Assault and Battery

In Florida, there is a difference between assault and battery – they are two separate and distinct crimes and you can be charged with either or both.  An assault is where you threaten to do violence to someone and that threat puts that person in fear.  A battery is simply touching someone against his or her will OR causing bodily harm to someone.  You do not have to actually hurt someone to be convicted of battery.  An example of the difference is say, for example, you sneak up on someone and slap them in the back of the head.  That’s a battery whether you hurt them or not – but it’s not an assault if they didn’t see you coming and were not afraid of getting hit.

Aggravators to Assault and Battery

Both assault and battery are what are considered enhanceable offenses.  Depending on how you commit the crime, it can be filed as a misdemeanor or a felony.  For example, aggravated assault is where you commit assault but do so with a deadly weapon (such as a knife).  If that is the case, the crime moves from a 2nd degree misdemeanor to a 3rd degree felony, which exposes you to a maximum 5 years in prison.  And if you get convicted of aggravated assault with a firearm, that crime requires 3 years minimum mandatory in prison!

Misdemeanor battery can also be increased to a felony several ways; by strangulation, aggravated battery, felony battery, or committing a battery on a law enforcement officer.  The crime of battery is subjective.  In other words, if defendant A hits victim with X amount of force and the person does not suffer a severe injury because of it, it is just a simple misdemeanor battery.  However, if defendant B hits victim with the same amount of force but his victim suffers severe injury, it is a felony battery.  This is commonly referred to as the eggshell skull theory – you take your victim as you find them.  It does not seem fair to punish the second defendant for the same conduct, does it?  Nevertheless, that is the law.

Assault

An assault in Florida is when you threaten (either by word or by act) to do violence to someone.  At the time of the threat, you must have the ability to carry out the threat.  Additionally, your threat must create a well-founded fear that violence is about to take place.

Often times, the only evidence against you in these types of cases is the word (or testimony) of the other person (or victim).  In other words, someone calls 911 and says you assaulted them.  In a case like that, the strength of the evidence will depend on the credibility of the witness.  If there are multiple witnesses saying the same thing or video of the assault, the evidence is obviously much stronger.  Witnesses and video can work just as much for you as it can against you.

Crime Level: 2nd degree misdemeanor

Most likely outcome*: County probation, anger management class, no contact with victim, fine, court costs and costs of prosecution.

Maximum Penalties: 60 days in jail or 6 months of probation; $500 fine.

Possible Diversion: Yes, with victim approval.

Defenses: Consent, Self-Defense, Threat Not Real, False Accusation

Related Offenses: Aggravated Assault, Aggravated Assault with a Firearm

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.

Aggravated Assault

Aggravated assault is just like a simple assault but the State must additionally prove that you committed the assault with a deadly weapon OR with the intent to commit a crime.

Like in simple assault, the only evidence against you in these types of cases is usually the word (or testimony) of the other person (or victim).  In other words, someone calls 911 and says you assaulted them.  In a case like that, the strength of the evidence will depend almost entirely on the credibility of the witness.  If there are multiple witnesses saying the same thing or video of the aggravated assault, the evidence is obviously much stronger.  Witnesses and video can work just as much for you as it can against you.  Except here, the stakes are much higher.

Crime Level: 3rd degree felony

Most likely outcome*: Felony probation, anger management class, community service, no contact with victim, fine, court costs and costs of prosecution.

Maximum Penalties: 5 years prison or probation; $5,000 fine.

Possible Diversion: Yes, with victim approval.

Defenses: Consent, Self-Defense, Threat Not Real, False Accusation

Related Offenses: Assault, Aggravated Assault with a Firearm

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.

Aggravated Assault with a firearm

Aggravated assault with a firearm is like a simple assault but the State must additionally prove that you committed the assault with a firearm.

Unlike in simple assault, there is usually a gun in evidence with this type of charge aside from the testimony of the witness.  Whether the charge is true or not, when a jury sees a prosecutor entering your gun into evidence it can perceived as bad for the defense.  If you are convicted of this charge, there is a 3-year minimum mandatory that you must serve day for day in a Florida State Correctional Facility.

Crime Level: 3rd degree felony

Most likely outcome*: 3 years mandatory prison, felony conviction, 2 years of probation following prison, anger management class, community service, no contact with victim, fine, court costs and costs of prosecution.

Maximum Penalties: 5 years prison or probation; $5,000 fine.

Collateral Consequences: Felony criminal conviction, no possibility for sealing or expunction.

Possible Diversion: No.

Defenses: Self-Defense, Threat Not Real, False Accusation, Stand your Ground

Related Offenses: Assault, Aggravated Assault

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.

Battery

A battery in Florida is when you intentionally touch or strike another person against their will.  It can also be a battery if you intentionally cause harm to someone else.  Like it or not, the simple act of touching someone against their will is technically a battery.  No injury is necessary.

