The word “assault” is commonly used interchangeably to refer to physical violence. However, in Florida, the legal definition of “assault” refers to the threat of violence, but not the actual use of it.

Under Florida Statute 784.011, “assault” is defined 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.”

If no weapon is involved and the alleged victim is not a special status, then Assault is a second-degree misdemeanor, punishable by up to 60 days in jail.

Under Florida statute 784.021, Aggravated Assault is an Assault (threat of violence) committed either with a deadly weapon or with the intent to commit a different felony.

What constitutes a “deadly weapon” is often up to a jury or factfinder to determine, but almost always depends on how the weapon was threatened to be used.

An Aggravated Assault is a third-degree felony, punishable by up to 5 years in prison.

Battery involves the physical touching of another person and is defined under Florida Statute 784.03 as:

“1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally causes bodily harm to another person.”

Notably, a Battery does not require that the victim be injured, but rather that the victim is touched against their will.

In addition, it is considered a “touch” if one causes another to be touched, such as intentionally throwing an object and hitting another person.

For a first offense, a Battery is a first-degree misdemeanor, punishable by up to 1 year in the county jail.

If a person has at least one prior Battery offense, then a Battery can be charged as a third-degree felony, punishable by up to 5 years in prison.

An Aggravated Battery is defined under Florida Statute 784.045 as a person commits a Battery and:

“1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally causes bodily harm to another person.”

An Aggravated Battery is a second-degree felony and punishable by up to 15 years in prison. In addition, Aggravated Battery is classified under the Florida Sentencing Guidelines as a Level 7 offense, which scores a prison sentence even if the offender does not have prior criminal history. A simple Battery can quickly escalate into a serious crime depending on the extent of injuries and/or objects used.

What constitutes a “deadly weapon” is almost always up to a the jury or factfinder and often depends upon how the object was used during the Battery.

Assaults and Batteries involving family or household members, by statute, require special duties and responsibilities by law enforcement, prosecutors, and judges

Under Florida Statute 741.28, “Domestic Violence” is defined as: “[A]ny assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”

A “family or household member” is defined as: “[S]pouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.”

When law enforcement responds to a report of domestic violence, by statute, law enforcement must attempt to make a determination about whether violence occurred, who the primary aggressor was, and must make an arrest if the officer determines that an act of domestic violence probably occurred. In addition, the arrested person must be held without bond until his or her first appearance, which may take up to 24 hours from the point of arrest. Unlike most other crimes, an arrested person does not have the ability to post bond until first seeing a judge.

By the first appearance, the prosecutor is required to conduct an investigation into the incident to be able to inform the judge on factors that would be relevant for setting a bond. Judges, in setting a bond, are required to take into account prior arrests for domestic violence, prior history between the parties, injuries, and any other standard bond factors.

Because bond restrictions often include that the arrested person not have contact with the alleged victim, an arrest for Domestic Violence can also effectively result in an eviction as living in the same household would violate the no contact order.

Domestic Violence arrests are often more disruptive to other facets of life than are arrests for other crimes.

Assaults and Batteries can be enhanced to more serious crimes based upon the alleged victim’s status or in certain circumstances defined by statute.

Enhancements based upon a victim’s status and other circumstances include:

• Pregnancy

• Injunction already in place

• Over the age of 65

• Law Enforcement

• First Responders

• Government Employees

• Hospital Staff

• School staff

• Sports Officials

• Detainees

• Jail or Prison Staff and Visitors

Upon an arrest, law enforcement is required to provide alleged victim’s with information explaining their legal rights. While pamphlets and brochures provided on scene may vary, the Notice of Legal Rights can be found here.

In addition, most Florida jurisdictions have diversion programs and other special treatment for Domestic Violence cases. Local examples include:

Pinellas/Pasco

Hillsborough

Manatee

If you or a loved one need(s) an Injunction against someone for Domestic Violence, please see our Injunctions page for more information.

In many instances of Assault and Battery, the case comes down to who is telling the truth. In any case, whether there were injuries or threatening statements are very important.

If you are arrested for such a charge, then its important to act fast to preserve evidence before its gone. Some tips for after an arrest:

• Contact an attorney as soon as possible

• Take photos of all injuries, especially if the injuries appeared after the initial investigation

• Preserve any communications, such as text messages or emails, with the other party

• Do not contact the other party, particularly if there is a No Contact Order in place from the judge