Simple Battery in Florida | Jacksonville Misdemeanor Battery Attorney
Under Florida law, Simple Battery (also known as Misdemeanor Battery) is a first
degree misdemeanor, with penalties of up to one year in jail or 12 months probation,
and a $1,000 fine. Battery is one of the top causes of arrest and prosecution in
Florida. It is a serious charge, not only because of the potential penalties it
carries, but because of the stigma attached to a person who, upon conviction, is
instantly labeled as “violent” or (even worse) as a “batterer.”
If you have been charged with Battery, Simple Battery, or Misdemeanor Battery in
Jacksonville, Duval County, Clay County, Nassau County, or Baker County Florida,
contact an experienced Jacksonville Criminal Attorney to discuss your legal options.
These offenses are vigorously prosecuted by the State Attorney’s Office in Northeast
Florida, and a lawyer is an essential asset for contesting the charge or minimizing
the possible penalties you may face.
How is Simple Battery / Misdemeanor Battery Defined Under Florida Law?
The crime of Simple Battery or Misdemeanor Battery is defined under Section 784.03,
Florida Statutes. In Florida, the term battery means (1) any actual and intentional
touching or striking of another person against that person’s will (non-consensual),
or (2) the intentional causing of bodily harm to another person. Where there are
no aggravating factors or enhancements at play, such as use of a weapon, serious
bodily injury, or domestic violence, the offense is known as “simple battery” or
What Are the Penalties in Florida for Simple Battery / Misdemeanor Battery?
As referenced above, simple or misdemeanor battery is classified as a first degree
misdemeanor in Florida. Thus, the penalties can include up to a year in jail, or
a probationary sentence not to exceed one year. Unlike other misdemeanors, prosecutors
in Florida do frequently seek jail sentences or probation sentences for even first
time battery offenders. Whether jail is sought will depend on a number of factors,
including the prior criminal record of the accused, the status and preferences of
the alleged victim, the existence of injuries, the need to seek restitution, the
strength of the prosecution’s case, and whether the accused is represented by an
Does There Have to Be an Injury to Constitute Simple / Misdemeanor Battery?
No. To commit the crime of simple battery or misdemeanor battery, an accused does
not have to injure the alleged victim. An intentional touching against another person’s
will is sufficient. In fact, where the allegation is that the touching was against
the alleged victim’s will, the existence or extent of injury becomes irrelevant.
See D.C. v. State, 436 So. 2d 203 (Fla. 1st DCA 1983).
Does the Touching Have to be Intentional?
Yes. Intent is a required element of a simple battery charge. Thus, an accidental
or inadvertent touching of another person is insufficient to establish the alleged
criminal act. Whether the accused had the requisite intent is a question for the
jury to resolve by examining the surrounding facts and circumstances of the alleged
incident. The Florida standard jury instructions contain reference to the intent
element, and thus a trial court is not required to specifically instruct a jury that
accidental touching does not constitute a battery.
Does the Touching Have to be Against the Alleged Victim’s Will (Without Consent)?
Yes. In all Florida prosecutions, it is a required element of simple battery or
misdemeanor battery that the touching at issue occur without the consent of the alleged
victim, or against the alleged victim’s will. This is frequently an issue in cases
where the defendant and the alleged victim engage in a fight, or “mutual” combat.
In that scenario, the alleged victim, by initiating the fight or assenting to participate
in the fight, has arguably given consent to be touched. The question of consent
is a jury question, and is examined in light of the surrounding circumstances. Testimony
from the alleged victim that he or she did not consent is not required, so long as
the state’s evidence can support a jury inference that the touching at issue lacked
the alleged victim’s consent or was against the alleged victim’s will. See State
v. Clyatt, 976 So. 2d 1182 (Fla. 5th Dist. 2008) (holding that witness testimony
that the defendant repeatedly struck the victim, causing her to retreat and cry,
was sufficient to support a conviction for battery even where the alleged victim
refused to testify at trial).
In some cases, where evidentiary procedures are followed, evidence of a defendant's
prior violent behaviors toward the victim is relevant to prove his or her intent
to commit the crime of battery or the alleged victim’s lack of consent.
Is Touching of the Body Required for the Crime of Simple / Misdemeanor Battery?
