When is criminal mischief (vandalism) a felony in Florida?

Florida law does not use the word "vandalism" as the name of a crime. The charge is criminal mischief, and it covers a keyed car in a Fort Lauderdale parking garage, a phone thrown against a wall during an argument in Boynton Beach, a broken mailbox in Jupiter and spray paint on an overpass in Miami-Dade. Most of these cases start as misdemeanors in county court, but a repair estimate, a prior case or the kind of property can turn the same act into a felony. The general misdemeanor process is on our misdemeanor charges in South Florida page; this page explains where the felony lines fall and what comes with them.

What does the State have to prove?

Section 806.13(1)(a), Florida Statutes, defines the offense: a person commits criminal mischief by willfully and maliciously injuring or damaging, by any means, real or personal property belonging to another, "including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto." That sentence holds three separate questions. Was the damage willful and malicious, rather than an accident? Did the property belong to someone else? And how much damage was done? The answer to the last question usually sets the degree.

Criminal mischief is also one of the offenses for which an officer may arrest without a warrant on probable cause, even if the officer did not see it happen (s. 901.15(9)(b)). That is why many of these arrests follow a neighbor's or an ex-partner's call rather than an officer's own observation.

When does criminal mischief become a felony?

The jail and fine ceilings come from ss. 775.082 and 775.083. The prior-conviction rule is the one that catches people: a second case with $50 of damage is still a felony if there is a previous criminal mischief conviction (s. 806.13(1)(b)4.). Subsection (4) is aimed at people who occupy or trespass on a home or business and damage it, and it reaches second degree. When the entry itself is the main charge, the rules are in the penalty for trespassing in Florida.

How is the amount of damage decided?

Because the degree depends on dollars, the damage figure is often the most important number in the file. The statute grades the offense by "the damage to such property," and it allows the State to add together damage to property owned by different people if it happened during "one scheme or course of conduct" (s. 806.13(8)(a)). Three smashed car windows on one street in one night can therefore be charged as one felony even if each window cost under $1,000.

The State proves the amount with evidence, usually an estimate, an invoice or testimony from the owner. Estimates can include work unrelated to the incident, earlier damage or upgrades. A close look at what was actually damaged, photographs from the day, and an independent estimate can matter a great deal when the claimed figure sits near $200 or $1,000.

Restitution is a separate step. The court must order the defendant to pay the victim for damage caused by the offense unless it finds clear and compelling reasons not to, and payment becomes a condition of any probation (s. 775.089(1)(a)). Restitution is set on a fair market value basis unless a party shows that another basis, such as replacement cost or actual cost of repair, is equitable and better serves the purposes of restitution (s. 775.089(7)(b)). Disputes are decided by the judge by the preponderance of the evidence, and the State Attorney has the burden of showing the amount of the loss (s. 775.089(7)(c)). The court may set installments, ending no later than the end of probation when probation is ordered (s. 775.089(3)). Section 806.13(8)(b) separately allows a court to require payment for the damage in addition to any other penalty.

What extra penalties come with graffiti?

Graffiti cases carry mandatory add-ons that ordinary criminal mischief does not. On top of any other sentence, a person convicted of a graffiti-related violation must pay a fine of at least $250 for a first conviction, $500 for a second and $1,000 for a third or later conviction (s. 806.13(9)(a)). The person must also perform at least 40 hours of community service and, if possible, at least 100 hours that involve removing graffiti (s. 806.13(9)(b)). The court may decline the fine if the person cannot pay it (s. 806.13(9)(c)).

When the person is a minor, the parent or legal guardian is liable with the minor for the fine (s. 806.13(9)(c)). For a minor found to have committed a graffiti offense, the court may also direct the Department of Highway Safety and Motor Vehicles to revoke or withhold the driver license for up to 1 year, extend a current suspension by up to 1 year, or delay first eligibility by up to 1 year (s. 806.13(10)). The minor can shorten that period by cleaning graffiti from public property, 1 day off for each hour of community service, and on a showing of family hardship tied to work or medical needs the court must order that reduction (s. 806.13(11)). Cities and counties may also pass graffiti ordinances with higher penalties (s. 806.13(12)). The juvenile side of these cases is covered in what happens after a juvenile arrest in Palm Beach or Broward.

How does a criminal mischief case move in South Florida?

1. Arrest or notice to appear. An officer may arrest on probable cause (s. 901.15(9)(b)) or release the person on a notice to appear for a misdemeanor (Rule 3.125). A booked person sees a judge within 24 hours (Rule 3.130(a)).
2. Which court. Misdemeanor criminal mischief is a county court case (s. 34.01); the felony tiers go to circuit court (s. 26.012).
3. Palm Beach. County criminal cases are split among four regions under Administrative Order 4.603. Boca Raton, Boynton Beach and Delray Beach police cases go to the South County Courthouse in Delray Beach, northern cases to the North County Courthouse in Palm Beach Gardens, and central cases to the main courthouse in West Palm Beach.
4. Broward. County criminal judges sit at the Central Courthouse, 201 SE 6th Street, Fort Lauderdale, and at satellite courthouses in Hollywood, Plantation and Deerfield Beach. The State Attorney's Misdemeanor Diversion Program is for first-time offenders, decided at arraignment, at $150 per defendant with no refunds; its Felony Pre-Trial Intervention program, operated by the Department of Corrections, accepts defendants charged with a qualifying third-degree felony.
5. Miami-Dade and Martin. Miami-Dade county criminal cases are heard at the Gerstein Justice Building and branch courts, and the State Attorney's Pre-Trial Diversion drops the charges when a participant completes every condition and stays arrest-free. Martin County cases are heard at the courthouse at 100 SE Ocean Blvd in Stuart.
6. Statewide diversion. Pretrial intervention under s. 948.08(2) covers a misdemeanor or third-degree felony for a first offender or someone with no more than one prior nonviolent misdemeanor, with the consent of the victim, the State Attorney, the administrator and the judge. Because the victim's consent is required, paying for the damage often comes up early.

