Definition of Criminal Mischief
Under Section 806.13, Florida Statutes, criminal mischief is defined as the willful and and malicious causing of injury or damage, by any means, to any real or personal property belonging to another person. Under the statute and applicable case law, injury or damage to property can include acts of graffiti, vandalism, sabotage, defacement, breakage, and other destructive acts.
To prove the crime of criminal mischief at trial, the prosecution must establish the following three elements beyond a reasonable doubt:
- the defendant injured or damaged property (real or personal);
- the property injured or damaged by the defendant belonged to the alleged victim (identified by the prosecution);
- the injury or damage was done willfully and maliciously.
The term “willfully” means intentionally, knowingly, and purposely. “Maliciously” means wrongfully, intentionally, without legal justification or excuse, and with the knowledge that injury or damage may be caused to another person or the property of another person.
Criminal mischief is considered a “general intent” crime in that it merely requires an act that is willful (intentional) and wrongful (with evil intent and the knowledge that injury or damage will or may be caused). The offense is not a “specific intent” crime because there is no requirement in the statute that the act in question be done with the intent to injure or damage property. M.H. v. State, 936 So. 2d 1 (Fla. 3d DCA 2006).
In other words, to commit the crime of criminal mischief, a defendant does not have to specifically set out to cause damage to property. If the property is damaged as a result of an intentional and wrongful act carried out with the knowledge that damage may be caused to persons or property, this is sufficient to sustain a conviction. Id.
Acts Directed to Property
Although specific intent is not required in a prosecution for criminal mischief, the willful and malicious acts of the defendant must nonetheless be directed to the subject property, as opposed to the person of the victim.
Source: H.F. v. State, 927 So. 2d 163 (Fla. 3d DCA 2006 (acting with malice towards the person of a victim and incidentally damaging a phone was insufficient to sustain a conviction for criminal mischief); Sanchez v. State, 909 So. 2d 981 (Fla. 5th DCA 2005) (acting with malice toward the person of the owner of the property is not enough to support a conviction for criminal mischief); M.H. v. State, 936 So. 2d 1 (Fla. 3d DCA 2006) (willfully driving a stolen scooter through a fence with knowledge that the scooter may be damaged was sufficient evidence to support a conviction of criminal mischief because the malicious and willful acts were directed to property).
Requirement of Damage
Injury or damage to property is a required element of criminal mischief. The charge must be dismissed where there is no evidence of damage to the property at issue. C.B. v. State, 721 So. 2d 785 (Fla. 3d DCA 1998). Thus, where a juvenile pulls down a dilapidated fence at a mobile home park to climb over it, and the owner testifies that the fence had already been damaged from being previously used in such a manner, the evidence is insufficient to support a conviction for criminal mischief. J.W.S. v. State, 899 So. 2d 1276 (Fla. 2d DCA 2005).
Penalties for Criminal Mischief
The penalties for criminal mischief in Florida will vary according to the amount of damage caused to the subject property in the course of the offense.
- Where the property damage is valued at $200 or less, the person commits a second degree misdemeanor, punishable by up to 60 days in jail.
- Where the property damage is greater than $200 but less than $1,000, the offense is a first degree misdemeanor punishable by up to 1 year in jail.
- Where the amount of damage to the property exceeds $1,000, the offense is a third degree felony, punishable by up to 5 years imprisonment.
Although property value is not an element of criminal mischief, it does determine whether the offense will be charged as a felony or misdemeanor. Thus, a trial court errs in finding felony criminal mischief where the value determination derives from hearsay repair estimates, or from non-expert verbal testimony by the victim (without admissible repair estimates). S.P. v. State, 884 So. 2d 136 (Fla. 2d DCA 2004); A.D. v. State, 866 So. 2d 752 (Fla. 2d DCA 2004).
Defenses to Criminal Mischief
There are numerous defenses available to contest a criminal mischief charge. Some of the more common defenses include the following:
- Did the damage result from the conduct of the accused?
- Did the alleged victim actually own the property, or was the property jointly owned or possessed by the accused and the alleged victim?
- Was the act that caused the damage willful, or did it occur in the midst of an altercation?
- Was the damage caused by the act accidental?
- Was the malicious act of the accused directed to the person of the alleged victim, or to property?
- Was it the alleged victim’s conduct that actually caused the damage to the property?
- Was there a legal justification for the accused’s conduct?
- Were there extenuating circumstances excusing the accused’s conduct?
- Was the conduct of the accused necessary to protect himself or to protect others?
- Is there some other circumstance in the case to support an argument that the accused’s conduct was not “wrongful?”
Contact an Attorney
If you have been arrested for criminal mischief, malicious mischief, or vandalism in Palm Beach County, Florida, you should consult with an experienced criminal attorney immediately to discuss your legal options. There may be defenses available to contest the charge or to minimize the penalties you may face. Contact Steven Sessa today for a free consultation.