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.

Elements of the Offense

To prove the crime of Criminal Mischief at trial, the prosecution must establish the following three elements beyond a reasonable doubt:

  1. the defendant injured or damaged property (real or personal);
  2. the property injured or damaged by the defendant belonged to the alleged victim (identified by the prosecution);
  3. 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.

Intent to Damage Property

Florida appellate courts have split on the type of intent that is required to commit the offense of Criminal Mischief.

In at least two districts, criminal mischief is considered a “general intent” crime, requiring only that the defendant act willfully and maliciously towards the owner with the knowledge that injury or damage to property will or may be caused).  M.H. v. State, 936 So. 2d 1, 3 (Fla. 3d DCA 2006); J.R.S. v. State, 569 So. 2d 1323, 1325 (Fla. 1st DCA 1990) (defining the element of malice as “actual ill will or resentment” towards the property owner).

Under these decisions, there is no requirement that the act in question be done with the specific objective of injuring or damaging property.

In the Second, Fourth, and Fifth District Courts of Appeals, criminal mischief is considered a “specific intent” crime, requiring that the defendant act purposefully to damage or destroy the property of another.  Stinnett v. State, 935 So. 2d 632, 634 (Fla. 2d DCA 2006) (concluding that “the defendant must specifically intend to damage or destroy the property of another”) (citations omitted); Sanchez v. State, 909 So. 2d 981, 985 (Fla. 5th DCA 2005); In the Interest of J.G., 655 So. 2d 1284, 1285 (Fla. 4th DCA 1995) (stating that the offense of criminal mischief requires that the actor possess the specific intent to damage the property of another);

Proof of Malice

The determination of maliciousness must be based on “the circumstances surrounding the conduct which caused the damage.”  Walker v. State, 154 So. 3d 448, 450 (Fla. 3d DCA 2014). ‘Malice’ may not be inferred from the mere existence of property damage, and, in cases where a defendant directs his or her acts towards the person of the owner (as opposed to the property of the owner), malice may not be inferred on the basis of ‘transferred intent.’  Id.

Thus, criminal mischief does not occur where a defendant intentionally damages property for a purpose not arising from malicious or wrongful motives.  J.R.S. v. State, 569 So. 2d 1323, 1325 (Fla. 1st DCA 1990) (reversing adjudication of delinquency where the evidence showed that the defendant entered and damaged his parents’ home to get food); T.D.B. v. State, 85 So. 3d 1212, 1213 (Fla. 1st DCA 2012) (reversing adjudication where the State failed to present evidence inconsistent with a defendant’s reasonable hypothesis of innocence that he damaged a pool by accident).

Acts Directed to Persons

Although, in some districts, 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 owner’s property, as opposed to the person of the owner.

    • 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).

In felony prosecutions for criminal mischief, the State must not only show that the defendant’s acts resulted in property damage, but also prove beyond a reasonable doubt that such damage exceeded $1,000.  Marrero v. State, 71 So. 3d 881, 890-91 (Fla. 2011).

The showing of value must be based on competent evidence.  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).

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.

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 are facing prosecution for criminal mischief and are considering hiring an attorney, contact Hussein & Webber, P.L. for a free consultation. We handle cases in Jacksonville, Orlando, and the surrounding counties of northeast and central Florida.