The county programs are compared in pretrial diversion in Palm Beach and Broward. For Broward arrests in particular, see criminal cases in Broward County.

What changes the answer?

• The dollar figure. $200 and $1,000 are the lines (s. 806.13(1)(b)), and the State may combine damage from one course of conduct (s. 806.13(8)(a)).
• A prior conviction. One earlier criminal mischief conviction turns a misdemeanor-level case into a third-degree felony (s. 806.13(1)(b)4.).
• The kind of property. Places of worship, memorials and historic property, public telephones and public services have their own rules (s. 806.13(1)(b)3., (2), (3), (5)).
• Intent. The statute requires willful and malicious damage. An accident, or damage done while trying to get out of a dangerous situation, is a different set of facts.
• Ownership. The property must belong to another. Who owns a car, a phone or a television is not always simple when people share a home.
• A partner or family member. Damage during an argument at home can bring no-contact conditions and the domestic violence first appearance process, described in what happens after a domestic violence arrest.
• Sentencing on a felony. Criminal mischief is not on the list of forcible felonies (s. 776.08), so a third-degree criminal mischief score of 22 points or fewer generally calls for a nonstate prison sanction unless the judge makes written findings of danger to the public (s. 775.082(10)). The point system is explained in how a felony sentence is calculated.

A worked example

For example, imagine a hypothetical 22-year-old in Coral Springs, with no record, who scratches the side of an ex-partner's car with a key after a breakup. The owner's body shop estimate is $1,350, so the arrest report lists third-degree felony criminal mischief under s. 806.13(1)(b)3. A closer look shows the estimate includes repainting a bumper that was already damaged; a second estimate for the scratched panels alone comes in at $780. If the State accepts the lower number, the case fits the first-degree misdemeanor tier in s. 806.13(1)(b)2., which moves it from circuit court to county court. Either way, restitution would be ordered for the damage he caused (s. 775.089), and a first offender in Broward may ask about Felony Pre-Trial Intervention or the Misdemeanor Diversion Program, depending on the charge. This is a hypothetical walk-through of the statutes, not a client's case or a prediction of any result.

Common mistakes in criminal mischief cases

• Accepting the owner's estimate without asking what it covers.
• Contacting the owner directly to "settle it," which can break a no-contact condition or be read as pressure on a witness. Restitution and the victim's consent to diversion should go through counsel.
• Forgetting an old criminal mischief conviction, even from another county, that can make the new case a felony.
• Posting about the incident, or about the person whose property was damaged, on social media.
• Pleading at the first court date with the waiver on a notice to appear (Rule 3.125(k)(1)) before knowing how an adjudication would affect sealing.
• Missing the court date, which leads to a warrant (Rule 3.125(h)), as covered in what happens if you miss a court date.

What to do this week

1. Find the statute and subsection on the paperwork, and note whether it lists a dollar amount.
2. Photograph anything you still have access to and write down what was damaged, by whom and how.
3. Ask for, or have your lawyer request, the estimate or invoice the State is relying on.
4. List any prior arrests or pleas, with dates and outcomes.
5. Follow every release condition, especially any no-contact order.
6. Talk with a defense lawyer about diversion and restitution before arraignment.

Frequently asked questions

Is keying a car a felony in Florida?

It depends on the damage. Under $1,000 it is a misdemeanor, unless the person has a prior criminal mischief conviction; $1,000 or more is a third-degree felony (s. 806.13(1)(b)).

Does paying for the damage end the case?

Paying does not end a criminal case by itself; only the State Attorney or the court can do that. Repayment can matter, though, because pretrial intervention needs the victim's consent (s. 948.08(2)) and the court must order restitution on a conviction unless it finds clear and compelling reasons not to (s. 775.089(1)(a)).

Is it criminal mischief if the damage was an accident?

The statute requires that the damage be willful and malicious (s. 806.13(1)(a)). An accident does not meet that definition, although the owner may still pursue payment outside the criminal case.

Are parents responsible when a child does graffiti?

For the graffiti fine, yes: the parent or legal guardian is liable with the minor (s. 806.13(9)(c)). The court may also act on the minor's driver license (s. 806.13(10)).

What is the penalty for damaging a church or a memorial?

Damage over $200 to a place of worship, a religious article inside it, or a memorial or historic property is a third-degree felony, and for memorials the court must order the full cost of repair or replacement (s. 806.13(2), (3)).

Can a criminal mischief record be sealed?

Criminal mischief is not on the list of offenses barred from sealing (s. 943.0584). A dismissal is usually sealed automatically (s. 943.0595(2)), while a withhold may be sealed by petition if the person was never adjudicated guilty of a criminal offense (s. 943.059(1)(b)), as explained in what a withhold of adjudication means.

How can Mr. Mead help?

Mr. Mead has more than three decades of criminal defense experience in South Florida courts. In a criminal mischief case, he looks at how the damage figure was reached, whether the State can prove the damage was willful and malicious, who owned the property, whether diversion fits, and how restitution and each possible plea would affect your record. Every case is different, and no result can be promised. The consultation is free, and you can call (561) 362-6677 24 hours a day.

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