Assault: Aggravated and With A Deadly Weapon


Assault: Aggravated and With A Deadly Weapon

West Palm Beach Assault and Aggravated Assault Attorney David W. Olson

 

Assault and aggravated assault charges are vigorously prosecuted in Florida. A conviction for aggravated assault can potentially result in a third degree felony, punishable by a term of imprisonment of up to five years and a $5,000 fine. If a deadly weapon is involved or discharged, a conviction can potentially result in added years and a mandatory minimum sentence. It is important to understand that an arrest is not a conviction and that an experienced criminal defense attorney can zealously challenge the charges.

 

For more than 30 years, Attorney David W. Olson has represented thousands of clients, including many charged with assault, aggravated assault, assault with a deadly weapon and other serious felonies and misdemeanors. In many cases, Attorney Olson successfully negotiated with prosecutors, resulting in dismissed or reduced charges. Numerous cases that went to trial resulted in not guilty verdicts.

 

In all cases and for all clients Attorney Olson focuses on obtaining the most favorable results possible so that clients can continue on in their lives and leave the past behind. Attorney Olson offers a complimentary, confidential case review to discuss your particular circumstances.

 

Florida Assault Statute

 

784.011 Assault

 

  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.

 

Understanding and Proving Assault

 

The term assault, as used in a legal sense, is often misunderstood and confused with the term battery (please see our battery page for additional information). Simple assault does not include physical contact such as hitting or striking another with a physical object. Aggravated assault, however, does involve contact with the use of a deadly weapon.

 

To prove statutory assault, three elements must be proven beyond a reasonable doubt:

 

  1. The accused must have intentionally and unlawfully threatened – either by word or act – to do violence to the victim.
  2. At the time of the act, the accused appeared to have been able to carry out the threat.
  3. Based on the act of the accused, the victim had a well-founded fear that the violence was about to happen.

 

If all three elements are not proven the assault charges must be dropped.

 

Example of Assault

 

Max confronts Mary on a dark street and with his hand in his jacket and in a menacing manner says, “I’ll shoot you if you don’t give me your money.” Max did not have a gun but he intentionally and unlawfully threatened Mary, and in her eyes she reasonably believed he had a gun or could have had a gun and that violence could occur.

 

Florida Aggravated Assault Statute

 

784.021 Aggravated assault

 

  1. An “aggravated assault” is an assault:
    1. With a deadly weapon without intent to kill; or
    2. With an intent to commit a felony.
  2. Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

 

Understanding and Proving Aggravated Assault

 

Aggravated assault is a violent crime that may be charged when a deadly weapon was used but when the accused did not actually intend to kill the victim or when the prosecution cannot prove that the accused intended to kill the victim.

 

For an assault conviction, the prosecution must prove all of the following elements beyond a reasonable doubt, including the first three elements of simple assault:

 

  1. The accused intentionally and unlawfully threatened, either by word or act, to do violence to the victim.
  2. At the time of the act, the accused appeared to have been able to carry out the threat.
  3. The act of the accused created in the mind of the victim a well-founded fear that the violence was about to take place.

 

If a deadly weapon was alleged to have been used, the prosecution must prove:

 

  1. The assault was made with a deadly weapon.
  2. If applicable, it must be proven that the assault was made with a fully-formed, conscious intent to commit a specific felony upon the victim.

 

A conscious intent to commit a felony may refer to a variety of different offenses, including, for example, murder or burglary.

 

Example of Aggravated Assault

 

Max confronts Mary on a dark street and points a loaded gun at her. He says, “Give me all your money or I’ll kill you.” Max intentionally and unlawfully threatened to violently harm Mary. This is apparent by his words and by his actions. Mary had a well-founded fear and reason to believe the gun was loaded and that he was able to carry out the violence. Further, a gun is a deadly weapon. Additionally, Max had a fully formed, conscious intent to commit one or more felonies.

 

What is a Deadly Weapon?

 

In addition to commonly known weapons and explosive devices such as guns, rifles, knives, bombs and so forth, relatively ordinary items may potentially be considered deadly weapons depending on the case, circumstances and how the object was used. Weapons may include bats, bottles, pipes and theoretically any item that could potentially result in death.

 

Sentencing Enhancements

 

Possession of and/or discharging a deadly weapon or other destructive device may result in sentencing enhancements and mandatory minimum sentences. This may potentially result in:

 

  • 3 years – possession of a firearm or destructive device
  • 25 years – discharging a firearm

 

Defending Against Assault Charges

 

Assault and aggravated assault charges must be proven beyond a reasonable doubt. There are numerous defenses that may be employed by your attorney and may possibly include the following:

 

  • Idle threat – an assault must be accompanied by the ability to carry out the threat. Mere words alone are not enough.
  • Victim did not actually believe or have a well-founded fear that the act was to occur
  • Self defense or defense of others
  • Lack of evidence
  • Suppression of evidence
  • Witness is not credible
  • Not a deadly weapon
  • Others defenses according to your specific case; discuss this with your attorney.

 

Assault and Aggravated Assault West Palm Beach Criminal Defense Lawyer David W. Olson

 

Attorney Olson represents clients charged with all felonies and misdemeanors, including:

 

  • Assault, aggravated assault, battery, aggravated battery
  • Drug offenses – possession, trafficking, manufacturing, all others
  • First, second, third and subsequent DUI, reckless driving, vehicular homicide, other driving offenses
  • Theft offenses, including petty theft, grand theft, carjacking, stolen property
  • Sex offenses, including lewd and lascivious, internet sex offenses, rape, child pornography
  • Violent crimes, including murder, manslaughter, robbery, kidnapping, other
  • Other offenses –contact Attorney Olson

 

Professional Awards and Accolades

 

Attorney Olson’s awards and accolades include the following:

 

  • AV Preeminent, highest rating of 5.0 out of 5.0, for the highest ethical standards and professional legal ability. Fewer than 5% of attorneys receive this honor.
  • Top 100 Trial Lawyers’ – National Trial Lawyers
  • Top 1% – National Association of Distinguished Counsel

 

Contact Attorney Olson for a Complimentary Case Review

 

Attorney Olson will always pursue the most favorable outcome possible for your particular case and circumstances. There are many possible case outcomes including dismissed charges, reduction of charges, plea agreement, pretrial diversion program, treatment programs, drug court, probation, community service and more. It is beneficial to contact your attorney as soon as possible after an arrest or upon learning of an impending arrest or an ongoing investigation. Early intervention by your attorney will allow him to immediately start formulating a defensive strategy.

 

Attorney Olson offers a complimentary, confidential, no-obligation case review by phone or in his office. To contact The Law Offices of David W. Olson, callcontact 561-833-8866.

 

Source

 

Florida Statutes, §§ 784.011, 784.022, Fla. Stats. (2015)
Florida Standard Jury Instructions, 8.1 Assault, 8.2 Aggravated Assault