Assault & Battery FAQ | Clearwater - Tampa

If you're facing criminal charges for assault and battery, you most likely have a litany of questions regarding your case. We have handled thousands of assault and battery cases and our attorneys know how stressful this time may be for you. It is our goal to ensure you obtain the answers you deserve, as well as give you the representation and assistance you need to ensure a successful outcome for your case.

If you have questions related to your specific case, you can contact us 24/7 for a free case review.

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Here are some common questions that our firm receives from clients involved in assault and battery cases:

What is assault?

A simple assault is the intentional, unlawful threat to do violence to another person while having the apparent ability to carry out the threat and as a result, creating a well-founded fear in the other person. Simple assault, usually charged as a misdemeanor, is the least serious form of assault. An assault can be by word or by an act. Where assault is a physical attack, pushing someone or slapping someone in an argument are instances of simple assault. Penalties for Assault. Florida law classifies Simple Assault as a second-degree misdemeanor, with penalties of up to 60 days in jail or 6 months probation, and a $500.00 fine.

What is battery?

A battery occurs when a person actually and intentionally touches or strikes another person against the will of that person or intentionally causes bodily harm to another person. In Florida, battery is governed by Section 784.03 of the state's statutes. You can only be convicted of misdemeanor battery if the prosecution can prove, beyond a reasonable doubt, that each element of battery was present in your actions. The prosecution must prove actual, and intentional, touching or striking of another person; and that no consent had been given for the contact in question.

Do I need an attorney for an assault or battery charge?

When dealing with assault and battery charges, get an attorney as soon as possible. A conviction can have serious consequences for your life, now and in the future. Even in small cases, you need a lawyer. Your case matters and you should get the best legal advice you can. Often times, information can be submitted to the state attorney's office that was not previously given during the investigation. Mitigating circumstances can be explained early on in an effort to encourage the state attorney's office to drop the charges.

Is an assault a misdemeanor or a felony?

A simple assault is a misdemeanor. An aggravated assault is a felony. The difference between an assault and an aggravated assault is that an aggravated assault involves the use of a weapon. The range of possible penalties depends on whether a weapon was used and what type of weapon was used. The use of a firearm will carry stricter penalties including some minimum mandatory prison sentences depending on how the firearm was used.

What makes a battery a felony?

  • Prior Battery conviction – If you have been convicted of one prior battery charge whether it is a misdemeanor or a felony, you may be charged with felony battery upon your second battery arrest.  This is a third-degree felony punishable by up to five years in prison.
  • Aggravated Battery – You may be charged with a felony battery if the battery caused great bodily harm, permanent disability or permanent disfigurement.
  • Aggravated Battery with a Weapon – A battery involving a weapon or the intent to cause great bodily harm or permanent disfigurement is considered aggravated battery which is a felony.
  • Battery on an Elderly Person – When the victim is over the age of 65, and the defendant knew or should of know the age of the victim, he or she may be charged with felony battery.
  • Battery on a Law Enforcement Officer or Medical Person – A battery committed against a law enforcement officer or a medical person may be charged as a felony battery.
  • Battery Involving children – Felony battery charges can result in certain cases where the child is a victim.  See our discussion under sex crimes and violent crimes for more information.

What Defense Strategy works best for an Assault or Battery Charge?

  • There are many defenses that an Assault and Battery Lawyer can provide. The most common defense is self-defense. In other words, you were defending yourself during the commission of what the state attorney has charged as an assault or battery. You may have been defending another person. Many factors must be evaluated before you settle for any offer the state attorney's office has given to resolve your case, including but not limited to:

    • Is the charge a Felony or a Misdemeanor?
    • Is the charge filed in a way that qualifies for Sealing or Expunction?
    • Will the charge have any effect on your living arrangements?  It is important to know that most rental agencies and apartment companies do a background check.  If you are currently living in an apartment will entering a plea to the charge initiate an eviction notice?  Will you be able to rent in the future if you are convicted as charged?
    • Does the victim wish to prosecute?
    • Was the victim a family member?

Can I have a jury trial on a misdemeanor battery?

Absolutely, everyone charged with a crime in the state of Florida is entitled to a trial by jury. Powers Sellers & Finkelstein have represented thousands of Criminal Cases including Assault and Battery charges in Florida and know the law. Trust in our Firm to provide the Legal Counsel you deserve.

The victim does not want to prosecute, will the state drop the charges?

If an alleged victim does not wish to prosecute, he or she may file a request not to prosecute. Although the prosecutor takes a victim's wishes into consideration, there is no guarantee that the charges will be dropped. You should hire an experienced assault and battery defense attorney to represent you so that all of your possible defenses are explored. Named victims may not be credible because they may have a criminal record and/or they may have a reputation in the community for violence. These scenarios can have a tremendous effect on your case if presented properly and promptly to the prosecuting agency.

I was arrested during a Baker Act, is that legal?

Yes – law enforcement may arrest you for battery if the act is committed during the process of a Baker Act. Additionally, you may be arrested if you are being committed under a Marchman Act as well. Typically, the alleged victims in these cases are law enforcement officers or medical personnel. When the alleged victims fall into these categories, the charge becomes a felony. It is recommended that you consult an experienced battery defense attorney if you are arrested for these types of charges because there are numerous defenses that should be explored.

Do I have a defense if I go to trial?

If you have decided to set your case for trial you should know what types of defenses may be available to you for your assault or battery case.  Hiring an experienced assault and battery defense attorney is the first step.  We are highly trained as experienced assault and battery defense attorneys who will fight for your rights.  You may have one or more defenses that can be asserted.  The following is a list of common defenses for assault and battery cases:

  • Self-defense
  • Defense of others
  • Alibi
  • Mutual combat
  • Accidental touching/lack of intent

Do I need a lawyer if charges have not yet been filed?

Early intervention is extremely important if you have been arrested for a battery charge. There are always two sides to every story- sometimes more! Your side of the story is important but do not try to tell your side without the assistance of an attorney. Everything you say can and will most certainly be held against you. Exercise your right to remain silent and let us do the work for you.

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Powers Sellers & Finkelstein is committed to answering your questions about Criminal Defense law issues in Florida. We offer a free consultation and we'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.