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Violent Crimes

WHAT CONSTITUTES A VIOLENT CRIME IN FLORIDA

Violent crimes are those crimes that involve the use of force and violence or the threat of the use of force. The term “violent crime” include: domestic assault or batter, date rape, statutory rape, sexual battery, simple assault, aggravated assault, robbery and murder.

When a person is convicted of domestic violence, regardless of whether its classification as felony or misdemeanor or any other felony offense they will be prohibited from possessing a firearm.

ASSAULT

An assault is an intentional and unlawful threat, either by word or act, to do violence to victim and at the time the defendant appeared to have the ability to carry out the threat and the act of the defendant created in the mind of the victim a well-found fear that the violence was about to take place.

Example: defendant drew back his fist and told the victim he was going to knock her lights out. This is an assault.

Assault is a misdemeanor of the second degree punishable by up to 60 days in jail and a $500.00 fine.

AGGRAVATED ASSAULT

Aggravated assault is the intentional and unlawful threat, either by word or act, to do violence to another and at the time the person appeared to have the ability to carry out the threat and the person created in the mind of victim a well-founded fear that violence was about to occur and the assault was made with a deadly weapon or the assault was made with a fully formed, conscious intent to commit a felony upon the victim.

Aggravated assault is a felony of the third degree punishable by up to 5 years in prison and a $5,000.00 fine.

BATTERY

Battery is the intentional touching or striking the victim against their will or intentionally causing bodily harm the victim.

Battery is a first-degree misdemeanor punishable by up to 1 year in jail and a $1000.00 fine.

A person who has a prior conviction for battery, aggravated battery or felony battery and commits a subsequent battery commits a third-degree felony punishable by up to 5 years in prison and a fine of $5000.00.

AGGRAVATED BATTERY

A person commits aggravated battery who, in committing battery when he/she intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or uses a deadly weapon.

A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.

Aggravated battery is a felony of the second degree punishable by up to 15 years in prison and a $10,000.00.

FELONY BATTERY; DOMESTIC BATTERY

A person commits felony battery if he or she actually and intentionally touches or strikes another person against the will of the other; and causes great bodily harm, permanent disability, or permanent disfigurement.

A person commits domestic battery by strangulation if the person knowingly and intentionally, against the will of another, impedes the normal breathing or circulation of the blood of a family or household member or of a person with whom he or she is in a dating relationship, so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person. This paragraph does not apply to any act of medical diagnosis, treatment, or prescription which is authorized under the laws of this state.

Felony battery or domestic battery by strangulation is a felony of the third degree punishable by 5 years in prison and a $5,000.00 fine.

STALKING, CYBERSTALKING

Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.

A misdemeanor of the first degree is punishable by 1 year in jail and a $1,000.00 fine.

A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person's child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree.

A felony of the third degree is punishable by 5 years in prison and a $5,000.00 fine.

Definitions

Harass means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. 

Course of conduct means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.

Willfully means knowingly, intentionally, and purposely. 

Cyberstalk means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

Credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

Any person who, after an injunction for protection against repeat violence, sexual violence, or dating violence or an injunction for protection against domestic violence or after any other court-imposed prohibition of conduct toward the subject person or that person's property, knowingly, willfully, maliciously, and repeatedly follows, harasses, or cyber- stalks another person commits the offense of aggravated stalking, a felony of the third degree.

A felony of the third degree is punishable by 5 years in prison and a $5,000.00 fine.

A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a minor under 16 years of age commits the offense of aggravated stalking, a felony of the third degree.

A felony of the third degree is punishable by 5 years in prison and a $5,000.00 fine.

A person who, after having been sentenced for a violation of or and prohibited from contacting the victim of the offense under willfully, maliciously, and repeatedly follows, harasses, or cyberstalks the victim commits the offense of aggravated stalking, a felony of the third degree.

A felony of the third degree is punishable by 5 years in prison and a $5,000.00 fine.

The punishment imposed under this section shall run consecutive to any former sentence imposed for a conviction for any offense under this section.

