An assault occurs when somebody intentionally and unlawfully threatens, either by word or by act, to do violence to another person. At the time, the offender must appear to have the ability to carry out the threat. And finally, the act of the offender must create fear in the mind of the alleged victim that the violence was about to take place.
In Florida, simple assault is a second-degree misdemeanor, punishable by 60 days in jail, 6 months probation, and a $500 fine.
However, aggravated assault, the felony charge, has an additional element in that the assault was made with either a deadly weapon (or firearm) or the assault was made with the intent to commit a crime, such as a robbery.
One of the problems with an aggravated assault charge is that if the accused pleads guilty or no contest, they are ineligible to have their criminal record sealed, even if they receive a withhold of adjudication. However, if the charge is dismissed or no actioned, you may still get your record expunged should you otherwise qualify.
This is because the State of Florida considers aggravated assault to be a disqualifying offense with respect to having one's criminal record cleaned. Click here to learn more about eligibility to have your record expunged or sealed.
For purposes of aggravated assault, a "deadly weapon" can include a knife, a baseball bat, a rock, or anything else that can be used to inflict serious bodily harm.
If the weapon is a firearm, then a mandatory sentence of 3 years applies. It is up to a good criminal defense attorney to get that mandatory sentence waived by the State Attorney's Office.
Fortunately, aggravated assault has many defenses. If you read my description of the charge above, you will see that the language is somewhat ambiguous.
For instance, it is not an assault if somebody threatens to do something later. If it's two o'clock and I say to you, "I'm gonna beat you up at five o'clock," it is not an assault. By my words I may be threatening to harm you with violence, but by stating I intend to do so at a later time, I am not demonstrating an apparent ability to carry out that threat nor is the harm imminent.
That is just one of many ways the wording of the statute can be used in your favor. If you threaten somebody from afar, can you physically carry out the act instantly? If you shout at someone fifty feet away, are you really placing them in imminent danger?The possibilities are endless. A talented criminal lawyer with experience in aggravated and even simple assault cases can sometimes use the law's own wording to your advantage. Even better, if you retain a criminal attorney at the bond stage of the case, clever argument made by your attorney may be able to convince a judge that no probable cause exists for the charge. The judge will then release you on your own recognizance (ROR).
When an aggravated assault is charged but it is clearly a case of self-defense, Florida's Stand Your Ground law applies. If you pull a gun on somebody but that person was breaking into your home, your occupied car, or threatening you in such a manner that you felt deadly force was the only way to save your life, you may have a complete defense to your charge.
Aggravated assault, however, is not taken lightly. It is a crime of violence, and the State Attorney's Offices in Miami-Dade County and Broward County take it seriously. Penalties range from pretrial intervention (PTI), should the alleged victim agree and only if the facts do not allege a firearm, all the way up to time in prison. If you are enhanced under any of Florida's "career criminal" statutes (habitual felony offender, habitual violent offender, violent career criminal, three-time violent offender, or prison releasee reoffender), you may face up to 15 years in prison.
If a simple assault is committed against a police officer, the charge becomes a first-degree misdemeanor, punishable by up to 364 days in jail. If an aggravated assault is committed against a police officer, the charge becomes a second-degree felony punishable by up to 15 years.
Additionally, many of Florida's notorious "road rage" cases involve the charge of aggravated assault, with the car as the weapon. That's correct. If you use your car to run someone off the road, or otherwise intentionally put them in fear, a car is considered a deadly weapon for purposes of this law. You can and will likely be charged with aggravated assault should you use your car in an effort to frighten somebody.
Aggravated assault is serious. Don't take your chances. Call my office today to discuss your case.