SARASOTA BATTERY ATTORNEY

Assault and Battery Law

 

Contrary to popular belief, an assault and a battery are not the same thing.  An assault does not involve physical contact, whereas a battery involves contact.

​

For information on Domestic Battery, please see our Domestic Battery page here.

 

There are two types of Assault in Florida

​

• Misdemeanor Assault – (a second-degree misdemeanor) maximum of 60 days county jail.

​

• Felony Aggravated Assault – (a third-degree felony) maximum of five years in prison.

 

Misdemeanor Assault

​

An assault is an act creating a well-founded fear in another person that violence is imminent.  An assault is not committed when one simply yells at another or raises a hand or fist.  There must be evidence that violence was imminent.  Imminent, in this context, essentially means immediate physical danger.

​

For instance, if one raises their fist and yells threats at another from a distance, it cannot be said that violence was imminent.  However, if one gets in another person's face and raises their fist and threatens, there is a stronger argument that violence was imminent.

 

Felony Aggravated Assault with a Deadly Weapon

​

An aggravated assault is an assault with a deadly weapon such as a knife, firearm or, in some cases, an automobile.  Aggravated assault differs from simple assault with the addition of one element—the use of deadly weapon. 

 

Aggravated assault requires proof of an intent to do violence to the person of another. For instance, driving your car with the intent to get away, and briefly driving towards someone, is not aggravated assault.  This is because the person’s intent was to get away, not to place someone in fear that they would be hit with the car.  

 

Misdemeanor Battery

 

A misdemeanor battery is defined as the actual and intentional striking or touching of another person without their consent.  There does not have to be any injury or forceful contact at all-- simply touching another person without their consent is sufficient to qualify as a battery in Florida.

 

What is the punishment for misdemeanor battery?

 

The maximum punishment for a misdemeanor battery is up to one year in the county jail.  A judge can also impose up to one year of probation or a combination of jail and probation not to exceed one year. 

​

How to get a battery case dropped

​

Getting a charge of battery dropped in the State of Florida means convincing a prosecutor or a judge to drop the case.  It is often considered easier to get a case dropped earlier in the process (typically before the state has officially filed charges or before an information is filed) rather than later (after an information is filed).  

​

Pre-filing Investigation- will the prosecutor go forward or not?

​

The prosecutor, when receiving a battery case for the first time, will begin an investigation called a pre-filing investigation (PFI).  During the PFI the prosecutor will try to find out exactly what happened, usually by speaking to witnesses (law enforcement, civilian witnesses, and the victim).  The prosecutor does not call the defendant during the PFI.

​

Law enforcement will often ignore defense witnesses

​

Oftentimes law enforcement will refuse to allow witnesses favorable to the defense to even fill out written statements!  I have heard time and time again from defense witnesses that law enforcement did not allow them to complete written statements on the scene.  

​

When this happens, it can be extremely important that these defense witnesses be brought to the attention of the prosecutor early on by the criminal defense attorney so that the prosecutor can make the appropriate decision whether to file charges after hearing the “other side of the story.”

 

What else may convince a prosecutor to drop charges?

​

Sometimes a prosecutor will decide not to file an information if, after speaking with a victim, there is something said that convinces the prosecutor that it is not in the state’s best interest to proceed, there is a question whether the case can be proven beyond a reasonable doubt, and/or the victim is reluctant to cooperate with the state and prosecute the defendant.

 

Defenses to Battery

 

• Self Defense 

​

If one is in fear of imminent bodily harm, they have a right to defend themselves.  Imminent, in this context, essentially means immediate physical danger.  Sometimes the success of a self-defense case will turn on whether the danger the defendant was facing was actually imminent.

 

• Defense of Others 

​

A person has the legal right to defend another person if the other person is at risk of imminent bodily harm.

 

• Mutual Combat 

​

When two people mutually decide to square off and fight each other, a battery is not committed.  Essentially, by agreeing to fight, the individuals are consenting to bodily contact.

 

• An Angry and Vindictive Victim 

​

An angry or spited alleged victim, such as an ex, has every reason to lie to law enforcement and concoct a story for revenge.  In these cases, it is essential to contact an attorney as soon as possible so that the attorney can launch an investigation (find witnesses, find surveillance video footage, photograph defensive injuries, etc.).  The more time that goes by, the more chance that it will be difficult, if not impossible, to gather witnesses and evidence.

 

• Lack of Injuries and/or Inadequate Evidence 

​

If the prosecutor is convinced that the evidence that the state has is simply not enough to prove a case beyond a reasonable doubt and/or defense evidence presented to the prosecutor contradicts law enforcement’s version of events, the prosecutor may decide to drop the case.

 

• An Unwilling Victim 

​

Prosecutors are much less likely to proceed with a case if the victim is not on their side.  A prosecutor ultimately has to prove a case to a jury.  It is much easier for them to do this if they have a cooperating victim. 

 

• Did the victim sign a waiver of prosecution?

​

A waiver of prosecution is an affidavit (a sworn to and notarized document) stating that, among other things, the victim does not wish for the defendant to be prosecuted.  Although a waiver of prosecution does not force a prosecutor to drop a case--it can be very influential--as the alleged victim is essentially stating that they do not wish to proceed.