Major Florida Court: Hearsay Damage Estimate Cannot Serve As Basis For Criminal Mischief Conviction

December 4, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 2nd District Court of Appeal held that a juvenile could not be adjudicated delinquent of felony criminal mischief when the sole estimate that the damages were above $1,000 came from a third party that did not testify.

In Florida, criminal mischief (Fla. Stat. 806.13) is a very serious offense. For someone to be guilty, the State must prove beyond a reasonable doubt that they willfully and maliciously damaged the real or personal property of another person without that person’s consent.

The severity of the penalties someone may face if found guilty of criminal mischief depends on the amount of damage caused. Florida law provides:

• If the damage is under $200, criminal mischief is a second-degree misdemeanor (up to 60 days in jail and a $500 fine)
• If damage is between $200 and $1,000, criminal mischief is a first-degree misdemeanor (up to 1 year in jail and a $5,000 fine)
• If the damage is over $1,000, criminal mischief is a third-degree felony (up to 5 years in prison and a $5,000 fine)
• If over $200 of damage is caused to a historical monument or religious facility (e.g. church or synagogue), criminal mischief is a third-degree felony 

As you may notice, the potential penalties are largely determined by the amount of damage that the defendant allegedly caused. For more on the sentencing scheme for criminal mischief, under Florida law, click here.

In a criminal mischief case, there occasionally will be no dispute as to the fact that the defendant willfully and maliciously damaged the property of another (though there are many defenses to the charge – which you can read about here). However, a common point of contention is how much damage was actually inflicted by the defendant.

Florida’s courts are consistent that this cannot simply be “eyeballed” by a judge or jury (the finder of fact). The State must prove as an element of criminal mischief how much damage the defendant caused beyond a reasonable doubt. 

If the State fails to prove a monetary amount of the damages (e.g. proves that there was damage, but not how much), a defendant is usually only guilty of second-degree misdemeanor criminal mischief. Clark v. State, 746 So. 2d 1237 (Fla. 1st DCA 1999). Thus, evidence of damage value is a key aspect of many criminal mischief trials.

Often, estimates of damages in criminal mischief cases will come from sources such as receipts provided by repair shops, or expert testimony. But what happens when the only estimate of the monetary value of damages allegedly caused by a defendant comes from inadmissible hearsay?

Hearsay is an out of court statement offered in court to prove the truth of the statement. So, can someone else (e.g. the victim whose property was damaged) testify that someone else (who is not testifying) gave them a damages estimate? And if that “hearsay estimate” is the sole evidence of damages, can a defendant be found guilty of that amount based solely on hearsay?

The answer is no, because hearsay damage estimates are inadmissible at criminal mischief trials (cannot be used as evidence). Let’s take a look at a major Florida criminal mischief case, T.B.S. v. State, 935 So.2d 98 (Fla. 2d. DCA 2006), and how it handled this key legal issue.

KEY CASE: T.B.S. v. State, 935 So.2d 98 (Fla. 2d. DCA 2006)

In T.B.S., a juvenile defendant (T.B.S.) was charged with felony criminal mischief (over $1,000 in damages) after allegedly breaking out five windows of the victim’s vehicle. T.B.S. was found delinquent (juvenile equivalent of a guilty verdict) by a judge at a bench trial.

At trial, the alleged victim (owner of the vehicle) testified that she was given an estimate by an unidentified third party that the damage to her vehicle inflicted by T.B.S. totaled $1,000. T.B.S. objected to the estimate, arguing this was inadmissible hearsay because it was an out of court statement by a third party offered in court for its truth (that the damage was $1,000).

The trial judge denied the objection and allowed the “hearsay estimate” into evidence. The judge eventually adjudicated T.B.S. delinquent of felony criminal mischief ($1,000 or more) based on the hearsay damage estimate offered by the victim during her testimony.

On appeal to Florida’s 2nd District Court of Appeal (Greater Tampa area), T.B.S. challenged the adjudication of delinquency. T.B.S. asserted the hearsay objection should have been sustained, and that the alleged victim’s testimony was the only evidence of monetary value of the damages. Thus, T.B.S. could be found guilty only of second-degree misdemeanor criminal mischief.

The 2nd DCA agreed with T.B.S. and reversed the adjudication of delinquency for third-degree felony criminal mischief. The 2nd DCA observed:

“The only evidence of the monetary value of the damage to the victim’s car was the victim’s testimony that based on an estimate she had obtained, the damage was $1000. The defense objected to this testimony, but the trial court overruled the objection. Also, at the close of the evidence the trial court denied the defense’s motion to dismiss for failure to prove the $1000 threshold. The trial court ruled that based on the photographs of the damaged car, the description of the damage, and the victim’s testimony, the damage exceeded $1000.”

Though the 2nd DCA acknowledged there was photographic evidence of the damaged car and the description of the damage, a damages finding of $1,000 or more (felony threshold) could not have been inferred from anything other than the alleged victim’s “hearsay estimate” – which was erroneously admitted into evidence at trial:

“The trial court erred in overruling defense counsel’s objection to the victim’s testimony because it constituted inadmissible hearsay. See R.A.P. v. State, 575 So.2d 277 (Fla. 1st DCA 1991) (holding that victim’s testimony, which was properly objected to, as to amount of damages was inadmissible hearsay because it was based on estimates he received from body repair shops). Accordingly, the trial court erred in relying on the victim’s estimate of the value of the damage to her car in ruling that the damage exceeded $1000.”

Because the trial court erred in excluding the hearsay that laid the foundation for adjudicating T.B.S. delinquent of felony criminal mischief, the 2nd DCA held that the felony delinquency finding could not stand. 

However, the 2nd DCA found that the other evidence introduced other than the hearsay estimate of the monetary value of the damages (photos and description of the damages) were sufficient to allow the trial court to infer the damages were greater than $200 (first-degree misdemeanor criminal mischief). The 2nd DCA concluded:

“A trial court may conclude ‘that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met…’ … The trial court articulated no life experience or other basis that would constitute sufficient evidence to support its finding that the damage to the victim’s car exceeded $1000.”

“The victim testified that five of her car windows, including the windshield and the back window, were smashed. That testimony was sufficient for the trial court to infer that the damage exceeded $200, the threshold for an adjudication of first-degree misdemeanor criminal mischief. … Accordingly, we reverse T.B.S.’s felony conviction and remand with instructions to enter an order adjudicating him delinquent for first-degree misdemeanor criminal mischief.”

The fact that the 2nd DCA entered a delinquency finding for first-degree misdemeanor criminal mischief rather than second-degree misdemeanor criminal mischief is intriguing. Critics may argue this defies the typical rule that failure to prove damages means a finding of second-degree criminal mischief must be entered (Clark).

However, supporters of the 2nd DCA’s decision would likely counter that the evidence in the record aside from the inadmissible hearsay estimate proved the damages totaled over $200. As a result, they would contend that entering a first-degree misdemeanor delinquency finding was appropriate.

In sum, T.B.S. v. State, 935 So.2d 98 (Fla. 2d. DCA 2006) is a major development in Florida’s corpus of case law surrounding criminal mischief. Inadmissible hearsay may not be used as a basis to estimate damages in a criminal mischief case.

If inadmissible hearsay is the sole evidence supporting a criminal mischief conviction (or adjudication of delinquency) above second-degree misdemeanor criminal mischief (e.g. third-degree felony or first-degree misdemeanor criminal mischief), this must be reversed as a matter of law.

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.

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