ASSAULT OR BATTERY ON A PERSON 65 OR OLDER

Assault 

A person the crime of Assault on a Person 65 years of Age or Older when the accused intentionally and unlawfully threatened, either by word or act, to do violence to a person and at the time, the accused appeared to have the ability to carry out the threat and the act of the accused created in the mind of the victim a well-founded fear that the violence was about to take place, and was at the time 65 years of age or older. 

Battery 

A person commits the crime of Battery on a Person 65 Years of Age or Older when the accused intentionally touches or strikes the victim against his or her and causes bodily harm to the victim and the victim was at the time 65 years of age or older.

Punishment

A person who is convicted of an aggravated assault or aggravated battery upon a person 65 years of age or older shall be sentenced to a minimum term of imprisonment of 3 years and fined not more than $10,000 and shall also be ordered by the sentencing judge to make restitution to the victim of such offense and to perform up to 500 hours of community service work. Restitution and community service work shall be in addition to any fine or sentence which may be imposed and shall not be in lieu thereof.

Whenever a person is charged with committing an assault or aggravated assault or a battery or aggravated battery upon a person 65 years of age or older, regardless of whether he or she knows or has reason to know the age of the victim, the offense for which the person is charged shall be reclassified as follows:

(a) In the case of aggravated battery, from a felony of the second degree to a felony of the first degree.

(b) In the case of aggravated assault, from a felony of the third degree to a felony of the second degree.

(c) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.

(d) In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.

(3) Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld.

CULPABLE NEGLIGENCE

A person commits the crime of Culpable Negligence, when the accused exposes a person to personal injury or inflicts actual personal injury on a person and he/she did so through culpable negligence. 

Culpable negligence means a course of conduct showing reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or shows such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

Punishment:

(1) Whoever, through culpable negligence, exposes another person to personal injury commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Whoever, through culpable negligence, inflicts actual personal injury on another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3) Whoever violates subsection (1) by storing or leaving a loaded firearm within the reach or easy access of a minor commits, if the minor obtains the firearm and uses it to inflict injury or death upon himself or herself or any other person, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. However, this subsection does not apply:

(a) If the firearm was stored or left in a securely locked box or container or in a location which a reasonable person would have believed to be secure, or was securely locked with a trigger lock;

(b) If the minor obtains the firearm as a result of an unlawful entry by any person;

(c) To injuries resulting from target or sport shooting accidents or hunting accidents; or

(d) To members of the Armed Forces, National Guard, or State Militia, or to police or other law enforcement officers, with respect to firearm possession by a minor which occurs during or incidental to the performance of their official duties.

When any minor child is accidentally shot by another family member, no arrest shall be made pursuant to this subsection prior to 7 days after the date of the shooting. With respect to any parent or guardian of any deceased minor, the investigating officers shall file all findings and evidence with the state attorney's office with respect to violations of this subsection. The state attorney shall evaluate such evidence and shall take such action as he or she deems appropriate under the circumstances and may file an information against the appropriate parties.

VIOLATION OF A CONDITION OF PRETRIAL RELEASE DOMESTIC VIOLENCE

A person commits the crime of Violation of a Condition of Pretrial Release from a Domestic Violence Charge, when the Defendant was arrested for an act of domestic violence and before his/her trial the defendant's released on the domestic violence charge was set with conditions and the defendant knew what the a conditions of his/her pretrial release were and the defendant willfully violated the conditions of his/her pretrial release.

Domestic violence means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Definitions: 

Family or household members” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Willfully means knowingly, intentionally and purposely.

An order of no contact is effective immediately and is valid for the duration of the pretrial release or until it is modified by a judge.

Unless otherwise stated by the judge, no contact means it is prohibited for the defendant to have communicated orally or in any written form, either in person, telephonically, electronically, or in any other manner, either directly or indirectly through a third person, with victim.

It is also a violation of a no contact order if the defendant had physical or violent contact with the victim or his/her property or the defendant was within 500 feet of victim's or the victim's residence, even if the defendant and victim share the residence, or the defendant was within 500 feet or the victim, the victim's vehicle or place of employment. . .

