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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.”
f 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.
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-
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 attorney.
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).
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-
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-
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, Florida criminal attorney today for a free consultation.
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