Battery & Aggravated Battery Defense

• Florida statutes § 784.03 (Battery; felony battery) provides as follows:

(1)(a) The offense of battery occurs when a person: 1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person.

(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) A person who has one prior conviction for battery, aggravated battery, or felony battery, and who commits any second or subsequent battery commits a felony of the third degree, punishable as provided in s. 775.082, 775.083, or 775.084. For purposes of this section, "conviction" means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendre is entered.

• Florida statutes § 784.041 (Felony battery; domestic battery by strangulation) provides as follows:

(1) A person commits the offense of felony battery if he or she: (a) actually and intentionally touches or strikes another person against the will of the other; and (b) causes great bodily harm, permanent disability, or permanent disfigurement.

(2)(a) A person commits domestic battery by strangulation if the person knowingly and intentionally, against th will of another, impedes the normal breathing or circulation of the blood of a family or household member or a person with whom he or she is in a dating relationship, so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person. This paragraph does not apply to any act of medical diagnosis, treatment, or prescription which is authorized under the laws of this state. (b) As used in this subsection, the term: 1. "Family or household member" has the same meaning as in s. 741.28. 2. "Dating relationship" means a continuing and significant relationship of a romantic and intimate nature.

(3) A person who commits felony batter or domestic battery by strangulation commits a felony of the third degree, punishable as provided in s. 775.082, 775.083, or 775.084.

• Florida statutes § 784.045 (Aggravated Battery) provides as follows:

(1)(a) A person commits aggravated battery who, in committing battery: 1. intentionally or knowingly causes great bodily harm, permanent disability or permanent disfigurement; or 2. uses a deadly weapon. (b) A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.

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

Applicable Jury Instructions

The following is a list of each element of each variation of battery offense, which the state must prove as a condition precedent to a finding of guilt:

• Florida Standard Jury Instruction 8.3 (Simple Battery) provides as follows:

To prove the crime of battery, the state must prove the following element beyond a reasonable doubt (Give 1 or 2 as applicable):

(1) The defendant intentionally touched or struck the victim against his or her will.

(2) The defendant intentionally caused bodily harm to the victim.

• Florida Standard Jury Instruction 8.4 (Aggravated Battery) provides as follows:

To prove the crime of aggravated battery, the state must prove the following two elements beyond a reasonable doubt:

(1) The defendant [intentionally touched or struck the victim against his or her will][intentionally caused bodily harm to the victim].

(2) The defendant, in committing the battery: a. intentionally or knowingly caused [great bodily harm to victim][permanent disability to victim][permanent disfigurement to victim]. b. used 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.

• Florida Standard Jury Instruction 8.4(a)(Aggravated Battery Pregnant Victim) provides as follows:

To prove the crime of aggravated battery, the state must prove the following three elements beyond a reasonable doubt. The first element is a definition of battery.

(1) The defendant [intentionally touched or struck victim against her will][intentionally caused bodily harm to victim].

(2) The victim was pregnant at the time.

(3) The defendant in committing the battery knew or should have known that the victim was pregnant.

• Florida Standard Jury Instruction 8.5 (Felony Battery) provides as follows:

To prove the crime of felony battery, the state must prove the following two elements beyond a reasonable doubt:

(1) The defendant actually and intentionally touched or struck the victim against his or her will; and

(2) The defendant caused the victim great bodily harm, permanent disability, or permanent disfigurement.

• Florida Standard Jury Instruction 8.5(a) (Domestic Battery by Strangulation) provides as follows:

To prove the crime of domestic battery by strangulation, the state must prove the following three elements beyond a reasonable doubt:

(1) The defendant knowingly and intentionally impeded the normal [breathing][circulation of the blood] of the victim against his or her will [by applying pressure on the throat or neck of the victim][by blocking the nose or mouth of the victim].

(2) In doing so, the defendant [created a risk of great bodily harm to the victim][caused great bodily harm to the victim].

(3) The defendant was [a family or household member of the victim][in a dating relationship with the victim].

"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit

"Dating relationship" means a continuing and significant relationship of a romantic or intimate nature.

