MISDEMEANOR BATTERY ATTORNEY
Pursuant to Florida law, Misdemeanor Battery is a first degree misdemeanor, with penalties of up to one year in jail or 12 months probation, and a $1,000 fine. Battery is one of the main causes of arrest and prosecution in Florida. Not only is it a serious charge, but it also carries potential penalties such as the stigma attached to a person who, upon convicted, is labeled as “batterer” or a “violent person.”
If you have been charged with Battery, Simple Battery, or Misdemeanor Battery in Miami, Broward County or Palm Beach County Florida, contact an experienced Attorney to discuss your legal rights.
Definition of Florida Misdemeanor Battery
The crime of Misdemeanor Battery is defined pursuant to Section 784.03, Florida Statutes. In Florida, the term battery is: (1) any actual and intentional touching or striking of another person against that person’s will (non-consensual), or (2) the intentional causing of bodily harm to another person. Where there are no aggravating factors or enhancements, such as use of a weapon, domestic violence or serious bodily injury, the offense is known as “misdemeanor battery.”
Penalties in Florida for Misdemeanor Battery
Misdemeanor battery is classified as a first degree misdemeanor in Florida. The penalties may be up to a year in jail, or a probationary sentence not to exceed one year. Unlike other misdemeanors, prosecutors in Florida do frequently pursue jail sentences or probation sentences for even first time offenders. If jail is sought will depend on a number of elements, including their prior criminal record, the preferences of the alleged victim, the presence of injuries, restitution, the credibility of the State’s case, and whether the accused has legal representation.
Is the Element of Injury Required for Misdemeanor Battery?
No. To commit the crime of misdemeanor battery, an accused does not have to injure the alleged victim. An intentional touching against another person’s will is sufficient. For example, where the allegation is that the touching was against the alleged victim’s will, the existence or extent of injury becomes irrelevant. See D.C. v. State, 436 So. 2d 203 (Fla. 1st DCA 1983).
Does the Element that Touching Has to be Intentional to be required?
Yes. Intent is a required element of a simple battery charge. Thus, an accidental or inadvertent touching of another person is insufficient to establish the alleged criminal act. Whether the accused had the requisite intent is a question for the jury to resolve by examining the surrounding facts and circumstances of the alleged incident.
Touching Must be Against the Alleged Victim’s Will (Without Consent)
Yes. In Florida prosecutions, it is a required element of misdemeanor battery that the touching in question occur without the consent of the alleged victim or against their will. This is a common question in cases where the defendant and the alleged victim start a fight, or “mutual” battle. For example in that scenario, the alleged victim, by initiating the fight, has arguably given consent to be touched.
The question of consent is a jury question, and thus scrutinized in light of the surrounding facts. Testimony from the alleged victim that they did not consent is not required, so long as the state’s evidence can support a jury inference that the touching at issue lacked the alleged victim’s consent or was against the alleged victim’s will. See State v. Clyatt, 976 So. 2d 1182 (Fla. 5th Dist. 2008) (holding that witness testimony that the defendant repeatedly struck the victim, causing her to retreat and cry, was sufficient to support a conviction for battery even where the alleged victim refused to testify at trial).
In many cases, where evidentiary procedures are followed, evidence of a defendant’s prior violent behaviors toward the victim is relevant to prove his or her intent to commit the crime of battery or the alleged victim’s lack of consent.
Is Touching of the Body Required for Misdemeanor Battery?
No. Although misdemeanor battery is a crime against “the person” of an alleged victim, a battery conviction does not require that there be an actual touching of the physical body. The touching or harm may be to the person’s hair, clothing, any object intimately connected with their person, such as a purse, bag, or object being held. Thus, slapping an object out of someone’s hands is, in many cases, is considered a battery.
Direct Contact is not a Required Element of Battery
Indirect contact, such as by throwing an object (no matter how small), may constitute battery if the indirect contact was intentionally caused by the accused and was against the will of the alleged victim.
Can the State Attorney Pursue Charges if the Victim Does not Cooperate, Refuses to Testify, or Wants the Charges Dropped?
One of the most common myths in all of criminal law is that the State Attorney can not pursue a charge of battery or battery domestic violence without the cooperation of the alleged victim. The myth is typically asserted below:
“The alleged victim wants the charges dropped, so the State can’t proceed with the case, right?”
Incorrect. The alleged victim does not make prosecutorial decisions. They can sometimes influence the decision by requesting that the charges be dropped or by refusing to testify, but this, does not ensure that the charges will be dropped. Where the evidence is sufficient, the State Attorney can elect to proceed with cases against the alleged victim’s request.
“The alleged victim won’t testify or make a statement, so the State Attorney has to drop the charges, right?”
Wrong. Not all battery cases require the testimony of the alleged victim. If there are other witnesses (such as a police officer, friends, family members or bystander) the State Attorney may proceed without the alleged victim’s testimony.
In many cases, the State may proceed without any eyewitness testimony as to what happened during the incident.
For Example: Alleged Victim and Defendant are involved in a physical altercation. Defendant strikes Alleged Victim and leaves a red mark on her face. Alleged Victim calls 911. Police Officer’s arrive after Defendant and Alleged Victim have separated. Police see the red mark and take photographs. Can the State Attorney go forward with the case and introduce at trial the 911 recording of Alleged Victim’s statement?
Yes. Although, as an accustomed rule, a defendant has a Sixth Amendment constitutional right to cross examine adverse witnesses, this right only applies where the statements made against the Defendant are “testimonial” in nature. In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court ruled that a statement “[is] non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”
Therefore, a 911 call made for the purpose of seeking help or medical attention is non-testimonial and is not subject to the Sixth Amendment Confrontation Clause. London v. State, 75 So. 2d 357, 359 (Fla. 1st DCA 2011). If such statements are determined by the court to fall within a recognized exception to hearsay rules (i.e. present sense impression, excited utterance), then the statements would be admissible into evidence and heard by the jury, even without the Alleged Victim testifying. All that would be required is to authenticate the 911 tapes through the testimony of the 911 operator.
Defenses to a Florida Misdemeanor Battery Charge
Battery is one of the most defendable charges in all of criminal law. While no one defense or combination of defenses will apply in every case, an experienced Attorney will ask the following questions:
How was the police investigation conducted? What is the history of the relationship between the accused and the alleged victim? Are there injuries? If so, who suffered them? Was the police investigation fair and balanced, or did police jump to conclusions based on bare allegations? Is there contrary physical or photographic evidence? If there is a 911 tape, does it comport with the alleged victim’s allegations? Was there a delay in reporting the alleged attack? Are there witnesses for or against the accused? Did the alleged victim possess a weapon? Is there a self-defense claim? Defense of property claim? Stand Your Ground claim? Did the incident occur in the accused’s dwelling? Is there a history of violence or dishonesty by the alleged victim? What are the relative physical abilities and sizes of the parties? Are there inconsistent statements made by witnesses or by the alleged victim? Is there an alibi available? Does the alleged victim wish to pursue charges?
Does the alleged victim’s version of events make sense? What are the motives of the alleged victim?
Many simple assault and battery charges are fights that have gotten out of hand. And just because you were the person arrested doesn’t mean you even started the fight. It just means the other person called the police, or they simply decided to arrest all parties and sort it out later.