the prosecutor must prove the defendant had criminal intent. This is a legal concept meaning the perpetrator intended to do something wrong or unlawful and it is the state of mind necessary in order to commit an illegal act.
This criminal intent must include the defendant’s intention to threaten the victim, cause them to be fearful, or commit a violent act. The prosecutor will also be required to demonstrate that the perpetrator carried out the threat verbally, gesturally, or with some other intimidating action. It must also be proven that the defendant had the ability to actually carry out the threat and that the criminal intent behind the act resulted in the victim fearing some imminent harm.
In order to differentiate between simple and aggravated assault, the prosecution will also have to prove the defendant had a deadly weapon they used in a threatening manner. Furthermore, they will also have to prove the assault was committed in conjunction with an explicit criminal intent to commit some other felonious act, such as rape, burglary, or murder.
Under Florida law, it is immaterial if the defendant actually intended to carry out their threats against the victim; it is merely sufficient that they made such threats.
How A Violent Felony Conviction Could Affect You
If you are found guilty of the assault charge, then you will have a violent felony on your criminal record. This information shows up in any kind of basic background check, and it will likely result in you:
- Losing your job and/or professional license (including a medical or legal license).
- Becoming ineligible for student loans and/or various educational opportunities.
- Losing certain parental rights, including child custody or visitation.
- Being unable to secure permanent employment or any kind of job that requires public interface.
- Being unable to secure a rental lease for certain kinds of housing.
- Potentially losing the right to vote.
- Being unable to purchase and/or own a firearm.
- Being unable to serve on a jury.
Living with such a conviction on your record will result in adverse consequences that can stretch far beyond just the initial prison sentence, probationary period, or restitution. Many felons report such a drastic change to their lives and livelihoods that they find it nearly impossible to resume an ordinary life following their conviction.
In order to avoid these tragic contingencies, it is absolutely vital you retain a criminal defense firm that knows how to handle these types of cases. Florida criminal law is complex, and there are a number of factors that differentiate between simple and aggravated assault.
Furthermore, the state of Florida has a tradition of being “tough on crime.” Local district attorneys will pursue assault cases with the full range of their office’s resources and will always try to impose the harshest charges possible. Do not to try to fight this alone. Your best option is to hire a criminal defense attorney who can fashion a defense tailor-made for your particular case.
Self-Defense and the “Stand Your Ground Law”
A common defense against an assault charge is self-defense. Under common law in the United States, any person is legally justified to use non-lethal force to defend themselves or someone else. This use of force is allowed if the person reasonably believes this form of conduct is necessary to counter another person’s use of imminent or unlawful threats. If this initial use of force was insufficient to counter these threats, then United States common law has a minimum standard of retreat in order to remove one’s self from the imminent threat.
However, Florida law does not require you to retreat from an oncoming threat. This is commonly known as the “Stand Your Ground” law and was enacted by the Florida Legislature in 2005 with Florida Statutes 776.012 and 776.013. This law expands upon the parameters set down by common law self-defense by:
- Eliminating the “duty of retreat” that is imposed by United States common law.
- Allowing for the use of force in a person’s home, dwelling, vehicle, or place of business (“the castle doctrine”).
- Offering immunity from prosecution for any person who uses assaultive force within the limits of the “Stand Your Ground” law.
In other words, Florida has a widely expanded application of self-defense when compared to other states. Under “the castle doctrine” portion of the law, there is absolutely no legal duty to retreat and Floridians may use substantial force to neutralize any oncoming threat.
This means your defense attorney may very well craft a defense for you that falls under this “Stand Your Ground” law. This is substantially easier to do in the state of Florida than elsewhere, precisely because of the expanded self-defense rights permitted under this law. You may be able to successfully argue that you were forced to resort to assaultive force in order to fight off an imminent threat coming from the other party and that, in essence, you were the victim and they were the aggressor.
This same defense can be applied if you used force in “defense of others,” meaning you resorted to the use of assaultive force in order to neutralize an oncoming threat that was directed at another person. This other person does not necessarily need to be someone you know.
Defense of Property
Florida law allows for you to defend your property with the “justifiable use of non-deadly force.” Unlike “Stand Your Ground” and “the castle doctrine,” defending personal property is not justifiable with deadly force. However, if you have to resort to a forcible or assaultive act to preserve or protect rights in personal or real property, then you are protected under Florida law.
Using assaultive force in the defense of property is justifiable if the three following parameters are followed:
- The other party was either trespassing on or unlawfully interfering with your personal property or land (otherwise known as real property).
- The personal or real property was in your lawful possession or in the possession of someone in your immediate household or to whom you had a legal duty to protect.
- You reasonably believed your use of assaultive force was necessary to terminate or prevent the other person’s wrongful behavior.
If you have been charged with simple or aggravated assault because you were defending your or your family’s personal or real property, then you are protected under Florida law. Retaining a criminal defense attorney can help you make this legal argument in court and protect you from unfair legal repercussions for your lawful actions in defending the property in question.
Other Defenses To Assault Charges
In addition to self-defense and defense of property, there are a number of other defense strategies your legal team can use in court, including:
- No intention of threatening alleged victim - Remember, the prosecutor must prove there was criminal intent in the commission of the assault in order to secure the conviction. Your defense could argue that criminal intent was substantially lacking at the time of the alleged crime.
- Inability to carry out the actual threat - Both forms of assault require the defendant to have the ability to actually carry out the threat. Your attorney could argue you lacked this ability, thereby making the alleged assault just “empty threats.”
- The threat was not imminent - This is a caveat that must be met in order to secure an assault conviction. If your defense argues the threat of violence was so vague as to not be imminent, then the alleged assault was just another form of “empty threats.”
Furthermore, your attorney could also argue on factual grounds. They could claim the allegations are false and the alleged victim had ulterior motives for accusing you of assault, including retribution, revenge, monetary gain, or pettiness.
Find A Criminal Defense Attorney Near Me
Being accused of a crime like assault is a serious matter. Beyond just the prison term, probation, and restitution, your life may be permanently impacted if you are faced with an assault conviction. It is crucial you enlist the services of an experienced and knowledgeable criminal defense attorney who can help you fight these bogus charges and clear your good name. Arnold Law has extensive experience defending clients all over the state of Florida. Call our criminal attorney at 904-264-3627 and schedule your complimentary consultation today.