Criminal Mischief Defense Attorney
Skilled St. Petersburg Criminal Defense
Criminal mischief is a lessor included offense of arson. Both crimes involve the willful and unlawful destruction of property, but arson includes an element that criminal mischief does not: destruction by fire or explosion. There are some other differences as well. For example, the are no "misdemeanor" arson offenses in Florida, no matter how inconsequential the resulting property damage is or the cost of repair. All arson offenses constitute felonies; it is only a matter of degree. Also, a person can be charged with arson for damaging or destroying their own property by fire or explosion. To constitute criminal mischief, however, the property involved cannot be your own; it must be property of another. Finally, many of the draconian sentencing enhancements that can apply in arson cases (such as the prison release re offender enhancement) do not apply to criminal mischief offenses, even where a felony is charged.
In Florida, criminal mischief offenses typically constitute misdemeanors. If the damage to property is $200.00 or less, the offense is a misdemeanor of the second degree. A second degree misdemeanor is punishable by up to sixty days in the county jail and up to six months of probation, but the total sentence cannot exceed six months (the judge cannot, for example, sentence the person to sixty days in jail to be followed by six months of probation). If the damage is greater than $200.00 but less than $1,000.00, the offense is a misdemeanor of the first degree. A first degree misdemeanor is punishable by up to one year in the county jail and/or one year of probation, but the total sentence cannot exceed one year.
If the resulting damage to property is $1,000.00 or greater, the offense constitutes a felony of the third degree, which is punishable by up to five years in the Florida Department of Corrections. Unlike arson offenses, criminal mischief offenses do not score particularly high on the sentencing guidelines (level one or two depending on the underlying circumstances) which means an accused person will not be scoring prison unless there are additional and more serious felony offenses before the court for sentencing, or the person has a significant prior record.
A person may also be charged with a third degree felony if she or she has one or more prior convictions for criminal mischief no matter how minor the resulting property damage is (i.e. if it is less than $200.00 and the person would have otherwise been charged with a second degree misdemeanor, the prior conviction will result in a reclassification to a third degree felony). If the property involved is a place of worship, any damage greater than $200.00 constitutes a felony. The same rule applies if the property involved is a sexually violent predator detention or commitment facility. Finally, damage to a public telephone (or any of its components) which renders it inoperable constitutes a felony as long as there is a written warning conspicuously placed at the time the offense is committed. With regard to the telephone or its components, the amount of damage is irrelevant.
As with any criminal matter, the sooner an experienced St. Petersburg, Clearwater, Tampa area criminal defense attorney can become involved in your criminal mischief case, the better chance you will have for a favorable outcome. Sometimes, what would otherwise constitute a felony offense may be charged as a misdemeanor, pursuant to pre-filing negations with the prosecutor. In other instances, the charge may be outright dropped in exchange for a restitution payment where the alleged victim consents. Please know that these are just examples; every case is different and what may be accomplished in one case may not necessarily be accomplished in another. The point remains, however, that early intervention is critical and may very well impact the resolution of your St. Petersburg, Clearwater, or Tampa area criminal mischief charge.
In recent years, the Florida legislature has really cracked down on graffiti, the placement of which constitutes criminal mischief. If damage to property involves the placement of graffiti, the court is required by law to impose certain minimum fine amounts. For a first offense, the fine amount cannot be less than $250.00, for a second offense the minimum fine amount is $500.00, and for a third or subsequent offense, the minimum fine amount is $1,000.00. If the defendant is minor (and the damage involves the placement of graffiti), the court is required by law to suspend or delay issuance of the person's driver's license for not more than a year. If the minor's license is suspended, the court is required to extent the period of suspension otherwise applicable by not more than a year. You should be aware that the statute allows the minor to reduce the suspension by one day for each hour of community service performed, which must involve cleaning graffiti from public property.
While not as severe as its arson counterpart, criminal mischief offenses are serious nonetheless with some grave potential consequences, including jail or prison time, heavy fines, probation, loss of your privilege to drive, community service hours, and payment of restitution. If you have been arrested or charged with criminal mischief in St. Petersburg, Clearwater, Tampa or a surrounding area, an experienced criminal defense attorney can help. Feel free to contact our office any time.