Punishment:

A person who willfully violates a condition of pretrial release provided in s. 903.047, when the original arrest was for an act of domestic violence as defined in s. 741.28, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and shall be held in custody until his or her first appearance.

VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE

A person commits the crime of Violation of an Injunction for Protection Against Domestic Violence when a temporary or final injunction for protection against domestic violence was issued by a court against the defendant for the benefit of the victim and the defendant willfully violated the injunction. 

Definitions: 

Willfully means knowingly, intentionally, and purposely.

Punishment: 

A person who willfully violates an injunction for protection against domestic violence or a foreign protection order by:

1. Refusing to vacate the dwelling that the parties share;

2. Going to, or being within 500 feet of, the petitioner's residence, school, place of employment, or a specified place frequented regularly by the petitioner and any named family or household member;

3. Committing an act of domestic violence against the petitioner;

4. Committing any other violation of the injunction through an intentional unlawful threat, word, or act to do violence to the petitioner;

5. Telephoning, contacting, or otherwise communicating with the petitioner directly or indirectly, unless the injunction specifically allows indirect contact through a third party;

6. Knowingly and intentionally coming within 100 feet of the petitioner's motor vehicle, whether or not that vehicle is occupied;

7. Defacing or destroying the petitioner's personal property, including the petitioner's motor vehicle; or

8. Refusing to surrender firearms or ammunition if ordered to do so by the court commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, except as provided in paragraph (c).

(b)1. It is a violation of s. 790.233, and a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, for a person to violate a final injunction for protection against domestic violence by having in his or her care, custody, possession, or control any firearm or ammunition.

A person who has two or more prior convictions for violation of an injunction or foreign protection order, and who subsequently commits a violation of any injunction or foreign protection order against the same victim, commits a felony of the third degree, punishable as provided in s.775.082, s. 775.083 or s. 775.084. For purposes of this paragraph, the term “conviction” means a determination of guilt which is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

(5) Whether or not there is a criminal prosecution under subsection (4), the court shall order the respondent to attend a batterers' intervention program if it finds a willful violation of a domestic violence injunction, unless the court makes written factual findings in its judgment or order which are based on substantial evidence, stating why a batterers' intervention program would be inappropriate.

(6) Any person who suffers an injury and/or loss as a result of a violation of an injunction for protection against domestic violence may be awarded economic damages for that injury and/or loss by the court issuing the injunction. Damages includes costs and attorneys' fees for enforcement of the injunction.

ABUSE OF AN ELDERLY OR DISABLED PERSON

A person commits the crime of Abuse of An Elderly Person or Disabled Adult when the defendant knowingly or willfully abused the victim by intentionally inflicting physical or psychological injury upon victim or committing an intentional act that could reasonably be expected to result in physical or psychological injury to victim or actively encouraging another person to commit an act that resulted in or could reasonably have been expected to result in physical or psychological injury to victim, and at the time, the victim was an elderly person or disabled adult.

Definitions: 

Disabled adult means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person's ability to perform the normal activities of daily living.

Elderly person means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired.

Willfully means intentionally and purposely.

Punishment:

A person who knowingly or willfully abuses an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) “Aggravated abuse of an elderly person or disabled adult” occurs when a person:

(a) Commits aggravated battery on an elderly person or disabled adult;

(b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages, an elderly person or disabled adult; or

(c) Knowingly or willfully abuses an elderly person or disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult.

A person who commits aggravated abuse of an elderly person or disabled adult commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Neglect of an elderly person or disabled adult means:

A caregiver's failure or omission to provide an elderly person or disabled adult with the care, supervision, and services necessary to maintain the elderly person's or disabled adult's physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the elderly person or disabled adult; or

A caregiver's failure to make a reasonable effort to protect an elderly person or disabled adult from abuse, neglect, or exploitation by another person.

Neglect of an elderly person or disabled adult may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or psychological injury, or a substantial risk of death, to an elderly person or disabled adult.

A person who willfully or by culpable negligence neglects an elderly person or disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

A person who willfully or by culpable negligence neglects an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree, punishable as provided in s.775.082, s. 775.083, or s. 775.084.

