Assault and Battery

Assault and Battery

Arguments may get heated, and the exchange of words can turn into the exchange of fists.  Many times, these kinds of fights are not reported and the respective parties move on with their lives.  But, when law enforcement is involved, these seemingly everyday occurrences can become a legal problem with serious consequences.

What is an Assault?  

          Contrary to popular belief, an assault, under Florida law, does not actually involve the touching of another person.  Florida law defines assault as:

                        “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which                               creates a well-founded fear in such other person that such violence is imminent.” (Florida State Statute s. 784.011)

          Assault is a second-degree misdemeanor, punishable by up to 60 days in the county jail and/or up to six months of county probation.  

If, however, a weapon is used in the assault, that may qualify as an “aggravated” assault.  Aggravated assault is a third-degree felony punishable by up five years in prison and/or five years of State probation.  In other words, waving a knife, a gun, or even a bat, at someone in a threatening way could find you facing prison time.

What is a Battery?  

Battery involves the intentional touching or striking of another against their will- or - simply intentionally causing bodily harm to another.  Bodily harm or injury is not required.  This is often referred to as "simple" battery and is a first-degree misdemeanor, punishable by up to one year in the county jail and/or one year of county probation.  (Florida State Statute s. 784.03)

          Much like the use of a weapon in an assault, a battery charge can be enhanced by other factors surrounding the situation.  

  • Felony battery occurs where a person commits a simple battery, but in doing so causes great bodily harm, permanent disability or disfigurement to the victim. Felony battery is a third-degree felony punishable by up to five years in prison and/or up to five years of State probation.

  • Aggravated battery may occur in three ways:

1) A person knowingly and intentionally causes great bodily harm, permanent disability or disfigurement to another,

2) In committing a battery a person uses a deadly weapon, and

3) A person commits a battery upon a person that he/she knew or should have known was pregnant at the time of the battery.  

All three categories are second-degree felonies, punishable by up to 15 years in prison and/or up to 15 years of State probation. (Florida State Statute s. 784.03)

Other Possible Aggravating Factors  

  • Prior conviction for battery (prior conviction for battery, felony battery, or aggravated battery – even where there was a withhold of adjudication) – 3rd degree felony 784.03(02)

  • Domestic violence strangulation 784.041 2(a)

  • Law enforcement officers or other special personnel 784.07

  • Person 65 or older 784.08

What About Self-Defense?   

Self-defense is an affirmative defense to any charge of assault or battery (including aggravated forms of battery and assault).  Generally speaking, you have the right to defend yourself, provided you use a reasonable amount of force and do so because you reasonably believe that you were about to be harmed by another.  Florida law allows both the use of non-deadly and deadly force, depending on the circumstances.

Self-defense must be raised at trial, where the jury will determine whether or not a person was legally justified in their use of force.  

Stand Your Ground (SYG), on the other hand, is a statute that provides immunity from prosecution, generally raised prior to trial, in the form of a Motion to Dismiss.  As a result, there are different associated legal standards and procedures.  It is also important to remember that if a defendant loses a SYG Motion to Dismiss, they can still raise self-defense at trial.  In fact, it’s not uncommon for a judge to rule that a defendant is not entitled to immunity under SYG, where the jury later acquits the defendant after they argue self-defense at trial.  

             Board-Certified Attorney Benjamin Wurtzel has handled many cases involving assault, aggravated assault, battery, felony battery, and aggravated battery.  Mr. Wurtzel has in-depth knowledge as to how to best structure a self-defense claim at trial, and also has experience in filing and arguing pre-trial Stand Your Ground immunity motions.  If you, or someone you know, is accused of assault or battery, call Wurtzel Law today to learn more about our detailed strategies and experience in defending your assault or battery charge.                                 


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