Will I Go to Jail for Assault in Florida?

Assault in Florida is generally a misdemeanor, but it can easily become a felony carrying severe penalties under circumstances involving weapons, injuries, or a special class of victims. For the most accurate and reliable answers that apply to your case, contact the best assault defense lawyer near you right away.


In Hillsborough and Pinellas Counties, the lawyers at Stechschulte Nell have long experience and deep knowledge about Florida’s assault laws, how they apply, and how to defend against them. This blog will review what determines whether a defendant charged with assault goes to jail or walks free.



Factors Determining Sentence to Jail or Prison 


Except in cases charging crimes that carry “mandatory minimum” sentences, whether a person goes to jail or prison depends on the circumstances of the case, and the defendant’s individual history, including any prior criminal offenses. 


Some of the factors that tend to increase the likelihood of a jail or prison sentence include: 


  • Use of a deadly weapon 
  • Intent to commit a felony 
  • Prior conviction for the same or similar offense 
  • Committing the crime during a riot 
  • Victim suffers great bodily harm, permanent disability, or permanent disfigurement 
  • Defendant knew or should have known the victim was pregnant 
  • The victim was 65 years old or older 
  • The victim was a law enforcement officer 
  • Vulnerable victim  
  • Hate crime 
  • The victim is an elected official or government employee 
  • Failure to accept responsibility for the offense 


Some of the factors that tend to reduce the likelihood of a jail or prison sentence include: 


  • No prior criminal record or contacts 
  • No serious bodily injury to the victim 
  • Veteran  
  • Community Service Volunteer 
  • Chief supporter of family 
  • Employed 
  • Student 
  • Restitution paid early 
  • Participating in counseling 
  • Substance Use Disorder 
  • Mental Illness or developmental disability 
  • History of abuse  
  • Misguided defense of others 
  • Culpability of victim 
  • Sincere remorse 


Simple Assault 


In Florida, simple assault is defined in the law as an  


  • intentional  
  • “threat” by word or act to harm to someone,  
  • combined with the present ability to carry out the threat, and  
  • causing the person to be in reasonable apprehension.  


Notice that the crime of simple assault does not require any physical contact in Florida. 


The crime could be committed by a raised fist suspended in the air during a face-to-face argument. The threat by the act is complete, the proximity means that they could strike, and the fear of harm is reasonable.  


Penalty: A simple assault in Florida is punishable as a 2nd Degree Misdemeanor, with a maximum sentence of 60 days in jail and a $500 fine. 




Battery is a crime that requires offensive physical contact with the body of another person. What’s offensive physical contact?  


Offensive physical contact is any intentional, uninvited, or unconsented touching of another person’s body. Criminal battery does not need to cause injury to be a crime. However, intentionally causing bodily harm to someone is also battery. 


Battery is a misdemeanor if no “aggravating” facts are involved.  


Penalty: Simple battery (first conviction) is a 1st-degree misdemeanor carrying up to 1 year in jail and a $1,000 fine. 


Aggravated Assault and Aggravated Battery 


In Florida, an “aggravated assault” is a 3rd-degree felony. Remember, no physical contact is needed to commit an assault. An aggravated assault would be threatening someone with a deadly weapon when it appeared you had the present ability to carry out the threat and the person was afraid. As a 3rd degree felony, a defendant convicted of an aggravated assault faces up to 5 years in prison and a $5,000 fine. 


”Aggravated battery” is a higher-order felony because of the nature of the crime; actual physical contact with the victim. Aggravated battery is a battery that inflicts great bodily harm, permanent disability, or permanent disfigurement on a victim. Or “using” a deadly weapon will also violate this statute. Aggravated battery is a 2nd-degree felony carrying 10 years in prison and a $10,000 fine. 


How an Experienced Criminal Assault or Battery Defense Lawyer Can Save You From Jail 


Every criminal case is different, just like every individual who is charged with a crime is different from every other person. And no two crimes have the same factual circumstances exactly.  


A skilled criminal defense lawyer does far more than merely read the law and plug their client’s case into the slot for that offense. The same criminal act committed by a career criminal who is sentenced to years in prison can result in only probation when committed by a first offender, or a young person dealing with mental health or substance abuse issues. 


Your criminal defense lawyer should be a great ADVOCATE for you. An experienced defense lawyer is a good legal advocate when they search through every minute fact from their client’s life, education, family relationships, employment, physical and mental health, religion, community involvement, and even their hopes and dreams, to build an argument on the defendant’s behalf. 


Individual Sentencing vs. Uniform Sentencing 


Judges are human, and they are susceptible to the same feelings of sympathy and anger as the rest of us. Many years ago, the sentence a person received following a conviction was entirely up to the judge, limited by the maximum stated in the law. But experience showed defendants who were wealthy, well-connected, white, female, or defendants who “knew someone” would get better treatment than poor, unconnected, black men. The injustice was frequently observed and was a shame to the American system of criminal justice. 


Lawmakers thought the answer was uniform sentencing or mandatory sentencing schemes where a court would plug the defendant’s data into a chart and the sentence would be the same for all similar offenders. But that too was unjust because people who were deserving of mercy were denied, often being thrown into prison for decades for possessing relatively small amounts of controlled substances. 


Today, those uniform sentencing systems still exist but they are balanced by the judge’s ability to use their own discretion in cases they believe deserve a lower or higher sentence than the charts recommend.  


In almost all state criminal prosecutions and in many federal prosecutions, whether a defendant goes to jail or goes home is determined by the quality, experience, and talent of their criminal defense lawyer in preparing and advocating for their client. 


Learn More > Assault & Battery Charges in Florida  


Assault and Battery Defense 


Get skilled legal advice from our attorneys in Tampa Bay at Stechschulte Nell for assault and battery crimes today. Call us for a case review; 813-280-1244.  

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