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What Factors Can Enhance Or Aggravate An Assault Charge?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Florida assault and battery law is very broad. There are many ways that a charge can be aggravated and I’ll list a few of the common ones. First of all, there are statutory aggravating factors. Statutory aggravating factors are very easy to find with a quick Google search and this is what most unrepresented people focus on. Then there are aggravating factors under the case law which are not as easy to find because they are hidden behind paywalls and then finally you have hidden aggravating factors that a person would never even know to look for, let’s go through all three. When it comes to statutory and case law aggravating factors, we’ll just lump those in together for now.

A firearm or a weapon always aggravates the charge. If someone is charged with an assault and then later after the police have arrested someone during the initial criminal intake by the office of the state attorney, is the assistant state attorney in charge of prosecuting the case talks to the complaining witness and hears, “and not only was I assaulted at that time but he also pulled a knife five minutes later.” That’s going to turn that misdemeanor case where the person was arrested for a misdemeanor assault, the prosecutor has the discretion to increase the charge and does not have to go to a grand jury. So in that fact pattern that misdemeanor case would be transferred out of county court, the prosecutor would enhance the charge to an aggravated assault because of the allegation of a knife and then court dates would change and liability would increase dramatically.

It would go from a misdemeanor charge to a felony with a maximum of 5 years in state prison. That’s an example for an aggravator for a simple assault charge. For a battery charge one common example is that it’s increased to a felony battery charge but the far more dangerous one is if there is an allegation of great bodily harm and that someone has had a weapon of some kind. If someone balls up their fist and hits another person, most of the time that is going to be a misdemeanor battery with a maximum of one year in jail whether it’s a bar fight or whether it’s a domestic, doesn’t matter. At the same time, if the allegation is that the person pulled out a lead pipe and hit the other person breaking their arm, that’s now a major felony. It’s a major felony because aggravated battery carries a maximum penalty of 15 years in state prison and more importantly under the Florida punishment code, this is one of those type of charges where a first offender is looking not at jail time but actual state prison time because of the Florida punishment code.

The Florida punishment code divides criminal offenses into 10 categories. Each category has a certain number of points associated with it. The magic number is 44. Anything above 44 points must be a state prison sentence unless one of 14 recognized departure grounds are proven by the defense at a sentencing hearing. In the case of aggravated battery, if the ceiling is 15 years, that’s the maximum, then before it becomes a prison sentence because at the very top of a sentencing score sheet where points are calculated, an aggravated battery charge carries 56 points straight out of the box before you score a prior record, before you add points for victim injury, before you add any other points for any other reason, that person’s floor is a prison sentence and their ceiling is 15 years.

That’s a very dramatic difference from a misdemeanor case. Hidden aggravators catch people by surprise in misdemeanor cases on a regular basis. What’s a hidden aggravator? A hidden aggravator is something that you do not find in the case law, the rules of procedure or the statutes. The hidden aggravator is something that particularly bothers a particular prosecutor which influences them to ask for a jail sentence in a first offense misdemeanor battery for example when most of the time they would offer a probationary sentence that would have lifelong collateral consequences depending on the type of fact pattern behind it and any other charges with it. Hidden aggravators also affect judges. For example, if a particular judge finds certain behaviors to be more offensive than others, an unrepresented person can walk into arraignment court where they are called down to the podium in the front by the judge and the prosecutor then reads out the charge.

Previous to that the judge may have said if your charge was a first offense DUI, if you were charged with a first offense domestic, if you were charged with a first offense non-domestic battery, these are generally what I do. People hear this in the audience and they go, oh by entering a no contest plea to this battery charge I’m going to be fine because the judge just told me what I’m going to get. What they don’t realize is that most judges have filed documents on a computer to the side, usually to the left side, as the judge is facing you. It will be the defendant’s right side and the judge’s left and they are looking at a computer. If they see something in those reports and by the way when someone is arrested for battery or an assault charge, felony or misdemeanor, they are never given all of the paperwork.

They are given a probable cause statement which is part of an arrest report but they do not get bodycam evidence, they do not get offense report, they don’t get any incident reports that accompany it, they don’t get any supplemental reports, witness statements, nothing. Yet the judge may have all of that information and if the judge looks at this and finds something that that particular judge determines as particularly egregious, the person who is pleading no contest expecting to walk out of the courtroom through the same door by which they entered may discover that they are getting what the judge said earlier when the judge gave an indication as to the type of sentence for a first offender for that charge. Instead that person is going to get 30, 60 or 90 days in jail and since they are buckled up in court immediately and taken off to jail without so much as a phone call, the family is often wondering what happened to them, their employer may wonder what happened to them and fire them for not showing up the next day. Pets can go hungry, starve and in some cases have died because their owner was thrown into jail without any way to contact the outside world.

So going into court unrepresented on even a misdemeanor assault or battery charge and trying to wing it against an experienced prosecutor without knowing what may offend a particular judge or prosecutor, that person runs a very high risk of getting courthouse surprise and that can be one of the most life altering and damaging things that can happen to someone.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

For more information on Aggravation Of Assault Charges, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 466-1522 today.