Definition of Battery

In Florida, Simple Battery is defined as the intentional touching or striking of a person against their will, or as the intentional causing of bodily harm to another person.

Intent Requirement

Intent is a required element of a battery charge, and a defendant’s conduct must be “either a specific voluntary act or something that is substantially certain to result from the act.” C.B. v. State, 810 So. 2d 1072 (Fla. 4th DCA 2002).

Accidental touching or a touching that is incidental to other conduct not aimed at making contact with another person, is insufficient to establish a battery.  Beard v. State, 842 So. 2d 174, 176-77 (Fla. 2d DCA 2003).

Intent is a jury question determined by the surrounding facts and circumstances of the touching or striking of the victim.  Fey v. State, 125 So. 3d 828, 831 (Fla. 4th DCA 2013) (citing S.D. v. State, 882 So. 2d 447, 448 (Fla. 4th DCA 2004)).

Mutual Combat

Mutual combat is a recognized battery defense so long as both parties are at fault and the accused was not the primary aggressor who initiated the confrontation.  Eiland v. State, 112 So. 2d 415 (Fla. 2d DCA 1959); A.L. v. State, 790 So.2d 1149 (Fla. 2d DCA 2001).


The element 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 of a non-consensual touching. State v. Clyatt, 976 So. 2d 1182 (Fla. 5th Dist. 2008).

No Requirement of Injury

To commit the crime of misdemeanor battery, an accused does not have to injure the alleged victim. The 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. D.C. v. State, 436 So. 2d 203, 206 (Fla. 1st DCA 1983).

Objects Connected with a Person

A battery does not require an actual touching of the victim’s person. An unconsented touching of something intimately connected with the victim’s body” is sufficient.  Clark v. State, 746 So. 2d 1237, 1240 (Fla. 1st DCA 1999).

Common examples include purses, handbags, wallets, cell phones, other electronic devices, keys, and clothing.  Nash v. State, 766 So. 2d 310 (Fla. 4th DCA 2000) (grabbing a purse); Malczewski v. State, 444 So.2d 1096, 1099 (Fla. 2d DCA 1984) (money bag held by the victim).

Direct Contact is not Required

Indirect contact, such as by throwing or projecting 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.  Mohansingh v. State, 824 So. 2d 1053, 1054-55 (Fla. 5th DCA 2002) (spitting found to constitute battery).


In Florida, Simple Battery is first degree misdemeanor, with penalties of up to 1 year in jail or 12 months probation.

Whether jail is sought will depend on a number of factors, including the prior criminal record of the accused, the wishes of the alleged victim, the extent of injuries, the strength of the prosecution’s case, and whether the accused is represented by an attorney.


Battery is one of the most defendable charges in all of criminal law. Some of the most common defenses include the following:

Victim Cooperation / Consent

One of the most pervasive myths in all of criminal law is that the prosecution cannot pursue a charge of battery or battery domestic violence without the consent or 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. 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. 3d 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.

Contact an Attorney

If you are facing a charge of Battery in Jacksonville or the surrounding counties, contact Hussein & Webber, P.L. for a free consultation.