The cases Defendant cites do not hold that assault is always a lesser included offense of battery. See Henderson, 370 So. 2d at 437; Rodriguez v. State, 263 So. 2d 267, 268-69 (Fla. Dist. Ct. App. 1972). Every federal court to consider this issue has found that aggravated assault in Florida qualifies as a violent felony.
Under the subsection with which Dominguez was charged, an individual could commit an aggravated battery by merely touching someone with a deadly weapon, without any resulting physical injury, and this does not qualify as a use of force. See United States v. Sanchez-Torres, 136 Fed.Appx. 644, 647-48 (5th Cir.2005) (Washington fourth-degree assault statute does not qualify as COV because it could be committed by an "offensive touching"); Rodriguez v. State, 263 So.2d 267, 268 (Fla.Dist.Ct.App. 1972) (defining aggravated battery as including an offensive touching). However, the touching of an individual with a deadly weapon creates a sufficient threat of force to qualify as a crime of violence.
The elements of assault [§ 784.011, Fla. Stat. (1989)] and the elements of battery [§ 784.03, Fla. Stat. (1989)] are distinctly different, and assault is not a necessarily lesser included offense subsumed in the offense of battery. See Rodriguez v. State, 263 So.2d 267 (Fla. 3d DCA), cert. denied, 267 So.2d 330 (Fla. 1972). Cf. Nelson v. State, 157 So.2d 96 (Fla. 3d DCA 1963), cert. denied, 165 So.2d 178 (Fla. 1964), disapproved in State v. White, 324 So.2d 630 (Fla. 1975).
Malczewski contends that the stabbing of the money bag carried by Dwain Reeder did not constitute an aggravated battery because there was never any actual contact between the knife which he wielded and Reeder. He contends further that in order for a battery to occur the victim or plaintiff must suffer an actual harmful or unconsented contact which is caused by the criminal defendant or tort-feasor. Goswick v. State, 143 So.2d 817 (Fla. 1962); Chorak v. Naughton, 409 So.2d 35 (Fla. 2d DCA 1981); Rodriguez v. State, 263 So.2d 267 (Fla. 3d DCA 1972). The state responds that the accusatory pleading establishes a harmful or offensive contact, stressing that it is a general proposition of criminal law that a battery may be against something carried by the victim.