What is the Difference between Assault vs Aggravated Assault in Florida?
What is assault in Florida? (Fla. Stat. §§784.011)
In Florida, an “assault” is described as “an intentional, unlawful threat by word or act to do violence” to another person by someone who has the ability to carry out the threat of violence and who - in doing so - creates well-founded fear in the target of the threat that they are actually in danger or violence is imminent.
As stated in Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990): "A person's mere intention to commit an assault is not enough; there must be some overt act sufficient to demonstrate a threat directed at the person placed in fear."
Whoever commits an assault shall be guilty of a second-degree misdemeanor, punishable by up to 60 days in jail and/or six months probation and a $500 fine in Florida.
What is aggravated assault in Florida? (Fla. Stat. §§ 784.021)
In Florida, the difference between “assault” and “aggravated assault” is that aggravated assault includes not only that the person committed acts that constitute assault, but that that person did so either: with a deadly weapon* without intent to kill, or with an intent to commit a felony.
Florida statute defines a weapon as any “dirk, knife, metallic knuckles, slingshot, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocket knife, plastic knife, or blunt-bladed table knife.” Depending on the situation though, sometimes Florida prosecutors can successfully argue that a weapon, while traditionally not deadly, can be used in a deadly manor and therefore classify it as a deadly weapon.
If an aggravated assault crime is committed in Florida, the person is then facing a third-degree felony, punishable by a term of up to 5 years imprisonment in a Florida state prison, and a fine of up to $5,000.
If an individual commits assault with a firearm (this is a specific deadly weapon) they could face a minimum sentence of 3 years in prison.
This mandatory minimum sentence does not apply to other specific deadly weapons. If an assault is committed during the occurrence of another felony, then the assault is upgraded to an aggravated assault.
Differences in Assault vs. Aggravated Assault Convictions in Florida
Assault: Someone who commits an assault crime is facing a second-degree misdemeanor.
Aggravated Assault: Someone who commits aggravated assault faces a third-degree felony.
Defenses to Assault Cases in Florida
Per the stated descriptions of what constitutes assault within Florida statute, specific defenses can be made when it comes to criminal assault cases -- for the charge to “stick” the alleged crime must include certain elements and they can be defended against by a: (1) conditional threat, (2) idle threat, and (3) unreasonable fear
Remember that in order for an act to be defined as assault, there must be proof of three elements:
- An intentional, unlawful threat
- An apparent ability to carry out the threat
- Creation of a well-founded fear the violence is imminent
Keeping this in mind if one of the three elements is lacking, it is possible to use this in a trial in order to receive a dismissal of a case. One such example of this occurred in the case of H.W. v. The State of Florida, 79 So. 3d 143 (Fla. 3rd DCA 2012), a 2012 case in which it was concluded that although there was sufficient evidence to show that the appellant (H.W.) made an intentional, unlawful threat and that it may have even created a well-founded fear, that the appellant’s threat that something would happen “that day” did not create a well-founded fear that violence was imminent (or that the defendant would do something)