Assault and Battery Defense

Charged with assault or battery in Florida?

A charge as filed isn’t always the charge the State can prove. Depending on the evidence, a felony may be reduced or self-defense may apply.

In Florida, "assault" and "battery" are separate crimes. Assault is a threat. Battery is an actual touch or strike. Each has a misdemeanor version and felony versions, and the difference between them can mean 60 days in jail or 15 years in prison.

An arrest is the start of the case, not the end. The State still has to prove every element beyond a reasonable doubt. As a former prosecutor, Chad M. Seibel knows how these cases are charged and where the State's proof is often thin.

The charges, from least to most serious

Assault (§ 784.011): second-degree misdemeanor, up to 60 days in jail. A threat of violence, by word or act, that creates a well-founded fear that violence is about to happen.
Battery (§ 784.03): first-degree misdemeanor, up to 1 year in jail. Intentionally touching or striking someone against their will, or intentionally causing bodily harm.
Battery with a prior conviction (§ 784.03(2)): third-degree felony, up to 5 years in prison. Battery after a prior battery, aggravated battery or felony battery conviction.
Aggravated assault (§ 784.021): third-degree felony, up to 5 years in prison. Assault with a deadly weapon (without intent to kill), or with intent to commit a felony.
Felony battery (§ 784.041(1)): third-degree felony, up to 5 years in prison. Battery that causes great bodily harm, permanent disability or permanent disfigurement.
Domestic battery by strangulation (§ 784.041(2)): third-degree felony, up to 5 years in prison. Impeding a family or household member's breathing or blood flow by pressure on the throat or neck, or by blocking the nose or mouth.
Aggravated battery (§ 784.045): second-degree felony, up to 15 years in prison. Battery that intentionally or knowingly causes great bodily harm, permanent disability or disfigurement; or uses a deadly weapon; or involves a victim the person knew or should have known was pregnant.

Maximum sentences come from § 775.082. Charges involving certain victims, such as law enforcement officers, firefighters or people 65 and older, can be reclassified to a higher level.

What the State has to prove

For a simple battery, the State must prove that you actually and intentionally touched or struck the person against their will, or intentionally caused them bodily harm. For assault, it must prove an intentional, unlawful threat, an apparent ability to carry it out, and an act that created a well-founded fear in the person that violence was imminent.

The felony versions add more: a deadly weapon, a specific level of injury, or a specific intent. Each added element is something the State must prove, and each is a place the case can be challenged.

Possible defenses

Every case turns on its own facts. Depending on the evidence, defenses may include:

Self-defense or defense of others. Florida law allows reasonable force to defend yourself or another person in many situations.
No intent. An accidental contact is not a battery.
False or exaggerated accusation. Many cases start with one person's word, sometimes in the middle of a breakup, custody dispute or argument.
Misidentification. In crowded or chaotic scenes, witnesses can be wrong about who did what.
The injury or weapon does not meet the legal definition. Whether an injury is "great bodily harm," or an object is a "deadly weapon," is often disputed and can decide whether the charge is a felony.
Problems with the evidence. Inconsistent statements, missing video, or an unlawful search or interrogation may limit what the State can use.

Frequently asked questions

Can the alleged victim drop the charges? No. Once police make an arrest, the decision to file or drop charges belongs to the State Attorney's Office. The alleged victim's wishes may matter to the prosecutor, but they do not control the case.

Is assault a felony in Florida? Simple assault is a second-degree misdemeanor. Aggravated assault, which involves a deadly weapon or intent to commit a felony, is a third-degree felony.

Will I go to jail for a first battery charge? It depends on the facts, your record and the county. Some first-time cases may be eligible for diversion or pretrial intervention programs. Eligibility rules vary, and a lawyer can tell you whether you may qualify.

What if the case involves a family member or partner? Domestic violence cases often come with no-contact orders and different bond conditions. Talk with a lawyer before contacting the other person.

Talk to a defense lawyer today

If you or a family member has been arrested for assault or battery, call 407-846-8008 now for a free consultation.

Attorney Chad M. Seibel, Of Counsel at Perez LaSure Law. Office in Kissimmee. Consultations and meetings available throughout Florida by appointment. Hablamos español. Atendemos em Português.