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Isn't Assault an attempted battery?

Big Pine Key, FL |
Filed under: Criminal defense

All the definitions I'm finding point to assault being an attempted battery.And how come when I search stare decisis there is no presedent on this a charge of attempted battery?

Attorney Answers 5


  1. Not sure what you're searching for but assault is an attempted battery. If you're looking for lesser included offenses it is a little more complex, but I guess the answer to your question is yes.


  2. If you are trying to make the point that you should be charged with attempted battery instead of assault because an attempt charge in Florida carries one-level less punishment, making it a first degree misdemeanor instead of a felony, then you will be stymied by the fact that the legislature already closed that door by making assault a felony in and of itself.

    Assault is defined as attempted battery because it is a logical and illustrative method of defining the behavior itself, but that is almost exclusively used in a civil context - the tort of assault. However, the criminal code bears no relationship to that definition because the criminal code bears no relationship to the civil equivalent charge - in the criminal code assault is a separate charge, defined by behavior defined exclusively within the criminal code and which punishment is also defined discretely, not as a lesser of another criminal charge.

    You're thinking like a lawyer but mixing two different jurisdictional areas in order to find an answer to a problem that suits you. Unfortunately, you cannot use a civil tort definition to deflate a criminal charge punishable by the criminal code. That's also why you cannot find any appellate decisions addressing the linkage you're trying to make. Nice try though.


  3. Actually, I stand corrected: simple assault is already a second-degree misdemeanor. So, I too am not sure why you would pose this question but my other comments, punishment levels notwithstanding, remain valid.


  4. Assault can be attempted battery or it can be just an assault. Anytime someone behaves in a manner that puts the fear in the victims mind that they may be battered, then it's assault. As essential element of assault is the victim's fear of being hit or hurt.


  5. Respectfully, a Florida criminal Assault is NOT an attempted battery, though attempting a battery could qualify as an assault.

    784.011 Assault.
    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.

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