Assault & Aggravated Assault

Criminal Defense Lawyer in St. Petersburg

Many people use the terms assault and battery interchangeably, but they are different crimes. Both are considered crimes of violence, and both can be prosecuted as either a misdemeanor or a felony depending on the circumstances. If the victim is a police officer, firefighter, emergency medical care provider, or is 65 years of age older, the offense is subject to being reclassified (to a more serious offense) and certain minimum mandatory sentences may also be imposed. A person may also be facing minimum mandatory sentences if he or she is a recidivist offender or if a firearm is used in the commission of the crime. For more information on sentencing guidelines, minimum mandatories, and sentencing enhancements (including Florida's 10-20-Life laws), see the Sentencing section of our website. Attorney Donald J. Kilfin has handled hundreds of assault and battery related cases as a Pinellas county state prosecutor and a St. Petersburg, Clearwater, Tampa area criminal defense attorney over the past fifteen years.
  • Assault Generally

An assault is an intentional and unlawful threat to harm another person. The threat may be in the form of words, or some act but, in any event, the accused person must have the apparent ability to carry out the threat, and the alleged victim must be placed in fear of imminent violence. Assault is a misdemeanor of the second degree. A misdemeanor of the second degree is punishable by up to six months of probation and/or sixty days in the county jail (the total sentence cannot exceed six months).

Aggravated assault is an assault wherein either (1) a deadly weapon is used; or (2) the accused person intended to commit a felony. Aggravated assault is a third degree felony, which is punishable by up to five years in state prison. Aggravated assault is a level six offense offense on the sentencing guidelines, which means the accused person will not be scoring mandatory prison unless there are other, more serious offenses before the court for sentencing, or the person has an extensive criminal history.

You should be aware that in Florida, certain sentencing enhancement may apply to aggravated assault charges. For example, where the alleged victim in the case is a firefighter, police officer, emergency medical care provider, or is 65 years of age or older, the offense is subject to being "re-classified" to a higher degree. A simple assault may be re-classified from a second degree misdemeanor to a first degree misdemeanor and an aggravated assault charge may be reclassified from a third degree felony to a second degree felony. If reclassified, the maximum applicable penalty is increased. If the charged offense is an aggravated assault, and the victim is a law enforcement officer or a person aged 65 years or older, the accused person is subject to a three year minimum mandatory sentence. If the offense is an aggravated assault, and either a deadly weapon or a firearm is used, the person may also be subject to Florida's severe recidivist sentencing statutes including Prison Releaser Re offender, Habitual Felony Offender, Habitual Violent Felony Offender, Three Time Violent Felony Offender, Violent Career Criminal, and/or 10-20-Life. The implications of each of these enhancements is set forth in greater detail below.

  • Applicable Florida Statutes

The following is a list of Florida statutes that pertain to assault related offenses, as set forth in Chapter 784:

  • Florida statutes section 784.011 provides as follows:

(1) An "assault" is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well founded fear in such other person that such violence is imminent.

(2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in 775.082 or 775.083.

  • Florida statutes section 784.021 provides as follows:

(1) An "aggravated assault" is an assault: (a) with a deadly weapon without the intent to kill; or (b) with an intent to commit a felony.

(2) Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in 775.082, 775.083 or 775.084.

  • Applicable Jury Instructions

The following is a list of each element of assault and aggravated assault offenses, which the state must prove as a condition precedent to a finding of guilt:

  • Florida Standard Jury Instruction 8.1 (Simple Assault) provides as follows:

To prove the crime of assault, the state must prove the following three elements beyond a reasonable doubt:

(1) The defendant intentionally and unlawfully threatened, either by word or act, to do violence to the victim.

(2) At the time, the defendant appeared to have the ability to carry out the threat.

(3) The act of the defendant created in the mind of the victim a well founded fear that the violence was about to take place.

  • Florida Standard Jury Instruction 8.2 (Aggravated Assault) provides as follows:

To prove the crime of aggravated assault, the state must prove the following four elements beyond a reasonable doubt. The first three elements define assault:

(1) The defendant intentionally and unlawfully threatened, either by word or act, to do violence to the victim.

(2) At the time, the defendant appeared to have the ability to carry out the threat.

(3) The act of the defendant created in the mind of the victim a well founded fear that the violence was about to take place.

(4) The assault was made with a deadly weapon or with a fully formed conscious intent to commit (crime charged) upon the victim.

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.

It is not necessary for the state to prove that the defendant had an intent to kill.

