In Florida, an assault is legally defined as a simple threat to do physical harm to someone. While a simple assault is a misdemeanor, our legislature has created countless ways for a prosecutor to upgrade that charge into a life-altering felony.
This happens based on two key factors: how the threat is made and who the threat is made against.
- How the Threat is Made: If you verbally threaten to kill someone, that’s a misdemeanor. However, if you repeat that exact same threat while holding a knife, it becomes an Aggravated Assault with a Deadly Weapon. If you point a firearm while making the threat, it’s an Aggravated Assault with a Firearm.
- Who the Threat is Against: A threat against an ordinary citizen is a misdemeanor. But a threat to harm a protected person—such as a police officer, certain school employees, or even sports officials (referees, umpires, linesmen)—is automatically enhanced to a felony, like Aggravated Assault against a Law Enforcement Officer, even if no weapon was involved.
You see the pattern here? Our lawmakers seem to have nothing better to do than to find new ways to turn misdemeanors into felonies, all so they can boast to their constituents about how “tough on crime” they are.
The Three Elements of an Assault
To prove an assault, the State must prove three separate elements beyond a reasonable doubt. Defending an assault case requires careful attention to all three:
- An intentional, unlawful threat.
- An apparent ability to carry out the threat.
- The threat must create a well-founded fear that violence is imminent.
I often tell clients that the most crucial element is the last one: imminent violence.
Assault Requires “Imminent Violence”
The requirement that violence be “imminent” is the weak link in many of the State’s assault cases. If the threat is conditional or relates to a future time, the charge should fail.
Here are a few real-world examples I’ve seen play out in Central Florida courts:
- Distance Matters: I’ve seen convictions overturned because the distance between the alleged victim and the defendant was simply too great to demonstrate imminent violence. For example, in one case, an aggravated assault conviction was thrown out because a police officer, hiding behind a squad car, could not have been hit by a knife. The physical layout of the scene can be the best defense.
- Words Are Often Not Enough: Courts often require the State to prove some sort of physical act directed toward the victim to demonstrate that violence is imminent. Pointing a gun is an obvious physical act. Another court upheld a conviction where a defendant put his fist directly in his mother’s face and threatened to punch her—the physical presence of the fist qualified as imminent violence. However, a threat to “F’ him up,” without any overt physical move, was not enough to prove imminent violence.
- The Sleeping Victim Defense: I once had a case where a third party called the police after allegedly seeing a boyfriend hover over his sleeping girlfriend with a knife. The case was dismissed. Why? Because the girlfriend, being asleep, had no well-founded fear that violence was imminent.
The Conditional Threat Exception Another common defense is the “conditional threat.” This is when a threat is set out with an “if/then” scenario. For example, a man told his girlfriend he would physically harm her “if” she was ever around another man. While this is the behavior of a jealous person, it is not a crime of assault. The court found that this was simply a conditional threat to do injury at an “unspecified future time based upon a possible eventuality,” and therefore, it did not constitute an assault.
When is a Weapon “Deadly”?
When a misdemeanor assault is upgraded to a felony Aggravated Assault with a Deadly Weapon, the prosecutor’s decision often comes down to their definition of “deadly.” A “deadly weapon” is defined as:
- An item which, when used in the ordinary manner, is likely to cause death or great bodily harm; OR
- An item which, because of the way it is used during the crime, is likely to cause death or great bodily harm.
The term covers more than just guns and knives. Prosecutors have tried to argue that common household items are “deadly weapons,” including bicycles, skateboards, broom handles, glass bottles, and flower pots.
- The “Quarter-Sized Rock” Case: I was stunned by one case in which a defendant was convicted of felony aggravated assault with a deadly weapon for “softly” throwing “quarter-sized” rocks at someone. Fortunately, the appeals court overturned the felony conviction, finding that those rocks did not meet the definition of a deadly weapon. However, they upheld the underlying misdemeanor assault. This shows you the lengths to which prosecutors will go to turn a misdemeanor into a felony.
Though the law for Aggravated Assault with a Firearm no longer carries a 3-year minimum mandatory prison sentence (as of 2016), you are still facing a serious felony that could land you in prison.
You can learn more about the legal elements of an assault by watching my video here: Verbal Assault – Assault Charges
John’s Takeaways
Don’t face these serious charges alone. Assault cases are highly dependent on the facts and legal arguments surrounding the three elements.
Assault is about the threat, not the touch. It is legally defined as an intentional, unlawful threat that creates a well-founded fear of imminent violence.
Imminence is the key defense. Threats that are conditional or relate to a future time are not assaults. The State must prove an apparent ability to carry out the violence at that time.
Legislators love to create felony upgrades. Simple assault is a misdemeanor, but a weapon or the identity of the alleged victim (like a cop or an umpire) can immediately escalate the charge to a felony.
The definition of a “deadly weapon” is often abused. Prosecutors will try to turn common objects into deadly weapons to enhance the charge.
About John Guidry II
John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.
Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.
Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.
When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.
Contact an Experienced Orlando Assault Attorney
As you can see from the above, a “simple assault” is not so simple. But don’t worry, an Orlando assault attorney can help out with assault cases, just pick up the phone and ask away. Thanks.
