The problem for the individual who is self-representing and not retaining an experienced attorney on a battery charge is that they do not know who the prosecutor is in those reports, or the judge considers aggravating factors. The most likely scenario is when someone gets jail time as a first offender, for a battery, or an assault charge. Quite often, someone will get a copy of a probable cause statement that is part of an arrest report. They conclude that is all the information there is. Normally, there should be an incident report, an offense report, possibly a supplemental report, and in addition, witness statements, which should include body camera evidence from all the agencies that participated in this crime.

WHAT SHOULD YOU PLEAD?

Most people want to plead no contest, or guilty on their first court date, in order to get it over with minimal cost involved. The problem is when someone commits this crime; there are aggravating factors in their case, even if it is not true. They may find themselves in a position where they plead no contest, or guilty, and then after they have entered that plea of no contest, or guilty, the state gives a recommendation, and this may be the first time that someone gives that recommendation. Another scenario is that the person who is claiming to be the victim no matter what the state recommends, shows up in court, and asks for jail time. This puts a lot of pressure on any judge.

It is a good idea to have a lawyer whenever anyone is charged with a criminal offense, especially if they are first offenders. A criminal defense lawyer can handle this type of fact pattern, when someone does not want to go to trial, but they want the best possible settlement, with the least amount of risk. This can be handled without the person even going to court in many of our Florida counties. It is known as a written plea in absentia, or if the facts allow it, a negotiated dismissal. A negotiated dismissal is vastly superior to those diversion programs, and usually far less burdensome. A lawyer can do many things to make the process more convenient for a defendant who faces criminal charges for the first time.

A defense lawyer can protect a client’s legal interests when they have been charged with a first offense battery, or assault charge, and any surprises that may arise in court. Finally, only with a skilled criminal defense lawyer will someone find themselves getting the best possible negotiated settlement. Quite often with first offense cases, we bypass diversion entirely, because it is too burdensome, and we focus on a negotiated dismissal, so when everything is over, there is a dismissal which paves away for a much quicker expungement of the criminal record, as well as presenting an unexpected jail sentence.

WHAT IS THE PUNISHMENT FOR ASSAULT AND BATTERY WITH A DEADLY WEAPON?

The punishment for assault and battery with a deadly weapon is going to depend on a number of factors. First, one of the most important factors is whether it is an assault, or a battery, because the two are very different. Think of a simple assault as a swing and a miss, whereas a simple battery is a swing and a hit. A battery is when someone makes contact on another person. The deadly weapon can be anything from a baseball bat, to a firearm. Anyone charged with aggravated assault with a deadly weapon is looking at a felony charge, and depending on the type of deadly weapon; they involve mandatory minimum prison time. Someone charged with an aggravated battery with a deadly weapon is looking at mandatory prison time.

If the weapon happens to be a firearm, then there are additional penalties, minimum mandatories, and there is a risk that the charge could be upgraded to attempted murder. In fact, that is the risk with any type of assault, or battery charge where there is a deadly weapon if the police or the prosecuting authority thinks that the intent was present to kill another person. The police may arrest somebody for an assault charge with a deadly weapon, or a battery charge with a deadly weapon, based upon the state attorney’s review of all of the documentation. After someone is arrested for these charges, the state may decide to increase the charges, and a person who is arrested faces a greater deal of legal liability.

We do many different things to defend against assault, and battery charges. Generally, when someone is talking about defending an assault or battery charge with a deadly weapon, this now becomes a higher level of a serious charge, with greater liabilities for that individual. Many people want to handle these cases as inexpensively as possible. For example, they may decide to use the services of a court-appointed, or public defender. The problem with this is, they may not qualify financially, and secondly, even if they do, they run the risk of having an attorney who is so busy that cases are ignored.

At least once a week, someone contacts me, and says, “I tried to call my public defender for four weeks, and I was not able to get through to anybody”. This happens routinely, because the office of the public defender does not receive the funding that it needs for all these cases. If someone is charged with an assault, or battery charge with a deadly weapon, privately retained counsel is going to be a very important consideration. Privately retailed counsel can help someone through the process much more effectively, starting with getting a reasonable bond, and arrangement. If it is a warrant arrest case, as opposed to a probable cause case, retained counsel is going to guide you through this process effectively, and in a timely manner.

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

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