  • Reclassification of Assault Offenses

Under Florida statutes section 784.07, if an assault is committed on a police officer, firefighter, or emergency medical care provider, the degree of offense is subject to being "reclassified". In the case of a simple assault, the offense is reclassified from a misdemeanor of the second degree to a misdemeanor of the first degree. This means that the potential maximum penalty is increased from up to sixty days in the county jail and/or six months of probation to a maximum of one year in the county jail or one year of probation (the total sentence cannot exceed one year). In the case of an aggravated assault, the offense is reclassified from a third degree felony, which is punishable by up to five years in prison, to a second degree degree felony, which is punishable by up to fifteen years in prison. Also, if the alleged victim is a law enforcement officer, the person is subject to a three year minimum mandatory sentence. This means that upon conviction, the court has no choice but to sentence the accused person to three years in state prison, even where the sentencing guideline score authorizes a non-state prison sanction. Minimum mandatories and sentencing guidelines are two separate matters. An experienced St. Petersburg criminal defense attorney can provide more information on issues related to sentencing, including guidelines, enhancements, and minimum mandatories.

When the assault offense is reclassified under this section, adjudication of guilt or imposition of sentence cannot be suspended, deferred, or withheld, and the accused person is not eligible for statutory gain time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, prior to serving the minimum sentence.

Under Florida statues section 784.08, whenever a person is charged with committing an assault or an aggravated assault on a person age 65 years or older, regardless of whether the defendant knows or has reason to know the age of the victim, the offense for which the person is charged shall be reclassified as follows: in the case of an assault, from a misdemeanor of the second degree to a misdemeanor of the first degree and, in the case of an aggravated assault, from a felony of the third degree to a felony of the second degree. Additionally, a person who is convicted of an aggravated assault on a person 65 years of age or older shall be sentenced to a minimum term of imprisonment of three years. Finally, adjudication of guilt or imposition of sentence shall not be suspended, deferred or withheld.

  • Other Potential Sentencing Enhancements

Under the Prison Releasee Re-Offender statute, as set forth in s. 775.082(9)(a), a person who commits (or attempts to commit) an enumerated offense, including aggravated assault with a deadly weapon, within three years of release from a state or federal prison, must be sentenced to the statutory maximum. Thus, where a person is charged with aggravated assault with a deadly weapon, the court would have no choice but to sentence the person to five years in Florida Department of Corrections upon the entry of a guilty (or no contest) plea, or a finding of guilt by a the jury. If the offense was reclassified to a second degree felony, and the PRR enhancement was sought, then the person would be subject to a fifteen year sentence upon conviction. In cases where the PRR enhancement applies, the sentencing guidelines do not. Hence, there is no sentencing "range".

Under the Habitual Violent Felony Offender statute, as set forth s. 775.084(1)(b), a defendant who has previously been convicted of an enumerated felony, including aggravated assault with a deadly weapon, and the pending felony for which the defendant is to be sentenced was committed either: (a) while the defendant was serving a prison or other sentence that was imposed as a result of a prior conviction for an enumerated felony (including aggravated assault with a deadly weapon); or (b) within five years of the date of conviction of the last prior enumerated felony (including aggravated assault with a deadly weapon), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or other sentence that is imposed as a result of a prior conviction for an enumerated felony (including aggravated assault with a deadly weapon), whichever is later, will be subject to certain sentencing enhancements. In the case of a life felony or a felony of the first degree, the defendant may be sentenced to life and shall not be eligible for release for fifteen years. In the case of a second degree felony, for a term not exceeding thirty years, and the defendant shall not be eligible for release for ten years. In the case of a felony of the third degree, the defendant may be sentenced to a term not exceeding ten years and shall not be eligible for release for five years.

Under the Three Time Violent Felony Offender statute, as set forth in. s. 775.084(1)(c), the court must impose certain mandatory minimum terms of imprisonment if it finds that (1) the defendant has previously been convicted two or more times of an enumerated felony (or an attempt to commit an enumerated felony - including aggravated assault with a deadly weapon), and (2) the felony for which the defendant is to be sentenced is an enumerated felony (including aggravated assault with a deadly weapon) and was committed: (a) while the defendant was serving a prison sentence or other sentence imposed as a result of a conviction for an enumerated felony (including aggravated assault with a deadly weapon); or (b) within five years of the date of conviction of the last prior enumerated felony (including aggravated assault with a deadly weapon), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or other sentence imposed as a result of a prior conviction for an enumerated offense (including aggravated assault with a deadly weapon), whichever is later. The court must sentence a three time violent felony offender as follows: in the case of a felony punishable by life, to a term of imprisonment for life; in the case of a felony of the first degree, to a term of imprisonment of thirty years; in the case of a felony of the second degree, to a term of imprisonment of fifteen years; and in the case of a felony of the third degree, to a term of imprisonment of five years.

