Criminal mischief is simply damage to another person's property--think of it as a vandalism charge that typically erupts between neighbors or former lovers, or both. The charge has varying degrees of severity, depending upon the amount of damage done, ranging from a second degree misdemeanor (max 60 days jail, 6 months probation), all the way up to felony charges (over $1000 damage constitutes a felony). But damage alone does not constitute the crime of criminal mischief, if that were the case every auto accident would be criminal. In addition to property damage, criminal mischief requires that the damage be inflicted both "willfully and maliciously" to "anothers" property.

By including ``willfully and maliciously'' as elements of criminal mischief, the Florida legislature meant that the mischief must be intentional and without justification or excuse. As such, the legislature did not intend to make every mischievous act a crime. The definition of the crime itself implies that not all acts of mischief will rise to a criminal level, so long as the accused can show a justification or excuse. Unfortunately, there are not many cases out there that aid in determining what may constitute a justification or excuse under the statute.

A common theme in Florida court opinions on criminal mischief cases is their concern over the exact reason, or excuse, for the defendants' actions and its effect upon the malice element of criminal mischief. In J.R.S. v. State, 569 So. 2d 1323 (Fla. 1st DCA 1990), the juvenile defendant ran away from home, but came back later to a locked home. He was hungry, and in order to enter the house, J.R.S. had to "jimmy" the rear door, causing significant damage to the door. He was convicted of criminal mischief, but the appellate court overturned the conviction because J.R.S. had a reasonable justification or excuse for prying open and damaging the door to his locked home where he resided so that he could get in to eat. In other words, there was no malicious intent to damage his parents property, there was only an intent to get inside and eat.

Another defense to a criminal mischief charge involves whether or not the prosecution can prove that the act was done with "malice".  Now, it may be true that most criminal charges involve some sort of evil intent (or malice), but this is particularly important in criminal mischief charges in cases which can be interpreted as "accidents" rather than intentional acts.  For an analysis of whether or not an accident may cross the line to become a criminal mischief charge, check out my article "Can an Accident Be a Crime?".

When an accused has a good faith excuse or justification for the mischief, a valid defense exists. And, this action does not have to be technically prudent and may even be negligent––but without malice––theres no crime. Of course, the best thing to do if you find yourself accused in this situation is to call me, John Guidry, at any time, and well discuss your options. Thanks.