A standard that is often cited is that if the touching offends a reasonable person, it is a battery.  Getting on a crowded elevator and bumping into a person is not usually offensive.  However, pushing someone out of the way to get on the elevator probably is.

Crime Level: 1st degree misdemeanor

Most likely outcome*: 12 months of county probation; community service, anger management class, batterer’s intervention program, no contact with victim.

Maximum Penalties: 1 year county jail or probation; $1,000 fine, $151 battery surcharge if convicted.

Collateral Consequences: Stigma of being arrested for a crime of violence.

Possible Diversion: Yes, with victim approval.

Defenses: Self-Defense, Defense of Property, Consent, False Accusation, Stand your Ground

Related Offenses: Battery Domestic Violence, Aggravated Battery, Felony Battery, Battery on a Law Enforcement Officer

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.

Battery Domestic Violence

When battery is committed in Florida onto a family member or a person with whom you are in a dating relationship, it is considered domestic violence battery.  The Office of the State Attorney takes these cases very seriously and has divisions that focus solely on these crimes.  Concerns are for victims and victims who suffer from battered woman syndrome.  Because of concern for recidivism, offers typically include completion of a batterer’s intervention program, which is an intensive weekly program that lasts at least 26 weeks (or 6 months).

While nobody should be the victim of domestic violence, it is a sad reality that there are people out there who will lie or make up a story to get another arrested.  When that occurs, you will want the best domestic violence attorney to represent you.  The attorney should look into motive.  A common one is when there are child custody issues in a family law case.  Another motive to lie is out of spite or jealousy.  Discovering details like these can be the difference between a conviction and an acquittal.

Crime Level: 1st degree misdemeanor

Most likely outcome*: 12 months of county probation; community service, anger management class, batterer’s intervention program, no contact with victim.

Maximum Penalties: 1 year county jail or probation; $1,000 fine, $151 battery surcharge if convicted.

Collateral Consequences: Stigma of being arrested for a crime of violence or being perceived as a “wife-beater.”

Possible Diversion: Yes, with victim approval.

Defenses: Self-Defense, Defense of Property, Consent, False Accusation, Stand your Ground

Related Offenses: Battery, Aggravated Battery, Felony Battery, Battery on a Law Enforcement Officer

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite. 

Felony Battery

Felony battery is a more serious version of simple battery.  It is enhanced only by virtue of victim injury.  If you cause great bodily harm, permanent disability or permanent disfigurement to the other person, you may be charged with felony battery.

Often times people charged with this crime argue that it is not fair to charge them as a felony just because the other person suffered great bodily harm.  For example, one person may push a guy who falls the ground and only scrapes his knee a bit.  That’s a misdemeanor.  But you push a guy with the same amount of force and your guy falls to the ground and shatters his knee.  That’s a felony.  Why should you be punished more severely for the same act?  This is called the eggshell skull theory.  You take your victims as you find them.  It’s not fair necessarily, but that is the law.

Crime Level: 3rd degree felony

Most likely outcome*: Some jail time (depending on the victim and/or the injuries), felony probation, anger management classes, payment of restitution to the victim, no contact, fines, court costs, cost of prosecution and any cost of investigation.

Maximum Penalties: 5 years state prison or probation; $5,000 fine, $151 battery surcharge if convicted.

Collateral Consequences: Stigma of being arrested for a crime of violence.

Possible Diversion: No.

Defenses: Self-Defense, Consent, False Accusation, Stand your Ground

Related Offenses: Battery, Battery Domestic Violence, Felony Battery, Battery on a Law Enforcement Officer

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.

Aggravated Battery

Like felony battery, aggravated battery is a more serious version of simple battery.  It is different in that you must intent to cause bodily harm to the victim AND you must intend either (1) great bodily harm, permanent disability or permanent disfigurement to the other person, or (2) use a deadly weapon.  A deadly weapon can be anything used or threatened to be used in a way that is likely to produce death or great bodily harm.  For example, a car, an axe, a machete, or even a baseball bat can all be considered deadly weapons.

Evidence in these cases usually also include either evidence of physical injury (usually photos) or the deadly weapon alleged to have been used.  Either way, presentation of either of those is prejudicial to a person accused of this crime.  A good criminal defense attorney will prepare to rebut what the prosecution presents.

Crime Level: 3rd degree felony

Most likely outcome*: Some jail time (depending on the victim and/or the injuries), felony probation, anger management classes, payment of restitution to the victim, no contact, fines, court costs, cost of prosecution and any cost of investigation.

Maximum Penalties: 5 years state prison or probation; $5,000 fine, $151 battery surcharge if convicted.

Collateral Consequences: Stigma of being arrested for a crime of violence.

Possible Diversion: No.

Defenses: Self-Defense, False Accusation, Stand your Ground

Related Offenses: Battery, Battery Domestic Violence, Felony Battery, Battery on a Law Enforcement Officer

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.