Defenses to Criminal Mischief in Florida

July 9, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, criminal mischief is a serious offense. Under Fla. Stat. Section 806.13, criminal mischief occurs when a person willfully or maliciously injures or damages any real or personal property by any means.

Examples of criminal mischief may include:

• Painting graffiti onto a public building
• Throwing a brick through someone’s window
• Damaging a historical monument

Criminal mischief is punishable as a second-degree misdemeanor if the property damage is $200 or less (punishable by 60 days in jail and a $500 fine), a first-degree misdemeanor if the damage is between $200 and $1,000 (punishable by up to 1 year in jail and a $1,000 fine), and a third-degree felony if the damage is over $1,000 (punishable by up to 5 years in prison and a $5,000 fine).

If someone is charged with criminal mischief, this can be extremely stressful. But various legal defenses exist to a charge of criminal mischief – one or more of which may be used depending on the facts of a case. This blog will explore defenses to criminal mischief.

For someone to be proven guilty of criminal mischief, the State must prove the following elements of the offense beyond a reasonable doubt:

• The defendant injured or damaged real or personal property
• The property injured or damaged belonged to the victim, or person who alleged the crime
• The injury or damage to the property was done willfully and maliciously

Note: A willful act occurs when it is done intentionally or knowingly, as opposed to accidentally or involuntarily. A malicious act occurs when it is done with ill will, hatred, spite or evil intent.

If someone is accused of criminal mischief, various legally valid defenses exist to the charge. The first of these is lack of intent (no malice or willfulness). As criminal mischief requires the damage caused to be intentional and malicious, accidental damage (or even damage due to negligence) is not considered criminal mischief. Sanchez v. State, 909 So.2d 981 (Fla 5th DCA 2005)

Examples of acts that do not constitute criminal mischief (despite damage to real property) due to a lack of willfulness and maliciousness may include:

• A car driver backs into his neighbor’s wooden fence, damaging it
• A janitor knocks over and breaks a projector while cleaning a classroom
• Two men are throwing a baseball, one of which accidentally throws the ball too hard and breaks a window

Another defense to criminal mischief is ownership or co-ownership of the property that was damaged. A person cannot be guilty of criminal mischief for damaging their own property.

If the person is a co-owner, this can also serve as a defense – unless the damage:

• Belongs only to the portion of property belonging to someone else (such as if someone co-owns a duplex and owns the first floor, but damages the second floor, which is owned by someone else)
• Is done with the intent to deprive a co-owner of their rightful interest in the property (such as slashing the tires during a breakup of a car jointly owned by you and your ex to prevent them from using it)

An additional defense to criminal mischief is consent of the property owner. If the owner of the property gave permission to alter or damage the property, this is considered a defense to the charge of criminal mischief as the damage if not unauthorized.

Examples may include:

• A muralist paints graffiti art on a storefront wall with the consent of a store owner
• John smashes Lisa’s backyard shed with a sledgehammer after she tells him he can “tear it down for firewood”

Yet another defense to criminal mischief may include a mistaken identity or alibi defense. If the identification of a defendant as the perpetrator of an act of criminal mischief is not credible (based on unreliable eyewitness testimony or grainy surveillance footage), a defendant may be able to argue they were not the person who committed the act.

Though it may not serve as a complete defense to the charges, an additional defense to an allegation of criminal mischief is challenging the value of the alleged property damage. The State must prove beyond a reasonable doubt that the actual value of the damage was in the range of what is charged. 

If the State relies mostly or entirely on the following non-tangible factors to calculate the damages estimate, this may present an opportunity for a damages challenge:

• The owner’s subjective estimate of the worth of the property
• Sentimental value attached to the property (“It was my mom’s old watch”)
• Speculative estimates that are untethered from repair or replacement costs, or expert analysis

Depending on the facts of the case, another defense may be the wrongful use of the transferred intent doctrine. Florida’s courts have ruled that if somebody intended to harm a person but instead unintentionally damages property (by accidentally breaking a car window with a punch intended to strike a person, for example), this is not criminal mischief. In the Interest of J.G., 655 So.2d 1284 (Fla 4th DCA 1995).

Though there are many lawful defenses to a charge of criminal mischief in Florida, certain others are not considered legally valid. These include:

• “I didn’t mean to do that much damage”: If someone intentionally damages property, the amount of damage does not need to be intended. Fla. Stat. Section 806.13 cares only about the actual value of the damage.
• “I was angry”: Retaliation, personal grievances, or being upset during an emotionally volatile situation does not negate culpability for criminal mischief.
• “I barely caused damage”: Willful and malicious damage to property is a crime under the statute regardless of how much damage it caused. 
• “I was drunk/on drugs”: Voluntary intoxication is not a defense in Florida (Fla. Stat. 775.051)

In sum, criminal mischief is a serious criminal offense in Florida. Depending on the value of the property damaged, someone may be charged with a second-degree misdemeanor (up to 60 days in jail and a $500 fine), a first-degree misdemeanor (punishable by up to 1 year in jail and a $1,000 fine), or a third-degree felony (punishable by up to 5 years in prison and a $5,000 fine).

However, there are many available defenses to a criminal mischief charge. These include a lack of willfulness and/or maliciousness (lack of intent), ownership or co-ownership, consent, alibi, mistaken identity, challenges to the damage value assessment, and more. 

In a criminal mischief case, it is vital to have the best representation possible, as this charge can carry heavy criminal and financial penalties. Don Pumphrey Jr. and the attorneys at Pumphrey Law have decades of experience fighting to win for clients across the state of Florida.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

  Social Share