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Articles Posted in Assault

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In Miami, a prosecutor charging you with aggravated assault must show: (1) you intentionally and illegally threatened to do violence to a victim, (2) you appeared to have the ability to carry out your threat, (3) your threat created the victim’s well-founded fear violence was going to happen and (4) your assault was committed with a deadly weapon or with a fully formed conscious intent to perpetrate a felony. In a recent appellate case, the defendant appealed convictions and sentences for aggravated assault. The case arose when the defendant got drunk and went to his dad’s house where he accused his dad of stealing a gun. He asked where it was and, holding a knife, threatened to slit his dad’s throat if he didn’t get the gun.

The defendant’s dad fled the house and called 911. Three deputies responded. The defendant went out with a gun and fired a shot into the air. The deputies ordered him to drop the gun but he refused and said they’d need to shoot him. There was a standoff and the defendant went back into the house and out another door. Later he was arrested.

At trial, the defendant asserted an insanity defense. A psychologist testified that his medication hadn’t been working and he’d had a manic episode that caused his behavior. The prosecutor called an expert who testified he wasn’t insane. The defendant objected to the prosecutor’s expert testimony claiming the expert wasn’t qualified to provide an opinion about sanity because he wasn’t a doctor, licensed psychologist or psychiatrist but was a mental health counselor with an education Ph.D. The objection was overruled, and the court found the prosecutor’s expert qualified. The defendant was convicted for five counts of aggravated assault.

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Victim statements can affect sentencing in a Miami aggravated assault case. In a recent appellate decision, the defendant pled no contest to aggravated assault and then appealed from the sentence. The defendant argued that the lower court had made a mistake in accepting the victim’s unsworn statement at sentencing, thereby violating section 921.143(1) of Florida Statutes.

The appellate court affirmed, explaining that the defendant hadn’t preserved his argument for review and there had been no fundamental error.

At the sentencing hearing, the victim wasn’t emotionally able to verbally speak to the court. Accordingly, the prosecutor offered an unsworn statement and other documents. The defense attorney responded by saying he wanted to cross-examine but didn’t object to most of the documents. The court asked the defense attorney whether it should review the prosecutor’s documents, including the unsworn statement, and the defense attorney told the judge to go ahead and review.

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Domestic violence cases typically conjure images of violence taking place in the home, but Florida’s law in this area encompasses a multitude of crimes, including false imprisonment and kidnapping. According to Florida law, kidnapping involves the confinement, imprisonment, or abduction of another against his or her will. The act must be done using force, secret, or threat and without any lawful authority.

Additionally, the defendant must possess the requisite intent, which must consist of one of the following:

  • The intent to hold the person for reward or ransom, or to use the person as a hostage or shield;
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