When faced with an assault charge it is important to know that there are three elements required to be convicted with those charges. They include (1) an intentional, unlawful threat, (2) an apparent ability to carry out the threat, and (3) creation of a well founded fear that the violence is imminent.
In H.W. v. the State of Florida, the defendant appeared to have verbally threatened another individual. H.W.’s case was reviewed and it appeared that there were sufficient findings that he made an intentional and unlawful threat as well as instilling fear into the victim. However, his threat was not an immediate concern because it did not create a fear that he would act on his threat at that time.
The facts of this case take place at a middle school. The defendant, H.W., was called into an office for disciplinary action. After learning that he would be suspended, H.W. cursed at the school employee and became verbally abusive, calling her a bitch and shouting fuck you, lifting up his shirt and pacing back in forth in front of her desk. H.W. then left the office but returned within the next hour threatening Jones that something bad was going to happen to her later that day. An officer was outside that office and heard what was said.
In this case, the appeals court found that the three elements listed above were not met; therefore, they reversed the ruling. Although H.W. made an intentional, unlawful threat and Jones had a well-founded fear, H.W.’s threat did not create a well-founded fear that he would do something to Jones at that time. In other words, the fear may have been of violence, but not of imminent violence, which is what is required of the State to prove.
If you find yourself in a similar situation be aware that they require the three elements to be met in order for an assault to exist. You may think that you don’t have a defense to the charge when you actually might! Therefore, it is important to seek advise from an attorney as soon as possible. See case H.W. v. the State of Florida 37 Fla. L. Weekly D297 for more on this particular case.
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