Brad Post: Alright. Welcome to the floridadefense.com podcast. We are speaking to Pasco County (Florida) violent crimes lawyer Mike Kenny. Mike, how are you doing today?

Michael D. Kenny, Attorney: I’m doing well. How are you doing?

B: Doing well. Doing well. Well, we’re going to be talking basically about violent crimes today. And, so, I’m going to turn it over to you.

M: Okay. Alright. Well violent crimes is kind of a big category. It covers a lot of things. We could start talking a little bit about assault charges and battery charges. In the state of Florida, they are separate charges actually. Assault is one act, and battery is another act. In Florida, an assault is essentially a threat. It’s a threat where a person makes a threat to make contact or do some type of physical harm to another individual, and has the apparent ability to carry out that threat. Usually that comes up where a person maybe raises a fist in an argument with somebody else, and looks like he’s about to take a swing or punch somebody. That’s your classic assault. In the state of Florida, a misdemeanor assault like this is a second-degree misdemeanor. That means it is punishable by a maximum of 60 days in jail, or six months of probation. Now, what bumps that assault up is depending upon who the person that’s threatened is. So, if you do that same act, and you raise your fist like you’re about the strike somebody, but the other person happens to be a law enforcement officer, that’s assault on law-enforcement officer. So it takes it from a second-degree misdemeanor to a first-degree misdemeanor. Still a misdemeanor - punishable by up to a year in jail as opposed to 60 days initially for your probation.

Battery is a first-degree misdemeanor. And battery is what most people may understand what that is already. That’s just the physical touching or the contact another person that’s unwarranted, done without that person’s consent. So it’s either offensive touching, or causing an injury to another person. And those are first-degree misdemeanor punishable up to a year in jail. That’s your basic section of misdemeanor crimes, violent crimes of assault and battery.

Then there’s all these little changes that can happen that can significantly enhance the crimes for misdemeanors to felonies. So, for instance, I talked about law-enforcement officer, and an assault on a law-enforcement officer being a first-degree misdemeanor. If a person commits an aggravated assault on law-enforcement officer, and that’s a situation where a person uses a weapon to threaten a law-enforcement officer, and a weapon could be anything that is capable of inflicting death or serious bodily harm. So, that could be a firearm. That could be a knife. That could be a baseball bat. Shoot that could be a car. Any one of those things. Then you’re talking about a felony with a three-year minimum mandatory prison sentence. So, there’s taking the fist and raising up like your going to strike the officer, and then threatening to do some harm is punished significantly more, and there’s actually a minimum amount of time a person will have to be in prison. It’s a third-degree felony punishable up to five years maximum. And finally, an aggravated battery on law-enforcement officer, that’s something that gives you a five-year minimum mandatory prison sentence. That’s a second degree felony. That’s where there is an actual battery, like we talked about before, but this time there’s a deadly weapon used, or weapon that can cause death or serious bodily harm. A regular battery of a law-enforcement officer is still felony, it’s a third-degree felony punishable by up to five years in jail.

B: You mentioned that they don’t even have to this actually strike them it’s more for

M: Not for the assault. Not for the assault. Any time you hear term battery in the state of Florida that means contact has been made.

B: Okay.

M: When you hear the term assault that means it was either an attempted battery, or it was simply a threat. Assault means no physical contact has been made.

B: Does that include verbal threat?

M: Generally not.

B: Okay.

M: Generally, saying, “I’m going to kick your butt,” to somebody else in a conversation does not rise to the level of a crime.

B: Okay.

M: Thankfully. We’ve all been to football games, and baseball games, and any other event

B: Right.

M: Some people have not had the full judgement that they should normally have.

B: Right.

M: And, we don’t want to be arresting people for just running their mouth.

B: Yes.

M: But, there are some threats that you can make, that there are specific crimes for. Like threats online. Making threating phone calls. The words, in and of themselves, aren’t crimes, but it depends on how they are used. And there are certain categories, and boxes that you check off, that maybe it rises to the level of a different crime.

B: Okay.

M: Once you start talking about felony assaults, and felony batteries, the general area that were talking about is whether or not there was a weapon used. Or, whether or not, there was a serious bodily injury. So, an aggravated assault on a person is the same thing as a misdemeanor assault, a threat to carry out some type of harm to the other person with the apparent ability to do so. But it’s done while the person, making the threat, has a weapon. This comes up a lot with a firearm. In the state of Florida, pointing a firearm, at another individual, clearly would qualify as an aggravated assault. And, because it’s a firearm charge it has a specific minimum mandatory prison sentence which is three years in the Department of Corrections. Otherwise, if it’s not a firearm, if it’s a knife, a bat, some large object capable of causing harm, then there is no minimum mandatory prison sentence. But, it is punishable by up to five years in prison.