Reclassification of Battery Offenses

Like assault offenses, battery offense are subject to reclassification where the victim is a certain type of public servant or 65 years of age or older. Under Florida statutes section 784.07, if a simple battery is committed on a police officer, firefighter, or emergency medical care provider, the offense is "reclassified" from a first degree misdemeanor (punishable by up to a year in the county jail) to a third degree felony (punishable by up to five years in Florida state prison). If the person possessed a firearm during the commission of the offense, he or she is subject to a three year minimum mandatory term of imprisonment. If the person possessed a semiautomatic firearm with a high capacity detachable box magazine, or a machine gun, he or she is subject to an eight year minimum mandatory sentence.

In the case of an aggravated battery, the offense is reclassified from a second degree felony (punishable by up to fifteen years in state prison) to a first degree felony (punishable by up to thirty years in state prison). A person convicted of aggravated battery of a law enforcement officer shall be sentenced to a minimum term of imprisonment of five years.

When the battery 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 a battery or an aggravated battery 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 a battery, from a misdemeanor of the first degree to a felony of the third degree and, in the case of an aggravated battery, from a felony of the second degree to a felony of the first degree. A person who is convicted of an aggravated battery 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.

You should also be aware that Florida statute section 775.087 (Florida's 10-20-Life laws) contain a provision for the reclassification of certain offenses, including aggravated battery, and provides as follows:

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony, the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: (a) in the case of a felony of the first degree, to a life felony; (b) in the case of a felony of the second degree, to a felony of the first degree; and (c) in the case of a felony of the third degree, to a felony of the second degree.

For purposes of sentencing under chapter 921 and determining incentive gain time eligibility under chapter 944, a felony offense which is reclassified under this section is ranked one level above the ranking under section 921.0022 or s. 921.0023 of the felony offense committed.

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 battery, 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 battery, the court would have no choice but to sentence the person to fifteen 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 first degree felony, and the PRR enhancement was sought, then the person would be subject to a thirty year sentence upon conviction.

Not every felony-level battery offense will trigger all of Florida's recidivist sentencing provisions. For example, a charge of Battery on a Law Enforcement Officer, a third degree felony, will not result in a PRR enhancement, whereas Aggravated Battery will. An experienced St. Petersburg area criminal defense lawyer can provide a more detailed explanation.

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 battery, 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 battery); or (b) within five years of the date of conviction of the last prior enumerated felony (including aggravated battery), 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 battery), 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 battery), and (2) the felony for which the defendant is to be sentenced is an enumerated felony (including aggravated battery) 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 battery), 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 battery), 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 battery) 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 battery), 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 battery); or (b) within five years of the date of conviction of the last prior enumerated felony (including aggravated battery), 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 an enumerated felony or an attempt to commit an enumerated felony (regardless of whether the use of a weapon is an element of the felony), including aggravated battery, 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. Any person who is convicted of an enumerated felony, or an attempt to commit an enumerated felony (regardless of whether the use of a weapon is an element of the offense), including aggravated battery, and during the course of the commission of felony such person discharged a firearm, shall be sentenced to a minimum term of imprisonment of 20 years. Any person who is convicted of an enumerated felony, or an attempt to commit an enumerated felony (regardless of whether the use of a weapon is an element of the offense), including aggravated battery, and during the course of the commission of the felony such person discharged a firearm, and as a result of the discharge death or great bodily harm was inflicted on any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

Arrested for a battery related offense in the Tampa Bay area? An experienced St. Petersburg criminal defense attorney can help fight your charges. Attorney Donald J. Kilfin has successfully defended countless individuals throughout Pinellas, Hillsborough and Pasco counties in these types of cases. Call The Killing Law Firm, P.C. at (727) 491-5886 to discuss your situation.

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

As stated throughout this website, the most viable defense in a criminal case will often depend on the underlying factual circumstances. As a St. Petersburg criminal defense attorney, and former Pinellas county state prosecutor, I have handled hundreds of battery related cases, both domestic and non-domestic in nature. As a prosecutor, I tried battery cases against some of the areas most experienced criminal defense attorneys and learned, first hand, the defense strategies that should be utilized, on behalf of an accused person, in these types of cases.

