MARGARET MEENAGHAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Margaret Meenaghan was convicted of burglary and felony criminal mischief as a lesser included offense to arson. The Fourth District Court of Appeal reversed her felony criminal mischief conviction because the charging document failed to allege the amount of damage, which is an essential element of felony mischief under Florida law.
The court reversed the felony criminal mischief conviction, holding that the amount of damage is an essential element of felony criminal mischief and must be alleged in the charging document before a jury instruction on such offense is permitted. The court remanded for modification of the judgment to substitute a conviction for second degree misdemeanor mischief and for resentencing on both counts.
[1] A jury instruction on a category two lesser included offense is impermissible if the charging document does not allege facts supporting that offense.
[2] The amount of damage caused is an essential element of felony criminal mischief.
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Join FLexlaw to unlock all legal intelligence“The state does not dispute that the charging document must reflect the commission of a category two lesser included offense before an instruction on such an offense is permitted.”
Establishes the governing legal principle from State v. Daophin that charging documents must allege category two lesser included offenses
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with arson and burglary. At trial, the jury convicted her of burglary and felony criminal mischief as a lesser included offense …
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STONE, Judge.
We reverse appellant’s conviction for felony criminal mischief. The appellant was charged with arson and burglary and was convicted of the burglary and of felony criminal mischief as a lesser included offense to the arson.
Misdemeanor mischief is a category one lesser included offense, and felony mischief is a category two lesser included offense, to the charged offense of arson. Section 806.13, Florida Statutes, provides that criminal mischief is a felony where the damage caused by the mischief exceeds $1,000. Criminal mischief which results in damages less than $200 is a second degree misdemeanor. The trial court erred by instructing the jury on felony mischief, because the information did not allege the amount of damage caused by the arson. At the charge conference, the appellant objected to the state’s request for a felony mischief instruction, contending that only second degree misdemeanor mischief is a category one lesser included offense of arson.
The state does not dispute that the charging document must reflect the commission of a category two lesser included offense before an instruction on such an offense is permitted. See State v. Daophin, 533 So. 2d 761 (Fla.1988). Here, although the felony mischief instruction is supported by the facts of the case, the information is silent on the amount of damage, a necessary element of felony mischief. The prejudice to appellant is apparent, as she had no notice that the amount of the damage would be an issue at trial.
The state asserts that the amount of damage is not an essential element of felony criminal mischief, relying on Valdes v. State, 510 So. 2d 631 (Fla. 3d DCA 1987). However, we deem that opinion inapposite as it involved the question of whether the amount of damage is an essential element of second degree misdemeanor mischief, which does not require proof of an amount of damage.
We conclude that the amount of damage is an element of a felony criminal mischief charge. We can discern no reason to create an exception to the principle recognized in Daophin. See also, Clay v. State, 595 So. 2d 1052 (Fla. 4th DCA 1992); Von Deck v. State, 593 So. 2d 1129 (Fla. 5th DCA 1992); J.C.B. v. State, 512 So. 2d 1073 (Fla. 1st DCA 1987).
As to all other issues, we affirm. We remand for modification of the judgment to substitute a conviction for the second degree misdemeanor mischief and for resentencing as to both counts.
HERSEY and DELL, JJ., concur.
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Marrero v. State, 71 So. 3d 881 (Fla. 2011)…ons for criminal mischief in excess of $1000 — a felony of the third degree — an essential element of the crime is the amount of damage in value or cost to the property damaged.”) (citing § 816.13(l)(a), (b)3., Fla. Stat. (2005); Meenaghan v. State, 601 So. 2d 307, 308 (Fla. 4th DCA 1992)) (emphasis supplied). The First, Second, and Third Districts, however, have refrained from declaring the amount of damage to be an essential element of felony criminal mischief and have merely referred to the “severity” of t…
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R.C.R. v. State, 916 So. 2d 49 (Fla. 4th DCA 2005)…d, without supporting documentation, that repairs going into the vehicle were worth close to $2,700.00; $800 to $900 in parts, plus labor supplied by his employees. The amount of damage is an element of felony criminal mischief. Meenaghan v. State, 601 So. 2d 307, 308 (Fla. 4th DCA 1992). This court has recognized that for grand theft, the state must establish the market value of the stolen proper [*50] ty at the time of the theft beyond and to the exclusion of every reasonable doubt. Moore v. State, 183 So.…
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In the Interest of E.W., 616 So. 2d 1194 (Fla. 4th DCA 1993)…lstreau v. State, 326 So. 2d 194 (Fla. 4th DCA 1976), called into doubt by Carter v. State, 380 So. 2d 541 (Fla. 5th DCA 1980); Gordon v. State, 603 So. 2d 512 (Fla. 1st DCA 1992). The prejudice in this case is obvious. See also, Meenaghan v. State, 601 So. 2d 307 (Fla. 4th DCA 1992). The judgment and sentence are reversed and remanded for entry of an amended judgment of petit theft. There is no need to address the other issue raised on appeal. GUNTHER, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jewel May Daophin, 533 So. 2d 761 (Fla. 1988)
- Arnaldo Valdes v. State, 510 So. 2d 631 (Fla. 3d DCA 1987)
- In the Interest of J.C.B. v. State, 512 So. 2d 1073 (Fla. 1st DCA 1987)
- von Deck v. State, 593 So. 2d 1129 (Fla. 5th DCA 1992)
- Clay v. State, 595 So. 2d 1052 (Fla. 4th DCA 1992)