Fla. Stat. 784.011 defines an “assault” in the State of Florida. It states:
(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
(2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
The Standard Florida Jury Instructions break this crime into three elements that the State must prove beyond a reasonable doubt in order to earn a conviction. They are:
(1) (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).
(2) At the time, (defendant) appeared to have the ability to carry out the threat.
(3) The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
If the State fails to prove any of the three elements a jury must find the defendant not guilty.
What is Not an Assault
As mentioned above, in order for an assault to occur, each element must be proven. In an injunction case, Adamczyk v. Herman, 286 So.3d 305 (4th DCA 2019), the Petitioner, Adamcyzk, had an injunction placed against him in the trial court by Herman. In order for the injunction to issue for repeat violence, the trial court had to find at least two separate instances of violence. Of course, an assault would qualify as violence.
While it was clear that there was at least one instance of violence, the Fourth DCA found that there was not a second instance of violence. Herman had claimed, and the trial court had surprisingly found, that yelling profanities at Herman qualified as an assault by Adamczyk.
The Court stated, “Although there was testimony that appellant profanely told appellee to get off his property, there was no evidence that appellant threatened violence or that he took some action that could have created a well-founded fear that violence was imminent. This confrontation did not rise to the level of “violence” required to support an injunction under section 784.046(2).”
As such, the Fourth DCA reversed the trial court and vacated the injunction.
Adam Bantner was board certified by the Florida Bar as an expert in criminal trial law in 2016. He has earned numerous other distinctions that qualify him to help you with your assault charge. Call him today at 813.397.3965 to set up your free consultation.
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Adam Bantner, II is a Board Certified Criminal Trial Law Attorney representing those accused of crimes in Hillsborough and Polk Counties. When you are facing criminal charges, you want an expert in your corner. The Florida Bar has recognized Adam as an expert criminal defense attorney.
I have been defending the accused since 2006 and am Past President of the Hillsborough County Association of Criminal Defense Attorneys.
I have tried over 30 jury trials, on charges ranging from driving on a suspended license to murder.
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I approach each case on the principle that every client deserves zealous representation, with attention to detail and to their individualized needs. My mission is to get the best possible result for every client, in every case, every time. Give me a call to see how I can assist you to get the best results in your case. I are here to help.