Whether you or a loved one has been arrested, or are under investigation for simple assault (misdemeanor assault), it is critical to consult with an experienced attorney as soon as possible to ensure that your rights are protected. You need the counsel of an experienced Miami assault lawyer to guide you through the process and maximize your chances of resolving your case with a favorable outcome.

Possible Punishment for Assault Conviction

Under Florida law, an assault can be charged as a simple assault, a second-degree misdemeanor, or as an aggravated assault, a third-degree felony. This depends on the specific facts of the case. Additionally, both types of assault can be classified as domestic violence depending on the relationship of the parties.

Although misdemeanor crimes are less serious than felonies,  you still can face significant penalties if you are convicted of simple assault including:

  • A county jail sentence of up to 60 days
  • A fine up to $500
  • Up to six (6) months of probation

What is Assault?

The definition of assault can be found in Florida Statutes, Section 784.011. To prove the crime of assault, the State has to prove three elements beyond a reasonable doubt:

  1.  The defendant intentionally and unlawfully threatened, either by word or act, to do violence to the alleged victim
  2.  At the time, the defendant appeared to have the ability to carry out the threat
  3.  The alleged victim had a well-founded fear that the violence was about to happen based on the defendant’s action

Intentional Word or Act to do Violence

The first element of assault requires the prosecutor to prove that the defendant intentionally and unlawfully threatened, either by word or act, to do violence to the alleged victim. As in all crimes, the law requires that the defendant had intent to commit the offense. In other words, that it wasn’t by accident. The prosecutor has to prove the defendant’s specific intent to threaten violence. There isn’t a requirement that the defendant intend to inflict physical harm by the word or act.

When deciding whether the State has proved this element, the only thing the jury or judge can look at is the defendant’s word or act. The alleged victim’s fear of imminent violence is irrelevant when deciding if the defendant intended to threaten violence. For example, you don’t have the required intent if you throw a rock in the direction of a bush and don’t realize that a person was standing behind the bush—even if it scared the person.

Also, there isn’t a requirement that there be any actual physical contact or injury to the alleged victim.  Changing the above example, if you throw a rock at the bush knowing full well that the person is standing behind it and that it might hit them, it doesn’t matter if the rock actually hits them. If a 6’ 4” young man walks up to a 70 year-old 5’ 2” woman, gets in her face, and tells her he is going to kill her, that can be an assault.   

The last requirement is that the threat be unlawful. It is not entirely clear what this element means. Presumably, this would come into play if a person’s words and actions fulfilled all the other requirements for an assault, but they were authorized by law to say and do the things in question.  This could apply to the actions of police officers when they are doing their job or other situations where the defendant’s “threat” was justifiable or necessary based on the circumstances. 

Apparent Ability to Carry Out the Threat

The second element of assault is that you must have had an apparent ability to carry out the threat. In other words, at the time that you made the threat, you had the physical ability to actually do what you threatened to do to the alleged victim. Again, using the rock example, if you threaten to throw a rock at a person while standing in front of them with a rock in your hand, you would have the apparent ability to carry out the threat. On the other hand, if you were 100 yards away from the person you wouldn’t have the apparent ability to carry out your threat. Here’s another example. If you are having a verbal argument with someone at the park and threaten to drive home and get your gun, you wouldn’t have the present ability to carry out the threat. This is because you did not have the ability to carry out your threat at the time and place you made it.

Well-founded Fear of Imminent Violence

The third element is that your words and/or act(s) cause the alleged victim to have a well-founded fear that the violence is going to happen in that moment. This element actually contains two separate but related requirements: (1) the defendant has to do an overt act directed at the alleged victim and (2) the act has to create a well-founded fear in the alleged victim that the violence is going to happen then and there.

(1) Overt Act Directed at the Victim

Just because you intend or have the opportunity to commit an assault is not enough. You have to do something physically to demonstrate the threat and you have to direct it at the person placed in fear. Take the following example. You tell your friend Steve you are going to punch him and make a fist while he is standing next to his girlfriend, Maria. Steve doesn’t become frightened, but Maria does. You have not committed an assault against Steve or Maria. This is also the case when a physical act is completely lacking.

(2) Well-founded Fear of Imminent Violence

Your physical act must give the alleged victim a well-founded fear that violence will occur at the time you make the threat. This is judged by an objective standard. The prosecutor isn’t required to prove that the alleged victim was actually in fear. If you throw a punch at someone and they duck, the law assumes the person had a well-founded fear of imminent bodily harm. Even if the victim testifies that he/she wasn’t afraid, the judge is going to look at whether a reasonable person would be afraid in those circumstances.

There is also the requirement that the alleged victim has to know you are present and be aware that there is imminent violence. To go back to the rock example, If I throw a rock at a person, but their back is to me and they have no idea that I’m there or that I was about to throw a rock at them, it would be impossible for them to be in fear. They didn’t even know I was there, much less that I threatened them.

Conditional Threats

Although generally, conditional threats usually aren’t enough to make an assault charge, that is not always the case. Sometimes, a conditional threat is relevant in determining whether the defendant’s overt act created a well-founded fear in the alleged victim. As explained above, it always comes down to whether the defendant has the present ability to immediately carry out the threat. For example, if the defendant has his fist raised and says to the person  “if you don’t walk away from me right now, I’m going to punch you,” that would probably be an assault. This is because the defendant had the ability to do what he threatened to do. It doesn’t matter whether the alleged victim complies with the demand/condition. This is different from a case where the defendant threatens to do injury to the person at some unspecified time in the future if that person does something the defendant threatened them not to do.  An example would be if a defendant threatened that he would beat the victim up if he ever steps on the defendant’s property again. The reason why this is not an assault is because there is no overt act.

Defenses to an Assault Charge

Possible defenses to a simple assault charge can include:

  • Self-defense
  • Defense of another person
  • Defense of property
  • Threat is conditional
  • Victim lacks a well-founded fear
  • Lack of intent
  • No present ability to carry out the threat
  • Threat was not imminent
  • No overt act
  • Stand Your Ground

Additional Resources

Simple Assault Laws – Information from Nolo about simple assault charges along with penalties and defenses.

Misdemeanor Assault Law – Law, legal consequences, and defenses to misdemeanor assault.

Contact an Experienced Miami Assault Attorney

Over the years, we have represented hundreds of clients in assault cases. By taking the immediate action of hiring an experienced Miami assault attorney to defend yourself, you are minimizing the chances that your assault case will have lasting consequences for your career, personal life, and reputation. CALL US NOW for a CONFIDENTIAL CONSULTATION at (305) 538-4545,  or simply take a moment to fill out our securely encrypted intake form. The additional details you provide will greatly assist us in responding to your inquiry.

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