The unique scenario is when we start talking about felony batteries and aggravated batteries. So, those are when you actually make contact and hurt the person. And there’s two ways to have an aggravated battery. You can have an aggravated battery by taking a weapon, and hitting somebody with it. Or, you can have an aggravated battery by hitting somebody and intentionally causing serious bodily harm. For instance, a punch to somebody’s face can break an orbital bone in the face, maybe knock out a tooth. Those might qualify as aggravated batteries. Even if no weapon was used. Even if somebody just used their fists.

But to be convicted of an aggravated battery which, at a minimum, is 21 months in prison on Florida scoresheet. The way to get aggravated, without a deadly weapon, you have to prove that the person had the intent to cause that serious bodily harm. As a defense attorney I’d say a lot of the cases we get people arrested for aggravated battery when the have those lucky punch cases. Where there’s one punch, the guy ends up knocking a guy out and he falls to the ground and maybe fractures something. A lot of time they get arrested for an aggravated battery, but it’s very difficult I think for the state to prove what was the intent of the person striking the other individual. It’s hard to say that you hit somebody one time, and you intended to cause bone breakage. It’s one of those situations where a lot of times it’s a fluke. It happens. Maybe it’s just the right hit at the right moment and other things happen. So, what typically happens in those situations the more appropriate charge is if you hit somebody, and you don’t plan to cause serious bodily injury, but serious bodily injury does occur like you break an orbital bone, break a nose, knock out a tooth, that is what would be better classified as a felony battery. So, felony battery involves a serious bodily injury just like an aggravated battery, but the intent is different. That the person doing the hitting did not necessarily intend to cause that serious bodily injury, but he still responsible. And, it’s not a significant of a crime. There isn’t a minimum mandatory prison sentence typically associated with the felony battery charge. The other aspect of aggravated battery comes up where you can cause no harm to the other person all. Just the fact that you use a deadly weapon, and you hit that person with it. Maybe you hit the person with it and doesn’t cause any harm. That’s still aggravated battery punished the same way as if you caused serious bodily injury, and a person with no prior criminal history can get 21 months in Department of Corrections on Florida’s sentencing guidelines scoresheet. So, it’s a pretty significant type of charge to get involved with. It’s a second-degree felony punishable by up to 15 years in prison. That’s why a lot of work in the beginning is to determine whether, was there a weapon used, and if there wasn’t a weapon used, maybe this is something that we can show the prosecutor, show the court that the intent wasn’t there.

Then, obviously you move out of those areas, and there’s differences of who the victim is. For instance, you have an aggravated battery on a law-enforcement officer, is the same thing as an aggravated battery only the fact he’s a law-enforcement officer, carries with it a five year minimum mandatory prison sentence. So, it starts to get very serious when specific classes of persons are affected. There’s charges that specifically protect children from these types of crimes. There are charges that specifically protect elder individuals, that is that people over the age of 65. For instance, battery on an elderly individual is a felony. It’s a third-degree felony, but certainly can carry with it a significant prison sentence up to five years. And then there’s battery on a pregnant female. That’s where an individual is pregnant, and any kind of touching that would qualify as a battery, even misdemeanor, a push, would be a felony in that instance, and it’s a second-degree felony (Level 7) punishable by up to 21 months. I’m sorry, a minimum of 21 months in prison.

B: Mike, you mind if I ask a question real quick?

M: Yeah, sure.

B: We’re talking specifically on this, just Pascoe County violent crimes. But, I know you guys cover the greater Tampa area. And you might not have these numbers, but do you get, you know a lot of these cases, violent crimes cases, from Pascoe County or Pinellas County or do you notice a different area? And I’m not trying to say what part of Tampa’s bad.

M: I can tell you we get calls from all over the Tampa Bay area. I can’t say necessarily there’s one, you know, violent type of crime that I get from one area more than another.

B: Okay.

M: I think it’s pretty evenly divided. A lot of times is, the ideas is, there is sometimes a very aggressive push on enforcement to charge with the highest crime possible.

B: Okay.

M: It’s kind of the way that their trained. And, it’s the way their taught. You look for the highest crime you can arrest a person for. So, I think you kind of see that happen in a lot of areas. There are people who get arrested for a second-degree felony, are facing prison for getting an argument with maybe their wife who happened that just find out she’s pregnant, and there’s a push. And don’t get me wrong, it’s completely inappropriate, unwarranted, but to go to prison for a push is something that might shock the conscience of a lot of folks out there.

B: Okay.

M: So, that pretty much wraps up the battery and the assault charges. Obviously, there’s a lot of ways you can find a specific category. But, that’s the general understanding for what Florida punishes for violent crimes like assault and battery.

B: And that’s what we’re going to be talking about on the next podcast – assault and battery. We’ll go a little bit more in depth on that. You’ve been listing to the floridadefense.com podcast, and we been speaking to Pascoe County violent crimes lawyer Mike Kenny. And, join us on our next podcast.