POSSESSION OF A FIREARM BY CONVICTED FELON OR JUVENILE DELINQUENT 

It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been convicted of a felony in the courts of this state, found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age, convicted of or found to have committed a crime against the United States which is designated as a felony, found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding 1 year and such person is under 24 years of age; or found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year. 

Does Not Apply:

This statute does not apply to a person whose convicted of a felony and has had his or her civil rights and firearm authority restored or whose criminal history record has been expunged.

Punishment:

 Any person who violates this section commits a felony of the second degree, punishable by 15 years in state prison and a $15,000.00 fine.

DISCHARGE A FIREARM IN ANY PUBLIC PLACE

Any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street, who knowingly discharges any firearm over the right-of-way of any paved public road, highway, or street or over any occupied premises, or who recklessly or negligently discharges a firearm outdoors on any property used primarily as the site of a dwelling or zoned exclusively for residential use commits a misdemeanor of the first degree, punishable by 1 year in the county jail and a $1,000.00 fine. 

This section does not apply to: 

  • A person lawfully defending life or property or performing official duties requiring the discharge of a firearm or to;
  • A person discharging a firearm on public roads or properties expressly approved for hunting by the Fish and Wildlife Conservation Commission or Florida Forest Service. 

Any occupant of any vehicle who knowingly and willfully discharges any firearm from the vehicle within 1,000 feet of any person commits a felony of the second degree, punishable by 15 years in the state prison and a $10,000.00 fine.

Any driver or owner of any vehicle, whether or not the owner of the vehicle is occupying the vehicle, who knowingly directs any other person to discharge any firearm from the vehicle commits a felony of the third degree, punishable by 5 years in the state prison and a $5,000.00 fine. 

Any person who recreationally discharges a firearm outdoors, including target shooting, in an area that the person knows or reasonably should know is primarily residential in nature and that has a residential density of one or more dwelling units per acre, commits a misdemeanor of the first degree, punishable by 1 year in the county jail and a $1,000.00 fine. 

This subsection does not apply: 

  • To a person lawfully defending life or property or performing official duties requiring the discharge of a firearm;
  • If, under the circumstances, the discharge does not pose a reasonably foreseeable risk to life, safety, or property; or
  • To a person who accidentally discharges a firearm.

 CARRYING A CONCEALED FIREARM

The crime of carrying a concealed firearm is defined in Section 790.01(2), Florida Statutes. The law provides that “a person who carries a concealed firearm on or about his person commits a felony of the third degree.”

Proving a Carrying a Concealed Firearm 

To prove the offense at trial, the State must establish the following two elements beyond and to the exclusion of very reasonable doubt:

  1. The defendant knowingly carried on or about his person a firearm;
  2. The firearm was concealed from the ordinary sight of another person.

Penalties

The penalties for Carrying a Concealed Firearm in Florida are severe. The offense is generally classified as a third-degree felony, punishable by up to 5 years in prison or 5 years of probation, and a $5,000 fine.

There are defenses to the charge of Carrying a Concealed Firearm. They include:

The individual was not in possession of the firearm (not carries on or about his person);

Lack of proof as to knowledge;

Weapon was not readily accessible;

Weapon was within ordinary sight;

Weapon not found in the defendant's exclusive control;

Individual had a carry permit;

Concealed weapon exceptions

It is lawful for a person to carry a concealed weapon “at his or her home or place of business.”

The phrase “at his or her home or place of business” refers to an individual's surrounding property as well as the buildings and structures situated thereon. If the firearm is possessed at a business, the business does not have to be owned by the accused

The term “business” means place where the accused is employed by someone else. Home means the home in which the accused lives in.

It is lawful for an individual 18 years old or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private car or truck or other conveyance if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use.

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John P. Rutkowski, Attorney at Law, is focused on all aspects, Criminal Defense, Criminal Appeals, Driving/Boating Under the Influence. Sale, Delivery, Possession Drugs, All Sex Crimes, Felony & Misdemeanor. Contact us today to schedule an initial consultation.

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