Orlando Assault Defense Attorney
Florida laws divide Assault into two crimes: Simple Assault and Aggravated Assault. Section 784.11, Florida Statutes, defines (Simple) Assault 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. Section 784.021, Florida Statutes, define Aggravated Assault as a simple assault with a deadly weapon without intent to kill; or with an intent to commit a felony.
Assault is a crime of attempt. The crime of assault relies on the threat made, as it is based on the subjective view by the victim — given the circumstances — that objectively a similarly situated person would reasonably fear the violence.
Assault and Attempted Battery are not the same crime. Attempted Battery is the actual commission of the violent acts, unsuccessfully.
Elements of Assault
In order to obtain a conviction for simple Assault, Orange County prosecutors must prove three factual elements beyond a reasonable doubt:
- The defendant intentionally and unlawfully threatened, by word or act, to do violence to the alleged victim;
- At the time the threat was made, the defendant appeared to have the ability to carry out the threat; and
- The threat created in the mind of the alleged victima well-rounded fear the violence was about to take place.
In order to obtain a conviction for Aggravated Assault, Orange County prosecutors must prove the three factual elements of simple Assault plus:
- The threat was carried out with a deadly weapon: or
- The threat was carried out in furtherance of committing a felony.
In order to meet this burden, the state must prove, that the threat —whether it be spoken or gestured — was made with willful knowledge of the defendant, that he/she was committing the crime of assault, whether or not the defendant actually intended to complete the threat with violent acts. Pinkney v. State, 74 So. 3d 572-79 (Fla. 2d DCA 2011); Benitez v.State, 901 So. 2d 935, 937 (Fla. 4th DCA 2005).
According to Florida Statutes (Section 784.011) physical contact is not a necessary element for the conviction of Assault.
If words are used in furtherance of Assault, they must be accompanied by an overt act. While acts, by themselves, can be enough satisfy a conviction, Florida appellate courts have held that words alone are not enough to convict a defendant of Assault. The addition of an openly shown act provides the victim’s fears of imminent violence to be reasonable. Banks v. McFarland, 148 So. 3d 162, 163 (Fla. 1st DCA 2014); Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990).
Simple Assault (aka Assault):
2nd Degree misdemeanor.
- Up to 60 days in jail; or
- 6 months probation and a $500.00 fine.
3rd degree felony
- 5 years imprisonment
*Firearm use can substantially increase this time (FL 10-20 Life law)
Penalties for either type of Assault can increase if the victim is a public servant (e.g. Emergency Care Provider, Law Enforcement Officer, or Firefighter).
At Sercombe Law, we work hard to uphold your rights in the face of such accusations. No one wants to be charged with Assault, but if you find yourself in this situation Sercombe Law will work with you to approach every viable avenue to ensure you are protected against violations of your rights and unfounded or false accusations.
There are many defenses available to defendants in Assault cases. If such defenses exist, they will become aware as you work with Sercombe Law. Possible defenses and evidence to contest Assault charges (aside from those already listed above) can include among others:
- Was the threat a conditional or idle threat?
- Was the fear by the alleged victim unreasonable?
- Did the alleged victim provoke the defendant?
- Were there circumstances to indicate the threat was not imminent?
- Was the threat related to some form of defense (self, others, property, or stand your ground laws) by the defendant?
Facing prosecution for Assault can be tricky without the proper representation. For a free consultation with an experienced criminal defense attorney in Orlando, contact Sercombe Law. We routinely handle matters in Orange County and nearby jurisdictions.