Under the Violent Career Criminal statute, as set forth in s. 775.084(1)(d), the court must impose certain mandatory terms of imprisonment if it finds that: (1) the defendant has previously been convicted three or more times for an offense in this state that is a forcible felony (including aggravated assault) or other enumerated offense; (2) the defendant has been incarcerated in a state or a federal prison; (3) the primary felony offense for which the defendant is to be sentenced is an enumerated felony (including aggravated assault), was committed on or after October 1st, 1995, and (a) while the defendant was serving a prison or other sentence that was imposed as a result of a prior conviction for an enumerated felony (including aggravated assault); or (b) within five years of the date of conviction of the last prior enumerated felony (including aggravated assault), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, or parole, or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later. Where such findings are made, the court must sentence the violent career criminal as follows: in the case of a life felony or a felony of the first degree, for life; in the case of a felony of the second degree, for a term of years not exceeding forty with a mandatory minimum term of thirty years imprisonment; in the case of a felony of the third degree, for a term of years not exceeding fifteen, with a mandatory minimum of ten years imprisonment.

Under Florida's 10-20-Life statute, as set forth in s. 775.087, any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, the conviction was for an enumerated offense, including aggravated assault, and during the commission of the offense such person actually possessed a firearm, shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted of aggravated assault, possession of a firearm by a felon, or burglary to a conveyance shall be sentenced to a minimum term of imprisonment of three years if such person possessed a firearm during the commission of the offense. Thus, where the person commits an assault using a firearm, the provision of Florida's 10-20-Life statute apply but the person is only subject to a three year minimum mandatory.

Under Florida's 10-20-Life statute, aggravated assault is unique in that the court is given the authority to avoid the imposition of the applicable minimum mandatory sentence if the court makes written findings that: (1) the defendant has a good faith belief that the aggravated assault was justifiable pursuant to chapter 776; (2) the aggravated assault was not committed in the course of committing another felony; (3) the defendant does not pose a threat to public safety; and (4) the totality of the circumstances involved in the offense do not justify the imposition of such sentence.

UPDATE: As of July 1st, 2016, aggravated assault has been deleted from the list of offenses enumerated under Florida's 10-20-Life statute. Minimum mandatory sentences are no longer applicable to aggravated assault charges. The law change does not, however, apply retroactively.


Being arrested doesn't mean you're going to be convicted. In most cases, much can be done. If you have been arrested for Assault, Aggravated Assault, or any other criminal offense in the Tampa Bay area, contact The Kilfin Law Firm, P.C. at (727) 491-5886. We are committed to providing the highest quality of legal services at affordable rates. Always have been - always will be.


  • Defenses to Your St. Petersburg, Clearwater, or Tampa Area Assault/Aggravated Assault Charges

The most viable defense in any criminal case is going to depend on the underlying circumstances. If, for example, there is some issue as to who the perpetrator is, an I.D. defense may present the best opportunity for a favorable outcome. This, obviously, would be more likely to occur in a situation where the accused and the alleged victim do not know one another, where the accused person took steps to conceal his or her identity during the commission of the crime (e.g. by wearing a mask, hat, or sunglasses) and/or where the lighting conditions were poor. Lack of witnesses to corroborate the alleged victim's accusations may also be used to raise an effective ID defense. Where the accused person asserts a lack of sufficient evidence to establish ID, a credible alibi will go a long way to bolster the accused person's position in that regard.

Where the accused person and alleged victim do know each other, and where there have been prior difficulties between them, a fabrication defense may be the most viable. Unlike the identity defense, which asserts that the wrong person has been charged, a fabrication defense is based on an assertion that the crime never occurred in the first place. Where it can be shown that the motive to fabricate is plausible, and/or the alleged victim has recanted allegations against the accused person in the past, this type of defense can be very effective. Prior recanted allegations typically come up in domestic related cases. Of course, where there are independent corroborative witnesses to the incident, another approach may need to be explored.

If there is no proof issue with regard to the identity of the accused person, and it can be established that there is some merit of truth to the allegations, your criminal defense attorney will next look for factual weaknesses that relate to elements of the crime. For example, the crime of assault requires proof, beyond a reasonable doubt, that the victim was placed in imminent fear of violence. If it can be shown that the threat was conditional, there may be a proof problem for the state. A conditional threat would require the victim to do some overt act before he or she would be subject to violence. Where, for example, the defendant says "if you say that again, I will hit you", the violence is not imminent unless and until the victim says something specific. Also, the defendant has to have the ability to carry out the threat. If it can be shown that the defendant had no real means of carrying out the threat, the defense may be in a position to prevent the charge from being filed, or may have leverage to negotiate a more favorable resolution in the case. An example may be where the threat is made over the telephone from half way across the country. Another example may be where an older and more feeble defendant threatens a much younger, and more physically capable "victim". Again, the underlying circumstances will dictate the most viable defense: if the older and more feeble defendant threatens the younger and more robust victim with a firearm, the odds of being able to carry out that threat increase dramatically and another approach may need to be considered in providing an effective defense.