Applicable Florida Statute
Florida Statute section 806.13 provides as follows:
- (1)(a) A person commits the offense of criminal mischief if he or she willfully or maliciously injures or damages by any means any real or personal property belonging to another, including but limited to, the placement of graffiti thereon or other acts of vandalism thereto. (b)1. If the damage to such property is $200.00 or less, it is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. 2. If the damage to such property is greater than $200.00 or less than $1,000.00, it is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. 3. If the damage is $1,000.00 or greater, or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000.00 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084. 4. If the person has one or more previous convictions for violating this subsection, the offense under subparagraph 1. or subparagraph 2. for which the person is charged shall be reclassified as a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
- (2) Any person who willfully and maliciously defaces, injures, or damages by any means any church, synagogue, mosque, or other place of worship, or any religious article contained therein, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the damage to the property is greater than $200.00.
- (3) Whoever, without the consent of the owner thereof, willfully destroys or substantially damages any public telephone, or telephone cables, wires, fixtures, antennas, amplifiers, or any other apparatus, equipment, or appliances, which destruction or damages renders a telephone inoperative, or which opens the body of a public telephone, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; provided, however, that a conspicuous notice of the provisions of this subsection and the penalties provided is posted on or near the destroyed or damaged instrument and visible to the public at the time of the commission of the offense.
- (4) Any person who willfully and maliciously defaces, injures, or damages by any means a sexually violent predator detention or commitment facility, as defined in part V of chapter 394, or any property contained therein, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; if the damage to property is greater than $200.00.
- (5)(a) The amounts of value of damage to property owned by separate persons, if the property damaged was during one scheme or course of conduct, may be aggregated in determining the grade of the offense under this section.(b) Any person who violates this section may, in addition to any other criminal penalty, be required to pay for the damages caused by such offense.
- (6)(a) Any person who violates this section when the violation is related to the placement of graffiti shall, in addition to any other criminal penalty, be required to pay a fine of: 1. Not less than $250.00 for a first conviction. 2. Not less than $500.00 for a second conviction. 3. Not less than $1,000.00 for a third or subsequent conviction. (b) Any person convicted under this section when the offense is related to the placement of graffiti shall, in addition to any other criminal penalty, be required to perform at least 40 hours of community service and, if possible, perform at least 100 hours of community service that involves the removal of graffiti. (c) If a minor commits a delinquent act prohibited under subparagraph (a), the parent or legal guardian of the minor is liable along with the minor for payment of the fine. The court may decline to order a person to pay a fine under paragraph (a) if the court finds that the person is indigent and does not have the ability to pay the fine or if the court finds that the person does not have the ability to pay the fine whether or not the person is indigent.
- (7) In addition to any other penalty provided by law, if a minor is found to have committed a delinquent act under this section for placing graffiti on any public property or private property, and: (a) The minor is eligible by reason of age for a driver's license or driving privilege, the court shall direct the Department of Highway Safety and Motor Vehicles to revoke or withhold issuance of the minor's driver's license or driving privilege for not more than 1 year. (b) The minor's driver's license or driving privilege is under suspension or revocation for any reason, the court shall direct the Department of Highway Safety and motor vehicles to extend the period of suspension or revocation by an additional period of not more than 1 year. (c) The minor is ineligible by reason of age for a driver's license or driving privilege, the court shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of the minor's driver's license or driving privilege for not more than 1 year after the date on which he or she would otherwise have become eligible.
- (8) A minor whose driver's license or driving privilege is revoked, suspended, or withheld under subsection (7) may elect to reduce the period of revocation, suspension, or withholding by performing community service at a rate of 1 day for each hour of community service performed. In addition, if the court determines that due to a family hardship, the minor's driver's license or driving privilege is necessary for employment or medical purposes of the minor or a member of the minor's family, the court shall order the minor to perform community service and reduce the period of revocation, suspension, or withholding at a rate of 1 day for each hour of community service performed. As used in this subsection, the term "community service" means cleaning graffiti from public property.
- (9) Because of the difficulty of confronting the blight of graffiti, it is the intent of the Legislature that municipalities and counties not be preempted by state law from establishing ordinances that prohibit the making of graffiti or other graffiti related offenses. Furthermore, as related to graffiti, such municipalities and counties are not preempted by state law from establishing higher penalties than those provided by state law and mandatory penalties when state law provides discretionary penalties. Such higher and mandatory penalties include fines that do not exceed the amount specified in ss. 125.69 and 162.21, community service, restitution, and forfeiture. Upon a finding that a juvenile has violated a graffiti related ordinance, a court acting under chapter 985 may not provide a disposition of the case which is less severe than any mandatory penalty prescribed by municipal or county ordinance for such violation.
Applicable Jury Instructions
Florida Standard Jury Instruction 12.4 provides as follows:
To prove the crime of criminal mischief, the State must prove the following three elements beyond a reasonable doubt:
- (1) The defendant injured or damaged [real][personal] property.
