Assault and Aggravated Assault

Summary

An assault is when a person says or does something that creates a well-founded fear in another person that they are about to suffer an act of violence.  Taking a swing at someone or lunging at someone are both examples of simple or second degree misdemeanor assaults.  When a person commits an assault with a deadly weapon (such as trying to hit someone with a motor vehicle, raising a bat or weapon at someone, pulling a firearm on someone), or with the intent of committing a felony, it is an aggravated assault, which is a third degree felony.

Florida Statutes

784.011 Assault.—

(1)  An “assault” is 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.

(2)  Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

784.021 Aggravated assault.—

(1)  An “aggravated assault” is an assault:

(a)  With a deadly weapon without intent to kill; or
(b)  With an intent to commit a felony.

(2)  Whoever commits an aggravated assault shall be guilty of a felony of the third degree,

Elements

To prove the crime of Assault, the State must prove the following three elements beyond a reasonable doubt:

1.  Defendant intentionally and unlawfully threatened, either by word or act, to do violence to victim.
2.  At the time, defendant appeared to have the ability to carry out the threat.
3.  The act of defendant created in the mind of victim a well-founded fear that the violence was about to take place.

To prove the crime of Aggravated Assault, the State must prove the following four elements beyond a reasonable doubt. The first three elements define assault.

1.  Defendant intentionally and unlawfully threatened, either by word or act, to do violence to victim.
2.  At the time, defendant appeared to have the ability to carry out the threat.
3.  The act of defendant created in the mind of victim a well-founded fear that the violence was about to take place.

Give 4a or 4b as applicable.

4a.  The assault was made with a deadly weapon.
4b.  The assault was made with a fully-formed, conscious intent to commit crime charged upon victim.

If 4b is alleged, define the crime charged.

Definition. Give if 4a alleged.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Give if 4a alleged.

It is not necessary for the State to prove that the defendant had an intent to kill.

Penalties/Sentencing

Criminal charges are designated as varying degrees of misdemeanors and felonies, according to the Florida Criminal Code, Chapter 775 of the Florida Statutes. Each offense is further categorized into levels according to an “Offense Severity Ranking Chart” and assigned a corresponding point value.  The points are calculated and form the basis for the guideline sentence that the court should impose, according to the Florida Criminal Punishment Code, Chapter 921 of the Florida Statutes.

The range of penalties that may be imposed for Assault and Aggravated Assault is:

Assault – second degree misdemeanor:

1.  Up to 60 days in jail;
2.  Up to 6 months of probation;
3.  Up to a $500 fine

Aggravated Assault – third degree felony/Level 6:

1.  Up to 5 years in prison;
2.  Up to 5 years of probation;
3.  Up to a $5,000 fine

In addition, the court may order community service and classes/counseling, among other reasonable penalties, as part of the sentence.  The court and/or the laws of Florida may also require the suspension of your driver’s license and registration as a felon.

A person may also face secondary consequences due to a criminal sentence, such as deportation (if not a U.S. Citizen), the loss of civil rights (such as the right to vote, possess a firearm, or to serve on a jury), and the loss of employment and educational opportunities, among others.

If a firearm is used or if the alleged victim is a law enforcement officer, firefighter or EMT, then the offense qualifies for a 3 year minimum mandatory prison sentence, if convicted.

Aggravated Assault with a Deadly Weapon is a qualifying offense for a defendant to be sentenced as a Prison Releasee Reoffender (PRR).

If you are sentenced on an Aggravated Assault you may not seal or expunge your record.

Typical Defenses

A person can’t be sentenced or have penalties imposed if found not guilty or the case is dropped or dismissed.  The law affords every accused person of the right to due process, including the right to have the court prohibit or limit the use of evidence that was not lawfully or fairly obtained.  Ultimately, an accused has the right to be presumed innocent and to require, through a jury trial, that the government must prove the case beyond a reasonable doubt.

In addition to the many Pre-Trial Motions and Defenses available in most criminal cases, an Assault or Aggravated Assault has the following applicable defenses at trial:

Conditional Threat –A threat to commit a violent act in the future that is conditional on some possible future event is not an assault.

Lack of apparent ability to carry out threat – a person who is not in a position to actually carry out the threat of harm does not commit assault.

Unreasonable fear by the alleged victim – When the alleged victim has an unreasonable fear of harm, an assault is not committed.

  • Newsletter Signup
    Get our newsletter!