People often get assault and battery confused. Each are distinct and separate crimes. There are many assault statutes on the books relating to different factual scenarios and each are treated differently. Some assault statutes specifically relate to firearms, law enforcement officers, elderly people, disabled people and more. Call the experienced Jacksonville criminal defense lawyers of Shorstein, Lasnetski, & Gihon today to discuss your assault case.
An assault is not an actual physical act of hitting or striking someone. That is a battery. An assault is putting someone in fear of that a battery is about to occur. The classic example is making someone flinch by simulating that you are about to him them. That would be an assault. A person can be charged with both assault and battery, under the theory that they are two separate and distinct crimes. One relates to the threat of violence and the other relates to actual violence, or at least an unwanted touching. You can commit an assault without committing a battery and you can commit a battery without committing an assault. For example, you can swing at someone and not make contact. That would be an assault, but not a battery. Alternatively, you could hit someone from behind without them knowing that they are about to be hit. This would be a battery, but not an assault. But in most cases, where contact is made, law enforcement probably could charge you with both assault and battery, however, they typically will just charge the battery, which is one degree higher than an assault.
Assault is defined in Florida Statute Section 784.011. In order to prove that you committed an assault, the State must prove:
- You intentionally and unlawfully threatened, either by word or act, to do violence to the victim, and
- at the time, you appeared to have the ability to carry out the threat, and
- the act created in the mind of the victim a well-founded fear that the violence was about to take place.
A simple Assault is a Second Degree Misdemeanor punishable by up to 60 days in jail. The possible sentence increases depending on the victim (elderly person, person with disabilities, law enforcement officer) and if a weapon was used.
Some common defenses to Assault are that the listed victim wasn't in fear, that you were acting in self defense, that you did not have the ability to carry out the threat, and that you did not threaten violence. For example, if you were in a full body cast and told someone you were going to punch them, you wouldn't have the ability to carry out the threat at that time. If you qualify the threat, (i.e. if you don't stop what you're doing, I'm going to punch you), then the State may not be able to prove that you created a well founded fear that violence was about to take place. Each case is different. Give our experienced criminal defense attorneys a call to discuss the facts of your case and possible defenses unique to you.
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