One of the first lines of defense is to explore the circumstances under which an accused person was identified as the responsible party. Did the alleged victim get a clear look at the person who committed the crime? Does the victim know that person? Was a photo pack presented to the victim as a means of identifying the accused? How long after the alleged crime occurred was the identification made? Was the photo pack impermissibly suggestive? Did the alleged victim identify more than one potential suspect? Were there eyewitnesses to the crime? These are questions your criminal defense attorney will want to explore and seek answers to. Identity may, at first blush, appear to be a non-issue. You may be surprised, however, to learn how often it comes into play. For example, where the accused person is alleged to have intentionally struck the victim (or the victim's vehicle) during a purported road rage incident, and all the victim got was a tag number, identity is an issue. Just because the registered owner's vehicle was involved in the offense, does not mean that the owner was driving the vehicle at the time. If there is a solid alibi, the identity defense becomes that much more plausible.

As with all criminal cases, if an admission is made, the underlying circumstances must be carefully scrutinized. Was the accused person in custody at the time of questioning? Were the questions posed in an effort to elicit an incriminating response? Was the statement made voluntarily or was it the result of coercion? Did the accused person unequivocally request an attorney and, if so, did questioning cease? In many instances, a suppressed confession can significantly impact the strength of the state's case against the accused.

In Florida, there are many different classifications of battery offenses which range in severity from first degree misdemeanors to punishable by life felonies (where, for example, burglary/battery is charged). In its simplest terms, a battery is the intentional touching or striking of another person against that other person's will, or intentionally causing bodily harm to another person. Although a simple battery requires just a "touching", the underlying circumstances may not warrant the filing of a formal charge where some form of touching occurs. A former client called me recently and advised that he was in a local grocery store, saw a social acquaintance, and patted the acquaintance on the back while saying hello. The acquaintance immediately complained of back pain. Later that day, two police officers showed up at my former client's front door to question him about what occurred. My former client was entirely truthful in his response. Given the circumstances, an arrest was not made and I don't believe any further action will be taken with regard to criminal prosecution. Even where a touching occurs, the circumstances may be so innocuous and benign that formal prosecution is simply not warranted.

Other types of battery offenses require proof of the victim's status based on, for example, age, profession, or, in the case of a female, pregnancy. Battery on a Person Age 65 Years or Older, Battery on a Law Enforcement Officer, and Battery on a Pregnant Female are all felony offenses in Florida. In many instances, the offense would be prosecuted as a misdemeanor but for the victim's age, profession, or some other characteristic. Here, your criminal defense attorney would want to look for potential proof issues related to the victim's status, in an effort to avoid a felony prosecution. Was the victim in fact over 65 years of age at the time the crime was committed? Was the police officer on duty and in uniform at the time the crime was committed? Did the defendant otherwise have reason to know that the alleged victim was a law enforcement officer? Did the accused know that the alleged victim was pregnant? These, of course, would be in addition to some of the other potential issues that would need to be explored, as set forth above.

In cases where an aggravated battery is charged, your criminal defense attorney will want to explore whether the injuries sustained by the alleged victim are severe enough to support the charge. Often times, obtaining the alleged victim's medical records will provide some important insight on this issue. The records can usually be obtained by subpoena (after notice to the alleged victim is sent, and a hearing is held in situations where the victim objects to the issuance of the subpoena). More often than not, however, the prosecutor will have already obtained the records and will turn them over to the defense as part of discovery. If the aggravated battery charge is based on a purported touching or striking with a deadly weapon, your criminal defense attorney will want to examine whether the instrumentality meets the statutory definition of a "deadly weapon". This analysis usually turns on the manner in which the item was used. Where the injury is de minimus (or where there is no injury at all), a reduction in charge may be warranted and is something that should always be explored. In terms of potential penalties, the differences between an aggravated battery and a simple battery are quite significant.

