Definition of Simple Assault (Misdemeanor)

The definition of simple assault is contained in Section 784.011, Florida Statutes.  Under the law, simple assault (misdemeanor assault) occurs when a person, by word or act, makes an intentional, unlawful threat to commit violence towards another person, and the person making the threat has the apparent ability to carry out the threat, and the person does some act which creates a well-founded fear in the other person that such violence is imminent.

Thus, to prove the crime of assault, the State must establish three elements beyond a reasonable doubt:

  1. the accused intentionally and unlawfully threatened, by word or act, to do violence to the alleged victim;
  2. at the time the threat was made, the accused appeared to have the ability to carry out the threat; and
  3. the accused’s threat created in the mind of the alleged victim a well-founded fear that the violence was about to take place.

The ‘threat’ element of an assault charge addresses the defendant’s intent, not the reaction of the person perceiving the word or act.  Benitez v. State, 901 So. 2d 935, 937 (Fla. 4th DCA 2005).  The word or act constituting the threat must therefore be willful and knowing on part of the defendant.  See Benitez, 901 So. 2d at 937 (evidence of intent insufficient where a highly intoxicated defendant, while seated in a car, merely put his hands behind his back, where a gun was later located).

The intent at issue in an assault prosecution is not the intent to actually commit a violent act.  Rather, the State must prove that the defendant intended to commit an act that was substantially certain to put the victim in fear of imminent violence.  Pinkney v. State, 74 So. 3d 572 (Fla. 2d DCA 2011).  It is immaterial whether the defendant actually intended to carry out his or her threat.  Id. at 578-79.

Penalties for Simple Assault (Misdemeanor)

Florida law classifies Simple Assault as a second degree misdemeanor, with penalties of up to 60 days in jail or 6 months probation, and a $500.00 fine.  Aggravated Assault is classified as a third degree felony, punishable by up to 5 years imprisonment.  Where a firearm is used, the penalties for Aggravated Assault can increase substantially under Florida’s 10-20-Life law.

Where an assault is committed against multiple persons, such an incident will support multiple charges, regardless of whether the assaults occurred as part of a single criminal episode.  Thus, where a defendant drives his car towards two officers in one car, the defendant is properly convicted of two counts of aggravated assault on a law enforcement officer. Bryan v. State, 865 So. 2d 677 (Fla. 4th DCA 2004).

Requirement of Physical Contact

In Florida, physical contact or injury is not a required element of simple assault, regardless of whether the offense is charged as simple assault or aggravated assault. Thus, wielding a knife towards another person, is sufficient for an assault even if the defendant never makes contact with the alleged victim.

Requirement of an Overt Act

An assault cannot occur on the basis of words alone.  Florida appellate courts have consistently held that a defendant must also engage in an overt act rendering the victim’s fears of imminent violence reasonable. See, e.g. Banks v. McFarland, Case No. D13-5825, October 13, 2014 (Fla. 1st DCA 2014); H.W. v. State, 79 So. 3d 143 (Fla. 3d DCA 2012); Titsch v. Buzin, 59 So. 3d 265 (Fla. 2d DCA 2011); Perez v. Seigel, 857 So. 2d 35 (Fla. 3d DCA 2003); Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990).

Thus, a defendant, who stands idle threatening to kill a person, cannot be convicted of assault unless there was an overt act that accompanied the threat and rendered the alleged victim’s fears of imminent violence reasonable.

Requirement of Imminence

Where circumstances prevent a defendant from imminently carrying out the threatening word or act, an assault does not occur.  Thus, a defendant holding a knife in a threatening manner towards a deputy, who was defensively positioned behind a police car thirty feet away, does not commit the crime of assault.  Sullivan v. State, 898 So. 2d 105, 110 (Fla. 2d DCA 2005).

Numerous other appellate decisions demonstrate the requirement of imminence in an assault prosecution.  See L.R. v. State, 698 So. 2d 915 (Fla. 4th DCA 1997) (reversing a trial court’s denial of a motion for judgment of acquittal where the evidence showed that over ten feet and another person separated the victim from the defendant, who had voiced threats while holding a steak knife); Bell v. Anderson, 414 So. 2d 550 (Fla. 1st DCA 1982) (holding that a boater in a moving motorboat had no well-founded fear of imminent violence from a threat of physical harm made by another boater seated in a rowboat at least thirty to forty feet away).

Present Apparent Ability

In addition to intent on part of the defendant, it must also appear from the circumstances that the defendant had the immediate ability to carry out the threat, and that there was a justified fear that the threatened violence was imminent.  Viveros v. State, 699 So. 2d 822, 825 (Fla. 4th DCA 1997). Thus, if the accused is confined in a closed space, or restrained by police officers, an assault does not occur.

On the other hand, where a defendant pulls out a knife and turns toward the alleged victim without taking a step forward, a finding of present apparent ability is proper because, in that scenario, the defendant could have taken a step or thrown the knife at the alleged victim. See Willard v. State, 386 So. 2d 869 (Fla. 1st DCA 1980).

Conditional Threats of Violence

A conditional threat occurs where a defendant offers to commit violence against another person contingent upon an event that may or may not occur in the future.  L.C. v. State, 799 So. 2d 330 (Fla. 5th DCA 2001).  Since the threat is conditioned on events that have not yet come to pass (and may never come to pass) it does not satisfy the requirement of imminence for purposes of an assault conviction.  Id.; Butler v. State, 632 So. 2d 684 (Fla. 5th DCA 1994).

Thus, a defendant who stands outside of a closed apartment door and tells the occupant “come out the door . . . and I’m going to beat your a**,” cannot be convicted of assault. L.C. v. State, 799 So. 2d at 331.

Defenses to Simple Assault

Simple Assault is one of the most defendable charges in all of Florida criminal law. Defenses abound due to the highly subjective nature of the offense, the absence of physical injuries, and factual disputes about how the incident occurred.  Some of the more common defenses raised in assault prosecutions include the following:

  • Self-Defense;
  • Defense of Others;
  • Defense of Property;
  • Stand Your Ground;
  • Absence of intent to threaten the alleged victim;
  • No present apparent ability to carry out the alleged threat;
  • Circumstances indicating that the threat was not imminent;
  • Absence of a well-founded fear on part of the alleged victim;
  • Provocation by the alleged victim;
  • Vague or idle threats with no overt act;
  • Conditional threats;
  • Factual disputes as to whether conduct was threatening in nature;
  • False allegations.

The Importance of an Attorney

Assault is a serious criminal offense, and an attorney is critical for avoiding or minimizing the harsh consequences of a conviction.  An experienced criminal attorney can challenge the allegations of the State Attorney, and raise legal defenses that may be applicable in the case.  In many situations, it is possible to obtain a dismissal of the case in the earliest stages of litigation.

If you have been accused of Simple Assault (Misdemeanor Assault), contact the attorneys at Hussein & Webber, PL for a free consultation.  We handle assault cases throughout the State of Florida.