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Is There Misdemeanor and Felony Assault and Battery?

July 12, 2012
By The Wiseman Law Firm

Assault and battery often are charged together since physical violence on someone is typically preceded by verbal threats, or actions, that promise imminent physical harm on someone. Like many criminal offenses, assault and battery can be charged as either a misdemeanor or a felony.

Misdemeanor Assault

In Florida, a misdemeanor assault is a threat or act that causes a person to have a reasonable fear of imminent violence and the offender has the apparent ability to carry it out. So long as a dangerous weapon is not used to convey the threat, the assault is a second degree misdemeanor.

If you are charged with assault, a key element is that you acted in such a way that your act or threat would likely have resulted in applying force to someone. The target of your threat must also be aware that your act or threat would likely result in harm and that he or she had a reasonable fear of it.

For example, screaming at someone and saying you will hit them if they ever did something again could instill fear in someone, but it may not constitute assault as there is no imminent or immediate threat of harm. This could, however, be charged under domestic violence or abuse in some circumstances.

Also, you must have been able to carry out the threat or act at the time. Swinging at someone with a punch and missing them is an assault since you intended to hit someone and knew that your act would harm them.

But if you state that if the person does something again that you will shoot them or beat them, there is no present ability to carry out the act. Again, this act could be construed as making terroristic threats or be domestic violence if the person is a spouse or intimate partner.

A second degree misdemeanor carries up to 60-days in jail, 6 months’ probation and a fine up to $500.

Felony or Aggravated Assault

A misdemeanor or simple assault becomes an aggravated assault, also known as an assault with a deadly weapon in some areas, if a deadly weapon is used or you used some other means of force likely to cause serious or great bodily injury.

A deadly weapon need not necessarily be a firearm. It can be a knife, baseball bat, plank of wood, broken bottle, or anything else capable of inflicting serious bodily harm. An aggravated assault is a third degree felony offense in Florida that carries up to 5 years in prison, 5 years’ probation and up to a $5000 fine.

An aggravated assault in Florida can also be a first degree felony if the victim is a public official engaged in their official duties such as a police officer, transit worker, parking enforcement officer, breath test operator, code inspector, emergency personnel, or licensed security officer.

There are other “special victims” who need not have been engaged in their official duties as indicated above but which elevates the charge to a first degree felony. These include persons over 65, sports officials (if participating in the event or immediately thereafter), as well as school officials if the offender knew of the person’s status, and employees for the Children and Family Services Department.

If the victim is a police officer, the crime rises to the level of a first degree felony cwhich arries up to 30 years in prison with a mandatory minimum 5 year prison sentence and a fine up to $10,000.

Misdemeanor Battery

Any battery in Florida is a misdemeanor provided the victim does not sustain a serious bodily injury, a dangerous weapon is not used, and the victim is not a pregnant woman that the offender either knew or should have known was pregnant.

A battery is any offensive, intentional touching of another person without the victim’s consent. Pushing or shoving someone or striking them without causing them serious harm is a first degree misdemeanor offense in Florida, which carries up to one year in jail, one years’ probation and a fine up to $1000.

Felony or Aggravated Battery

A battery can be upgraded to a felony under a number of factual circumstances. If you have caused great or serious bodily harm including disfigurement, scarring, broken bones, or an injury requiring sutures or surgery, or severe bleeding, you will likely be charged with felony battery. If the victim suffers a permanent disability, which may include any impairment of a person’s cognitive abilities or ability to perform a normal task, then the injury is a serious one, and again the crime will rise to the level of felony battery.

Additionally, any battery of any kind on a woman that the offender knows or should have known was pregnant is also a second degree felony.

Further, use of a firearm or deadly weapon in committing a battery will upgrade the offense to felony.

A second degree felony in Florida is punishable by up to 15 years in prison, 15 years’ probation and a $10,000 fine.

An aggravated battery in Florida can also be a first degree felony if the victim is a public official or “special victim” as defined above for first degree felony assault.

If you are charged with any type of assault or battery and want aggressive, dedicated and experienced representation, contact The Wiseman Law Firm for a free consultation.

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