T.B.S., APPELLANT
v.
STATE OF FLORIDA, APPELLEE
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T.B.S. was adjudicated delinquent for felony criminal mischief after smashing five windows of a car. The court reversed because the State failed to prove that the damage exceeded the $1,000 threshold required for a felony conviction, as the only evidence was inadmissible hearsay testimony regarding a repair estimate.
The trial court erred in admitting hearsay testimony regarding the repair estimate and in finding that the $1,000 threshold was met. While a trial court may infer a damage threshold from self-evident facts and life experience, the trial court here made no such articulated finding. The evidence of five smashed windows was sufficient only to establish the $200 threshold for first-degree misdemeanor criminal mischief.
[1] A conviction or adjudication of felony criminal mischief requires proof that the defendant caused at least $1000 worth of damage.
[2] A victim's testimony regarding the monetary value of damage, based solely on estimates received from repair shops, constitutes inadmissible hearsay when objected to.
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Join FLexlaw to unlock all legal intelligence“A conviction or adjudication of felony criminal mischief must be supported by proof that the defendant caused at least $1000 worth of damage.”
Establishes the statutory requirement that damage amount is essential to felony classification under § 806.13(1)(b)(3)
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Join FLexlaw to unlock all legal intelligenceT.B.S. smashed five windows of the victim's car, including the windshield and rear window. The State's only evidence of the monetary value of the dama…
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WHATLEY, Judge.
T.B.S. appeals the order adjudicating him delinquent for committing felony criminal mischief by smashing the windows of the victim’s car. He argues that the State did not prove that the monetary value of the damage was $1000 or greater. We agree and reverse.
While the monetary value of damage caused by an act of criminal mischief is not an element of the offense, it affects the severity of the crime. A conviction or adjudication of felony criminal mischief must be supported by proof that the defendant caused at least $1000 worth of damage. § 806.13(l)(b)(3), Fla. Stat. (2005).
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.
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.
However, 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_” A.D. v. State, 866 So. 2d 752, 753 (Fla. 2d DCA 2004) (citing Clark v. State, 746 So. 2d 1237 (Fla. 1st DCA 1999)). Accord S.P. v. State, 884 So. 2d 136, 138 (Fla. 2d DCA 2004) (“We recognize that in some circumstances, the fact-finder can infer from life experience and from the self-evident nature of the repairs that a 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 ear 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. § 806.13(l)(b)(2), Fla. Stat. (2005). 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.
Reversed and remanded with instructions.
SILBERMAN, J., and DANAHY, PAUL W., Senior Judge, Concur.
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Marrero v. State, 71 So. 3d 881 (Fla. 2011)…view of the decision of the Third District Court of Appeal in Marrero v. State, 22 So. 3d 822 (Fla. 3d DCA 2009), asserting that it expressly and directly conflicts with decisions of the First and Second District Courts of Appeal in T.B.S. v. State, 935 So. 2d 98 (Fla. 2d DCA 2006), S.P. v. State, 884 So. 2d 136 (Fla. 2d DCA 2004), A.D. v. State, 866 So. 2d 752 (Fla. 2d DCA 2004), Wingfield v. State, 751 So. 2d 134 (Fla. 2d DCA 2000), remanded, 799 So. 2d 1022 (Fla.2001), Clark v. State, 746 So. 2d 1237 (Fla…1 / 4
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Marrero v. State, 22 So. 3d 822 (Fla. 3d DCA 2009)…d. § 806.13(l)(b)2., 3. It has been said that “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....’” T.B.S. v. State, 935 So. 2d 98, 99 (Fla. 2d DCA 2006) (quoting A.D. v. State, 866 So. 2d 752, 753 (Fla. 2d DCA 2004)); S.P. v. State, 884 So. 2d 136, 138 (Fla. 2d DCA 2004); Clark v. State, 746 So. 2d 1237, 1241 (Fla. 1st DCA 1999). In this case the jury had a videotape of the c…
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J.J. v. State, 970 So. 2d 388 (Fla. 3d DCA 2007)…PER CURIAM. Affirmed. Garrett v. Morris Kirschman & Co., 336 So. 2d 566, 569 (Fla.1976) (stating that a writing used to jog a witness’s memory may be admissible on some independent ground); T.B.S. v. State, 935 So. 2d 98, 99 (Fla. 2d DCA 2006) (stating the fact-finder can use life experience to find that the statutory damage threshold has been met for self-evident repairs).…
Authorities Cited
- Clark v. State, 746 So. 2d 1237 (Fla. 1st DCA 1999)
- R.A.P. v. State, 575 So. 2d 277 (Fla. 1st DCA 1991)
- A.D. v. State, 866 So. 2d 752 (Fla. 2d DCA 2004)
- S.P. v. State, 884 So. 2d 136 (Fla. 2d DCA 2004)