Other common, and often viable defenses in Assault or Aggravated Assault cases include defense of self, defense of property, or defense of another. The circumstances under which a person may use deadly force differ from the circumstances under which a person is justified in the use of non-deadly force. 'Deadly force" is force likely to cause death or great bodily harm. Generally speaking, the use of deadly force is justifiable only where the defendant reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself while resisting (1) another's attempt to murder him or her; (2) any attempt to commit a felony upon him or her; or (3) any attempt to commit a felony upon or in any dwelling, residence, or vehicle occupied by him or her. Non-deadly is force not likely to cause death or great bodily harm. A qualified St. Petersburg criminal defense attorney can provide additional information on the circumstances under which a person may be justified in the use deadly force, the use non-deadly force, and Florida's "stand your ground" laws.

In situations where the accused is facing one or more of the recidivist sentencing enhancements outlined above, the crux of the defense may involve attacking the sufficiency of the predicate requirements. I have had success with this approach in the past and, given the potentially devastating implications of Florida's sentencing enhancements, this is always something a criminal defense attorney will want to carefully examine in representing a client.

The potential defenses in assault and/or aggravated assault cases are plenary and may be raised effectively anywhere from the pre-charge (or even pre-arrest) stages through sentencing. If you are facing an assault or aggravated assault charge in the Tampa Bay area, an experienced criminal defense attorney can help.

  • Resources

The following is a list of outside sources, prior blog posts, and other website sections on topics related to assault and aggravated assault offenses:

  • Links
  1. HG. Org: St. Petersburg Assault & Aggravated Assault Defense Attorney
  2. HG. Org: St. Petersburg Domestic Violence Defense Attorney
  3. HG. Org: Florida Sentencing Enhancements Pt. 1: Prison Releasee Re offenders
  4. HG. Org: Florida Sentencing Enhancements Pt. 2: Habitual Felony Offenders and Habitual Violent Felony Offenders
  5. HG. Org: Florida Sentencing Enhancements Pt. 3: Three Time Violent Felony Offenders and Violent Career Criminals
  6. HG. Org: Florida Sentencing Enhancements Pt. 4: 10-20-Life
  • Blog Posts
  1. Do I Need a St. Petersburg Criminal Defense Attorney?
  2. They Never Read Me My Rights - Can My Charge Be Dismissed?
  3. Pre-Trial Release in Florida: The Basics
  4. Speedy Trial in Florida: An Overview
  5. The Aggravated Assault Exceptions to Florida's 10-20-Life Statute
  6. Florida Sentencing Guideline Departures: Youthful Offenders
  7. What is a Stand Your Ground Immunity Motion?
  8. Florida Sentencing Guideline Departures: Youthful Offenders
  9. Florida Sentencing Guideline Departures: Unsophistcated/Isolated/Remorse
  10. Florida Sentencing Guideline Departures: Need for Restitution
  11. Florida Sentencing Guideline Departures: Legitimate, Uncoerced Plea Bargain
  12. The Aggravated Assault Exceptions to Florida's 10-20-Life Statute: 2016 Updates
  13. Florida Places Burden of Proof on the State in Stand Your Ground Immunity Hearings
  • Related Sections
  1. Alibi as a Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
  2. Justifiable Use of Force
  3. Affecting the Filing Decision
  4. Pre-Trial Diversion
  5. Withholding of Adjudication
  6. Plea Negotiations
  7. Defensive Motions
  8. Trial
  9. Sentencing
  10. Probation Violations
  11. Violent Felony Offenders of Special Concern
  12. Sealing & Expunging
  • The Bottom Line

What distinguishes an assault offense from a battery offense is that the latter requires some degree of physical contact, whereas the former does not. Assault is simply a threat, by word or act, to do violence to another. The threat must be credible, it must be imminent, and the accused person must have the apparent ability to carry the threat out. If the threat is made during the commission of a felony, or if a deadly weapon is used, the crime becomes an aggravated assault which, in Florida, is a felony. Prior to July 1st, 2016, if the deadly weapon was a firearm, the person was subject to Florida's 10-20-Life provisions. For aggravated assault offenses committed after July 1st, 2016, 10-20-Life does not apply and there are no applicable minimum mandatory sentences. Other sentencing enhancements may apply based on the alleged victim's age, professional status (i.e. a police officer) or on the accused person's prior criminal history and/or date of release from prison (if applicable) or other court imposed sanction. There are a number of potential defenses that may be effectively raised on behalf of an accused person in assault cases, which will depend on the underlying circumstances of the case. If you have been arrested or charged with an assault offense, The Kilfin Law Firm, P.C. can help. Our St. Petersburg criminal defense attorney has handled countless assault charges over the past fifteen years, including six years as a Pinellas county state prosecutor, and is well versed in this area of the law.