Stephen G. Cobb - Florida Criminal Defense Lawyer

How Are Assault And Battery Charges Defined In Florida?


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.

Assault and battery charges are handled separately because there are two different sets of definitions. There is the lay explanation, then there is the Florida Law definition, and I am going to use both. An assault is where there is a credible threat that violence is about to occur. An example would be somebody picks up their fist, balls it tight, draws their hand back and says, “I am going to kick your ass”, by the way, this happens a lot. That is an assault. At the same time, if someone were to say, “I am going to kick your ass at some unspecified future date”, legally that is not an assault. Now, in lay language, the way I often describe it is an actual assault, think of it like a swing and a miss; and for a battery, think of it as a swing and a hit. However, under Florida law, a battery is, 1) intentional contact. It cannot be an accident; it has to be intentional. That contact has to be harmful or offensive.

People understand the context of a swing and a hit, because they can envision somebody hit in the face with a fist, or in the case of an aggravated battery or felony battery with a bat, a shoe, or some implement, so people can easily conceptualize that. Where they sometimes do not fully appreciate a battery, is they will look at intentional contact that is offensive, and laugh it off. However, Florida’s statutes and applicable case law clearly state that if there is intentional contact without a defense that is offensive. That can justify a battery. The extreme example I often use to explain it is like this. If someone says, “Don’t touch me at all, don’t even touch the hair on my arm”, and then somebody jokes around with them says, “Ha ha ha”, and then touches the hair of their arms, they have just battered that person. Therefore, the definition of assault and battery, under the law, is very broad.

How Is An Assault Or Battery Charge Determined To Be A Misdemeanor Or A Felony?

Generally speaking, weaponry and injury. For example, if someone takes a swing at someone with their fist and misses, that can be a simple assault, a misdemeanor. However, if someone were to point a gun at someone, that is a felony aggravated assault with a firearm that carries minimum mandatory prison time. And if they discharge the firearm and miss, that is the mother of all aggravated assaults, which carries the highest penalty, because it is going to invoke the ten, to twenty life law. Therefore, that would be an example of different types of assault, misdemeanor, and felony. Let us look at battery because I have a surprising one. A battery, we can think of as a swing and a hit. It would be a misdemeanor. However, if someone uses a deadly instrument like a baseball bat, a broken bottle and they hit somebody with it that is going to be at best a felony battery with the five-year maximum, and more likely an aggravated battery with the fifteen-year maximum.

Under the Florida punishment code, it is going to score 56 points, and since that is above 44, which is mandatory prison time under the point system. If a firearm is used, even more time is involved, because we have a firearm enhancement. One of the strangers aggravated batteries used to be a misdemeanor, and that was a battery of a pregnant woman. If a man or a woman knows that another woman is pregnant and intentionally touches that person in a way that is harmful or offensive, and we are talking everything from pulling her hair when she does not want her hair pulled, to slapping her. Because that person is pregnant, and the defendant, whether male or female, knows that that person is pregnant, by statutory law, the legislature has enhanced that to an aggravated battery. This means it scores 56 points straight out of the box, it is above the 44 thresholds, and that invokes mandatory prison.

Just because an offense invokes mandatory prison or is a felony that does not mean that someone will automatically serve prison time. They need skilled legal representation obviously, and there are many different types of outcomes that occur without incarceration. But assault and battery cases are always serious cases, not to be taken lightly even more so if they are felonies or involve domestic violence allegations.

How Does The Degree Of The Alleged Injury Impact An Assault Charge?

If we are dealing with an assault charge, there should be no injury to the complaining witness who the state will always call the victim. That is because the definition of assault precludes physical contact. However, in our culture, people are so used to saying assault and battery as if they are one in the same that many people think of them as one in the same, where they are actually different. Assault means no contact; battery means some form of contact. When it comes to the degree of injury that can be one of the most defining aspects of how a case is prosecuted as well as the end result. It can be a defining aspect because, in a felony, a victim’s injury can add a significant number of sentencing points, and increase sentencing past the 44-point threshold even when the charge initially will not do so.

The classic example of this is a serious felony battery that is not listed as an aggravated battery. If there is sufficient victim injury, then the point total can go above 44, and thus a first offender, when charged with felony battery, can be charged in such a way that they end up with the bottom-end of the sentencing range on a state prison sentence. There is the aspect of the degree of injury in misdemeanor cases. The degree of injury in misdemeanor cases can cause the state attorney to ask for jail time on a first offender, even though that particular individual would not be prosecuted as vigorously. Therefore, victim injury can make a difference between whether or not a case is a misdemeanor or a felony; it can make a big difference on how intensely the prosecutor pursues charges, and it can affect the type of defenses involved, and it can make the difference in the outcome of any case.

No matter what type of assault or battery, and no matter what type of degree of injury someone suffers, it is critical to have skilled legal counsel handle the defense side of the case because the entire office of the state attorney is prosecuting on the other side. They are big fans of over-punishing people for things that happen involving Florida Criminal Law.

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 Assault & Battery Charges In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 466-1522 today.

Stephen G. Cobb, Esq.

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