No. Although simple battery / misdemeanor battery is a crime against “the person”
of an alleged victim, a battery conviction does not require that there be an actual
touching of the physical body. The touching or harm may be to the person’s hair,
clothing, any object intimately connected with their person, such as a purse, bag,
or object being held. Thus, slapping an object out of someone’s hands is, in some
cases, a battery.
Is Direct Contact Required by the Accused a Required Element of Battery?
No. Indirect contact, such as by throwing an object (no matter how small), can constitute
battery if the indirect contact was intentionally caused by the accused and was against
the will of the alleged victim.
Can the Prosecutor Pursue Charges if the Alleged Victim Does not Cooperate, Wants
the Charges Dropped, or Refuses to Testify?
One of the most pervasive myths in all of criminal law is that the prosecution can
not pursue a charge of battery or battery domestic violence without the cooperation
of the alleged victim. The myth is typically expressed as follows:
“The alleged victim wants the charges dropped, so the State can’t proceed with the
case.” Wrong. The alleged victim does not make prosecutorial decisions. He or she
can sometimes influence the decision by requesting that the charges be dropped or
by refusing to testify, but this, in and of itself, does not ensure that the case
will in fact be dropped. Where the evidence is sufficient, the prosecution often
elects to proceed with cases against the alleged victim’s wishes.
“The alleged victim won’t testify or make a statement, so the State has to drop the
charges.” Wrong again. Not all battery cases require the testimony of the alleged
victim. If there are other witnesses (such as a police officer, bystander, friend,
or family member) the state may proceed without the alleged victim’s testimony.
In some cases, it’s even possible to proceed without any eyewitness testimony as
to what happened during the actual incident.
Example: Defendant and Alleged Victim are involved in a physical altercation. Defendant
strikes Alleged Victim and leaves a red mark on her face. Alleged Victim calls 911
for help. Police arrive after Defendant and Alleged Victim have already separated.
Police observe the red mark and take photographs. Can the State proceed with the
case and introduce at trial the 911 recording of Alleged Victim’s statement?
Arguably, yes. Although, as a general rule, a defendant has a Sixth Amendment constitutional
right to cross examine adverse witnesses, this right only applies where the statements
made against the Defendant are “testimonial” in nature. In Davis v. Washington,
547 U.S. 813 (2006), the Supreme Court ruled that a statement “[is] non-testimonial
when made in the course of police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police assistance to meet
an ongoing emergency.” Thus, a 911 call made for the purpose of requesting help
or medical attention is non-testimonial and is not subject to the Sixth Amendment
Confrontation Clause. London v. State, 75 So. 2d 357, 359 (Fla. 1st DCA 2011). If
such statements are determined by the court to fall within a recognized exception
to hearsay rules (i.e. present sense impression, excited utterance), then the statements
would be admissible into evidence and heard by the jury, even without the Alleged
Victim testifying. All that would be required is to authenticate the 911 tape through
the testimony of the 911 operator.
What are the Defenses to a Florida Misdemeanor Battery Charge?
Battery is one of the most defendable charges in all of criminal law. While no one
defense or combination of defenses will apply in every case, an experienced Jacksonville
battery and domestic violence lawyer will ask the following questions:
What is the history of the relationship between the accused and the alleged victim?
How was the police investigation conducted? Was the police investigation fair and
balanced, or did police jump to conclusions based on bare allegations? Are there
injuries? If so, who suffered them? Is there contrary photographic or physical evidence?
If there is a 911 tape, does it comport with the alleged victim’s allegations? Was
there a delay in reporting the alleged attack? Are there other witnesses for or against
the accused? Did the alleged victim possess a weapon? Is there a self-defense claim?
Defense of property claim? Did the incident occur in the accused’s dwelling? What
are the relative physical abilities and sizes of the parties? Is there a history
of violence or dishonesty by the alleged victim? Are there inconsistent statements
made by witnesses or by the alleged victim? Is there an alibi available? Does the
alleged victim’s version of events make sense? What are the motives of the alleged
victim? Does the alleged victim wish to pursue charges?
At Hussein & Webber, P.L., our Jacksonville criminal defense attorney is committed
to the aggressive defense of our clients when they face charges of assault or battery.
When possible, we fight for a dismissal of the charges. When dismissal is not possible,
we pursue every legal defense available to contest the charge or to otherwise reach
a resolution that serves our clients’ best interests. Contact an experienced Jacksonville
criminal defense lawyer today for a free consultation.