What is aggravated assault?

Published on April 12, 2016

Orlando criminal defense attorney David Hill explains what is simple assault and what is aggravated assault under Florida Law. He also discusses the difference between an assault and a battery charge, and the possible consequences if convicted of any of those charges

Regular Assault vs Aggravated Assault in Florida

Regular assault in the state of Florida is a misdemeanor offense. It's a second-degree misdemeanor punishable by up to 60 days in jail. So it's relatively speaking a minor offense.

An assault, unlike a battery, is a threat to do harm. Assault is an intentional threat to do harm on somebody with the present ability to do that. It's one thing to say something like “if you don't do what I say I'm going to beat you up in a week”. That's not present intent or it doesn't show that you're going to do anything right now. But if you make a threat to do harm on somebody, that is considered an assault.

An assault becomes an aggravated assault if in the process of the threat you use a firearm or a deadly weapon, or if you knew, or should have known, that the person you're threatening is a pregnant person. So the important part about aggravated assault and weapons is that what could have been a misdemeanor goes to a felony if you threaten somebody with a deadly weapon or a gun. Specifically, when we're talking about firearms, and I talk about this in other parts of my website, if you use a firearm in the course of an aggravated assault you are faced with a three year minimum mandatory in prison. That means for example that if you wave a gun into someone and threaten them, even though you don't think it's a big deal, you're looking at three years in prison right off the bat. Again it doesn't matter if the judge doesn't think that you're a bad person or that you don't have a bad record; even if you have no record, you're looking at three years in prison if you're convicted of that offense.

There are other related offenses. Sometimes people ask about the difference between aggravated assault and aggravated battery. An assault is a threat to do harm while a battery is an actual touching, unwanted touching. So, if somebody comes up and just pushes you and you didn't want them to do that or you didn't give them permission to do that, that's considered a misdemeanor battery. If while committing a battery someone causes great bodily harm or a permanent physical injury the misdemeanor battery charge is elevetated up to a second-degree felony. If in the process of committing an aggravated battery a firearm is used, we go back to the minimum mandatories that we talked about earlier and you would be looking at least at a three-year minimum mandatory sentence. There is also the possibility that you will be looking at a 10-year minimum mandatory. Bottom line is that, in the state of Florida, anytime firearms are involved on any felony offense you go from possibly very low penalties and no incarceration straight up to these minimum mandatories, that could be three years if it's just an assault or it could be 10 years or worse depending on the facts.