One of the most viable defenses in battery related cases involves self defense. Generally speaking, a person is justified in the use of force to defend himself, his property, or to defend another. The degree of force that may be used will depend on the degree of threat facing the accused person. The circumstances under which a person may use non-deadly force differ from the circumstances under which she may use deadly force. A client of mine was charged with battery after he grabbed the arms of his next door neighbor to prevent her from removing plants in his garden (their respective homes were attached). She called the police and feigned significant back injury as a result of what occurred. It took a jury less than 30 minutes to acquit him, finding that he was justified in grabbing her arms to prevent further destruction to his property. An experienced St. Petersburg criminal defense attorney can provide additional information on the use of force and other related issues, including Florida's stand your ground provisions.

Where it appears that there is a reasonable likelihood of successful prosecution, your criminal defense attorney will usually divert his or her attention from the elements of the crime (and affirmative defense) and focus more on mitigating the impact of the charge. Does the person qualify for a diversion program? Do the underlying circumstances warrant a reduction in charge to allow for a diversion program where it would not otherwise be available? Does the person qualify for a withhold of adjudication? Is there a sentencing guideline departure basis? Can the applicable minimum mandatory sentence be avoided (in cases involving, for example, 10-20-Life, Aggravated Battery on a Law Enforcement Officer, or Aggravated Battery on a Person Age 65 Years or Older)? Is the person being subjected to a recidivist sentencing enhancement? Is the enhancement proper? Is the alleged victim seeking restitution? Is the amount being sought reasonable? These are just some of the issues related to sentencing and mitigation that will need to be examined in detail.

No matter what the circumstances are, early intervention by an experienced criminal defense attorney is critical. Often times, the best opportunities for a favorable outcome present themselves before a formal charge is filed in the first place. With careful scrutiny of the evidence, and a healthy dose of hard work, there is usually much that can be done to help a person charged with a battery related offense.

Resources

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

Links

1. HG. Org: St. Petersburg Battery & Aggravated Battery 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. Florida Sentencing Guideline Departures: Youthful Offenders
6. Florida Sentencing Guideline Departures: Unsophisticated/Isolated/Remorse
7. Florida Sentencing Guideline Departures: Need for Restitution
8. Florida Sentencing Guideline Departures: Legitimate, Uncoerced Plea Bargain
9. Florida Sentencing Guideline Departures: Victim as Initiator, Participant, or Provoker of Incident
10. Florida Sentencing Guideline Departures: Youth & Inability to Appreciate Consequences
11. What is a Stand Your Ground Immunity Motion?
12. Pinellas County Jury Finds Kilfin Law Firm, P.C. Client Not Guilty of Aggravated Battery
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. Statute of Limitations as Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
3. Justifiable Use of Force
4. Affecting the Filing Decision
5. Pre-Trial Diversion
6. Withholding of Adjudication
7. Plea Negotiations
8. Defensive Motions
9. Trial
10. Sentencing
11. Probation Violations
12. Violent Felony Offenders of Special Concern
13. Sealing & Expunging

The Bottom Line

Battery involves touching or striking another person against his or her will, or intentionally causing bodily harm to that person. Simple battery is a first degree misdemeanor. Domestic related batteries carry certain penalties that non-domestic batteries don't, such as the completion of a family violence counseling program (usually twenty-six weeks in length). Where a person has a prior battery conviction, the offense may be prosecuted as a third degree felony. A person may also be prosecuted for a felony level battery where the alleged victim suffers serious bodily injury, or where a deadly weapon is used in the commission of the crime. The victim's status may also enhance a battery charge from a misdemeanor to a felony (based on the victim's age, profession, or, in the case of a female, pregnancy). Depending on the nature of the battery-related charge, Florida's recidivist sentencing provisions, such as the prison releasee reoffender (PRR) provisions, may or may not be invoked.

The potential defenses in a battery case are plenary and often times, more than one approach will need to be utilized. Effective defense strategies should be employed before formal charges are filed, and through sentencing (and, perhaps, appeal). If you have been charged with a battery related offense in St. Petersburg, Clearwater, Tampa, or a surrounding area, The Kilfin Law Firm, P.C. can help. St. Petersburg criminal defense attorney Donald J. Kilfin has handled hundreds of battery cases over the past sixteen years. He is very familiar with how they are prosecuted, and how to effectively defend against them.