Domestic Violence Aggravated Assault

Under Florida law, domestic violence aggravated assault, as codified in F.S. 784.021, is a heightened type of assault charge that involves either the use of a deadly weapon OR an intent to commit a felony.

According to the Florida Statistical Analysis Center, aggravated assaults account for 9 percent of Florida's index crimes, with more than 710,000 reported in a recent 10-year period. More than 330,000 aggravated assault arrests were made during that time, with 11 percent of defendants being juveniles. Nearly 170,000 of these incidents involved the use of a firearm - increasing by roughly 10 percent during that period. The other most common deadly weapon used was a knife/cutting instrument. (Other items that may be considered deadly weapons are rocks, vehicles, broken bottles, baseball bats, etc.) While overall aggravated assault incidents fell during that recent decade, the percentage that involved matters of domestic violence actually increased, from 24 percent to 28 percent.

For a prosecutor to prove aggravated assault, they need top show that:

• The defendant intentionally and illegally threatened to commit violence against the accuser. This could have been done either in word or deed.
• The defendant had the apparent ability to carry out the threat at the time it was made.
• The defendant's alleged threat resulted in the accuser's well-founded fear that violence was imminent.
• The assault was carried out either with the conscious, fully-formed intent to commit a felony OR with the aid of a deadly weapon.

The domestic violence element of the offense is established pursuant to F.S. 741.28. These can be spouses/former spouses, people related by blood or marriage, or those who lived together in the past as a family. The law requires that they either currently or previously lived in the same home. There is an exception if the two involved share a child together, in which case the fact of whether they ever lived together is irrelevant.

As outlined by Florida's 1st District Court of Appeal in the 1985 case of Larkins v. Florida, the state doesn't have to prove the alleged victim was physically harmed or that the defendant actually intended to hurt the victim to secure a conviction for aggravated assault. What they do need to prove is the intention to threaten violence.

To show an intent to commit a felony, prosecutors need to show the assault happened while the defendant was committing or intended to commit a felony. Typically in domestic violence aggravated assaults, the felony is something like battery, sexual assault, aggravated stalking, or kidnapping/false imprisonment.

Proving intent can be done with either direct or circumstantial evidence. For example, if the defendant makes a statement before witnesses or in electronic communications indicating felonious intent, that can be used as evidence.

As our Fort Lauderdale domestic violence defense lawyers can explain, while simple assault is a misdemeanor, aggravated assault is a felony. Penalties for aggravated assault are much harsher than for the basic offense of assault. Some domestic violence aggravated assault convicts will face minimum mandatory prison sentences.

Aggravated assault is a third-degree felony in Florida, meaning it is punishable by:

• Maximum 5 years in prison.
• Maximum $5,000 fine.
• Some combination of both.

Penalties for domestic violence aggravated assault are going to be even more serious if the defendant is a habitual felony offender, as outlined in F.S. 775.084. This classification will apply if the defendant has been previously convicted of any combination of two or more qualifying felonies in the state, with commission occurring while the defendant was serving time in prison OR on state-imposed supervision as a result of the prior conviction OR within the last five years. Qualifying prior offenses include aggravated assault with a deadly weapon, aggravated child abuse, kidnapping, sexual battery, aggravated battery, and aggravated stalking.

Depending on the circumstances, a defendant in this situation could actually be facing up to 20 years in prison. This is not the sort of case you want to try to "wing it" with a public defender. An investment in a top tier criminal defense attorney is an investment in your future.

Because prosecutors don't need to show that the alleged victim was harmed - or even touched - to prove aggravated assault, the defense team might be at something of a disadvantage. Here again, this is why it's in your best interests to hire a defense lawyer with particular experience not only in defending violent crimes, but specifically those involving domestic violence.

The absence of physical injuries, however, might also open the door for defense lawyers to offer up factual disputes on how the incident unfolded, the credibility of the alleged victim, and the veracity of the threat.

As for specific defenses to a charge of domestic violence aggravated assault, these might include:

• Self defense. This is a justified use of force in defense of yourself. You might also assert justified defense of others and (maybe) property.
• False allegations by the alleged victim. Here, we might look carefully at whether there are factual holes in the accuser's testimony. We will also be closely examining the credibility of the accuser. It's worth noting too that accusers in domestic violence cases often recant their testimony (once they're outside the heat-of-the-moment), and this can be used to underscore an alleged victim's lack of credibility.
• Inability to carry out the threat. This is a highly fact-specific defense, but if you had no reasonable means of carrying out a threat when it was allegedly made, the aggravated assault charge isn't going to hold up.
• Instrument in question wasn't a deadly weapon. There are a great many instruments that can be considered a deadly weapon, but we'll closely examine not only what the instrument was, but how it was reportedly being brandished (were you actually holding the knife or were you merely in the kitchen in proximity to a knife?), and how a reasonable person might interpret the actual threat level. If you swing and miss, the lack of physical contact means you'll most likely be charged with aggravated assault, with prosecutors arguing one's hands/fists were a deadly weapon. Depending on the facts, we might argue the defendant's appendages should not be characterized as such.
• Insufficient evidence that the accused intended to commit a felony. If prosecutors are adding an enhancement to the charge on the assertion that the accused assaulted the victim with the intention to commit a felony, they bear the burden of proof to show that intent. This usually requires testimony from someone who says the defendant told them he/she intended to commit the crime. It might also stem from the defendant's confession. We can challenge these with close scrutiny of the witness's credibility. We will also look carefully at the circumstances under which a confession was made to determine whether it may be inadmissible.

Our exact defense strategy will depend heavily on the precise facts of your case. If you're facing these charges, the best thing you can do is refrain from talking to police (or anyone else) about what happened before you have obtained legal counsel.

If you have been charged with domestic violence aggravated assault in South Florida, call The Ansara Law Firm today for your free initial consultation at (954) 761-4011.