Assault and Aggravated Assault are serious crimes that need proper legal counsel. If a weapon was involved in the assault, the penalties can be more severe, and you may be looking at a felony charge, so it is important to speak with a criminal defense attorney that has your best interests in mind. We understand the stressful and emotional upheaval that comes with being accused of a violent crime. Furthermore, our Delray Beach criminal defense attorneys are committed to obtaining the most favorable outcome for you.
Assault vs. Aggravated Assault in Delray Beach
The main difference between Assault and Aggravated Assault charges stems from the presence of a weapon. In order to convict someone of Assault, the prosecutor must prove ALL three elements beyond a reasonable doubt:
- The Defendant intentionally and unlawfully threatened, either by word or act, to do violence to the victim.
- At the time, the Defendant appeared to have the ability to carry out the threat.
- The act of the Defendant created in the mind of the victim a well-founded fear that the violence was about to take place.
In order to convict the defendant of Aggravated Assault, a fourth element must be proven beyond a reasonable doubt:
- The assault was made with a deadly weapon or the assault was made with a fully-formed, conscious intent to commit the felony upon the victim.
Assault and Aggravated Assault also carry different penalties in the state of Florida. Pursuant to Florida Statute 784.011, Assault is a second degree misdemeanor. The maximum penalty for a second degree misdemeanor is 60 days incarceration in the county jail. However, a Defendant may also receive probation for up to 6 months, or some combination of incarceration and probation. A Defendant may also be required to attend an anger management program, have no contact with the victim and pay up to $500 in fines.
Pursuant to Florida Statute 784.021, Aggravated Assault is a third degree felony. The maximum penalty for a third degree felony is 5 years in state prison. However, by negotiating with the prosecutor assigned to the case, we may be able to reach an agreement where the Defendant receives probation without incarceration. We may also be able to get the felony charge reduced to a misdemeanor or get the charges dropped completely. A reduction from a felony to a misdemeanor often depends on a Defendant's prior record, the strength of the State's case, the cooperation of the alleged victim, and facts of the case. A conviction for Aggravated Assault with a Firearm requires a 3 year mandatory minimum sentence.
What is a deadly weapon?
A weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm. Courts have determined that pocket knives, beer bottles and cars can be considered deadly weapons, if used with the intent to commit imminent violence on another.
Defenses to Assault and Aggravated Assault
There are many different legal strategies to defending an Assault or Aggravated Assault charge. The experienced Assault lawyers at Bottari & Doyle will investigate thoroughly to find any weaknesses in the prosecutor's case. Common defenses include:
- Threat to commit the violent act was in the future. Aggravated Assault requires the victim to experience an imminent fear. In other words, the victim must believe that violence is about to happen. For example, if a Defendant says to a victim, “I'm going to punch you in two weeks,” the Defendant has not committed an assault because the Defendant is threatening to commit violence in two weeks. The threat is not imminent.
- Victim's fear of violence was unreasonable Aggravated Assault requires the victim's fear of violence to be reasonable. An unreasonable fear does not give rise to an aggravated assault. The State must prove beyond a reasonable doubt that the Defendant's act created in the mind of the victim a “well-founded” fear AND that the Defendant's violent act was imminent. What if a Defendant was running towards the alleged victim with a bat, while the victim's back was facing the Defendant? The victim could not see the Defendant, and thus could not have a well-founded fear of violence. In this situation, the Defendant did not commit an Assault. Additionally, the State must prove that the victim's fear was objectively reasonable. For example, if a Defendant says to an alleged victim, “I'm going to throw this balloon at you”, it would be impossible to believe that the victim had a well-founded fear of violence because throwing balloons doesn't hurt anyone. Furthermore, the victim must believe that violence was imminent.
- Defendant did not have the ability to carry out the attack. What if a Defendant said to an alleged victim, “I'm going to hit you with this bat!” However, the Defendant did not have a bat in his possession, and a bat was not in the Defendant's vicinity. Neither the alleged victim, nor any witnesses could say that the Defendant appeared to have the ability to carry out the threat of hitting the alleged victim with the bat, because the Defendant could not readily obtain a bat.
- Defendant did not intend to commit the violent act. Intent is a question for the jury based on the factual circumstances of the case. For example, if a Defendant was just “joking around,” not intending to commit a violent act towards another, and the jury believed that to be true, the Defendant is not guilty of assault.
Don't give up on your case too early. Depending on the circumstances, we may be able to get the felony charge reduced to a misdemeanor or get the charges dropped completely. If you've been arrested for Assault or Aggravated Assault and need a Delray Beach assault lawyer, contact Bottari & Doyle to start building your defense.