- (2) The property injured or damaged belong to (person alleged).
- (3) The injury or damage was done willfully and maliciously.
Among the means by which property can be injured or damaged under the law is the placement of graffiti on it or other acts of vandalism to it.
"Willfully" means intelligently, knowingly, and purposely.
"Maliciously" means wrongfully, intentionally, and without legal justification or excuse, and with the knowledge that injury or damage will or may be caused to another person or the property of another person.
If you find the defendant guilty of criminal mischief, you must determine whether the state proved beyond a reasonable doubt that:
- a. [the damage to the property was $1,000.00 or greater.][by reason of the damage, there was an interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which cost $1,000.00 or more in labor and supplies to restore.]
- b. [the damage to the property was greater than $200.00 but less than $1,000.00]
- c. [the damage to the property was $200.00 or less]
- d. [the property damaged was a church, synagogue, mosque, or other place of worship or any religious article contained therein].
- e. [the defendant has previously been convicted of criminal mischief].
The amounts of damage to property owned by separate persons, if the property was damaged during one scheme or course of conduct, may be aggregated in determining the total value.
Early intervention by an experienced St. Petersburg Criminal Defense Lawyer can signifcantly mitgate, or elimiate, the impact of a criminal mischief charge. Contact The Kilfin Law Firm, P.C. at (888) 258-8049 to discuss your case. Evening and weekend appointments are always available.
Defenses To Your St. Petersburg, Clearwater, or Tampa Area Criminal Mischief Charge
Not unlike arson cases, lack of sufficient ID may prove to be a viable defense to your criminal mischief charge. Often times, people do not commit vandalism in the presence of potential witnesses; criminal mischief is, in that sense, a crime of opportunity. It may be be difficult to establish a motive (to in turn develop a potential suspect) in cases involving the placement of graffiti. However, in a case where a girlfriend's tires were slashed the same night she broke up with her boyfriend (for example), the boyfriend may be someone law enforcement would have interest in talking to. An admission, of course, would very likely result in an arrest or subsequent prosecution. As with all cases involving a purported admission, the circumstances under which it was made must be carefully analyzed by the criminal defense attorney for irregularities in procedure which may result in the statement(s) being suppressed.
Depending on the circumstances, another viable defense may involve lack of intent or accident. Where, for example, a baseball goes through a neighbor's window, there are no witnesses who can refute accident as the cause, and there is no apparent motive to destroy the owner's property (such as a recent or ongoing feud), lack of intent may present a very viable defense.
Where the state can prove that the defendant committed the offense, and did so intentionally, your criminal defense attorney may want to have a separate estimate done of the damage. If it can be established that the damage is likely less than the threshold necessary to sustain a felony charge, the state may agree to file what would otherwise be a felony, as a misdemeanor. If the charge has already been filed, the state may agree to amend the felony to a misdemeanor offense prior to the entry of a plea. Depending on the nature and extent of the person's prior criminal record, a diversion program may be available, or the person may be eligible for a withholding of adjudication. This could apply to either a misdemeanor or a felony offense, but there are some important limitations on a court's authority to withhold adjudication in felony cases you should be aware of. For more information, see the "Client Solutions" section of our website. Specific questions about your case, including the defenses may or may not be viable, should be directed to an experienced St. Petersburg area criminal defense lawyer.
The following is a list of outside sources, prior blog posts, and other webiste sections on topics related to criminal mischief offenses:
- HG. Org: St. Petersburg Criminal Mischief Attorney
- HG. Org: St. Petersburg Arson Attorney
- Florida Department of Highway Safety and Motor Vehicles
- Do I Need a St. Petersburg Criminal Defense Attorney?
- They Never Read Me My Rights - Can My Charge Be Dismissed?
- Florida's Principal Statute: All For One and One For All
- Speedy Trial in Florida: An Overview
- Affecting the Filing Decision
- Pre-Trial Diversion
- Withholding of Adjudication
- Plea Negotiations
- Defensive Motions
- Probation Violations
- Sealing & Expunging
The Bottom Line
Criminal mischief is a lessor included offense of arson. While not as serious, these types of crimes can nonetheless have a lasting adverse impact on a person's future - particulalry where a felony has been charged. Often times, there is much that can be done by an experienced St. Petersburg area criminal defense attorney to reduce, or eliminate, the impact of a criminal mischief charge. If you have been arrested for criminal mischief, contact The Kilfin Law Firm, P.C. Attorney Donald J. Kilfin has handled countless criminal mischief offenses as both a Pinellas County state prosecutor and a Tampa Bay area criminal defense attorney over the past sixteen years.
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