Assault and Aggravated Assault Charges in St. Petersburg, Clearwater, and Tampa

In Florida, an assault is basically a threat to harm another person. The threat must be made intentionally, and can be in the form of words, actions, or a combination of the two. Also, the person making the threat must have the apparent ability to carry it out, and the person being threatened must be placed in fear that violence is imminent. Thus, a conditional threat will not ordinarily satisfy the basis for a prima facie case of assault. For example, if A says to B, "I will hit you if you say that again", the threat is conditional in that B will not be in danger of violence unless B does (or says) something first. Assault in Florida is not a "contact" offense; if the accused makes intentional and offensive contact

with the alleged victim, the appropriate charge would be "battery".

A simple assault is a second degree misdemeanor. This means that upon conviction, the court cannot impose a period of probation that exceeds six months, or a period of incarceration that exceeds sixty days. A second degree misdemeanor is the most benign level of criminal offense in Florida.

A person commits the crime of aggravated assault if he or she commits an assault with a deadly weapon, or or with the intent to commit a felony. Under Florida law, a weapon is deemed a "deadly weapon" if it is used, or threatened to be used, in a manner likely to produce death or great bodily harm. Aggravated assault is a felony of the third degree, which means that the court, upon conviction, can sentence the accused to a term of imprisonment up to five years. In many instances, a person who commits an aggravated assault will not be facing the maximum penalty. Of course no two cases are alike and both the state and the judge will consider the totality of the circumstances in determining an appropriate sentence. This often includes the accused person's criminal history (if any) and victim input. Again, depending on the circumstances, the accused person may be eligible for a diversion program or a withhold of adjudication.

Prior to July 1st, 2016, if the deadly weapon used in the commission of an aggravated assault was a firearm, the accused person was subject to the provisions of Florida's 10-20-Life statute. Effective July 1st, 2016, aggravated assault is deleted from the list of offenses to which 10-20-life applies and minimum mandatory sentences are no longer applicable.

Also, the offense of aggravated assault on a law enforcement officer, firefighter, or an emergency medical care provider will, upon conviction, result in the imposition of a three year minimum mandatory sentence. The accused must have known that the victim was a law enforcement officer, firefighter, or emergency medical care provider at the time the crime was committed, and the victim must have been engaged in the lawful performance of his or her duties. You should also be aware that the offense is reclassified from a felony of the third degree to a felony of the second degree. This means that the maximum penalty is increased from five to fifteen years.

In almost all instances, the court is without authority to impose a sentence that is less than the minimum mandatory (there are some narrow exceptions in drug trafficking cases and in cases where the accused is deemed a "youthful offender"). To obtain a disposition that does not involve a minimum mandatory, the state must either file the charge in a manner that does not invoke it, or amend the charge after it is filed. This requires some negotiation, but, where warranted, the state will usually consider it. Of course, in any felony case, the sentencing guideline range must also be considered. This is an issue separate and apart from any applicable minimum mandatory sentence.

If you have been arrested for any assault related offense in the Tampa Bay area, you should consult with a criminal attorney as soon as possible to discuss the allegations, potential defenses, and what options may be available to you.

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ABOUT THE AUTHOR: Donald J. Kilfin, The Kilfin Law Firm, P.C.
Attorney Donald J. Kilfin is a former Pinellas county state prosecutor. He owns and operates The Kilfin Law Firm, P.C., a Tampa Bay area DUI and criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, and Bradenton.

Copyright The Kilfin Law Firm, P.C.



Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.