Third District Court of Appeal
State of Florida
Opinion filed May 30, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2381
Lower Tribunal No. 16-1797
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J.A., a juvenile,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Orlando A.
Prescott, Judge.
Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant
Attorney General, for appellee.
Before LAGOA, EMAS, and LUCK, JJ.
LAGOA, J.
J.A., a juvenile, appeals his withhold of adjudication of delinquency. J.A.
argues that the State failed to prove the value of the truck’s damaged windshield,
and therefore, this Court should reduce the finding of delinquency under Count 2
of the petition from first-degree criminal mischief to second-degree criminal
mischief. We find J.A.’s arguments without merit and affirm.1
I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 5th, 2016, Edy Iglesias (“Iglesias”) was driving home
in a truck owned by his employer when J.A. and another juvenile threw rocks at
the truck, which damaged the truck’s windshield in two places. The following day,
Iglesias called a company to repair the truck’s windshield.
The State charged J.A. with two counts: throwing a deadly missile (Count 1)
and first-degree misdemeanor criminal mischief (Count 2). At trial, Iglesias
testified that a company he contacted repaired the windshield and that he paid the
total cost of repair of $272.72, which included the cost of the windshield and labor
expended. Defense counsel objected to Iglesias’s testimony as “hearsay and
inferential hearsay.”
After the State rested, defense counsel moved for a judgment of dismissal
and argued that the State failed to prove the fair market value of the windshield and
its repair. The trial court denied the motion for judgment of dismissal and found
that the State proved damages and the value of the damaged property. The trial
1J.A. does not appeal the trial court’s finding regarding Count 1 of the petition.
Accordingly, the trial court’s order finding J.A. delinquent on Count 1 of the
petition is affirmed.
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court entered an order withholding adjudication of delinquency as well as an order
of restitution for $272.72, and placed J.A. on probation. This timely appeal
followed.
II. ANALYSIS
On appeal, J.A. argues that the State did not present sufficient evidence to
prove the value of the damage to the property. We disagree. In a criminal
mischief case, the amount of damage is an essential element of the crime of felony
criminal mischief and the crime of first-degree misdemeanor criminal mischief.
See Marrero v. State,
71 So. 3d 881, 887 (Fla. 2011); B.J.M. v. State,
185 So. 3d
692, 693 (Fla. 5th DCA 2016). For first-degree misdemeanor criminal mischief,
the State must prove that the defendant’s criminal mischief resulted in damage to
property greater than $200 but less than $1000. See § 806.13(1)(b)2., Fla. Stat.
(2016). “Absent proof of the amount of damage, an act of criminal mischief, as
defined by the criminal mischief statute, is a misdemeanor of the second degree.”
Marrero,
71 So. 3d at 887 (emphasis in original). Additionally, for an order of
restitution, evidence demonstrating the amount of loss “must be established
through more than mere speculation; it must be based on competent evidence.”
Glaubius v. State,
688 So. 2d 913, 916 (Fla. 1997).
At trial, the State presented Iglesias’s own testimony regarding the amount
he paid for the repair. The State did not introduce Iglesias’s actual repair bill
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showing the cost of replacing the windshield, any estimates that Iglesias may have
received for the repair, or any other documentary evidence (e.g., a cancelled check
or a credit card bill) establishing the cost of the repair.
In a similar case, C.H. v. State,
199 So. 3d 447 (Fla. 3d DCA 2016), this
Court found that the victim’s testimony that he paid $500 as his insurance
deductible to repair his car sufficiently established that amount of damage and
therefore supported an adjudication for first-degree misdemeanor criminal
mischief.
Id. at 448.2 As in C.H., the owner’s testimony here was not inadmissible
hearsay as it did not involve an out-of-court statement, but rather an act in which
the owner was a participant. See also L.D.G. v. State,
960 So. 2d 767, 767-68 (Fla.
4th DCA 2007) (finding that the victim’s testimony that she paid $1250—
consisting of her $500 deductible and insurer’s payment of $750—to repair car
door was not inadmissible hearsay and was sufficient to establish damage in excess
of $1000 for purposes of felony criminal mischief).3 Based on our prior conclusion
in C.H. and our sister court’s conclusion in L.D.G., we find that the State presented
2 This Court concluded in C.H. that the $1000 threshold for felony criminal
mischief had not been met because the State did not introduce any evidence
regarding amounts paid in addition to the victim’s deductible.
3Because the State proved the amount of damage based on what was actually paid,
and not based on estimates to repair, we find the conclusions of B.J.M. and B.L.N.
v. State,
722 So. 2d 860 (Fla. 1st DCA 1998), inapplicable.
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competent, substantial evidence of the actual cost of repair to the damaged
windshield.
J.A. argues, however, that the State was also required to prove the fair
market value of the truck, the windshield, and the repair. J.A. bases his argument
on R.C.R. v. State,
916 So. 2d 49 (Fla. 4th DCA 2005). In R.C.R., the record
established that the victim had purchased a vehicle for $500 as “junked,” without
an engine or wheels, placed on blocks, and with the idea of restoring the vehicle.
The evidence in R.C.R. also established that the vehicle’s prior owner had not
expected to get anything for the truck. At trial, the victim “estimated, without
supporting documentation, that repairs [as a result of the criminal mischief] were
close to $2,700.00 . . . .”
Id. at 49. Relying on case law relating to the crime of
theft, the court in R.C.R. concluded that the State had to prove damages by the
value of what was lost; thus, where the cost of repair exceeded the value of the
vehicle, the value of the vehicle (in that case, $500) would set the damages for
purposes of determining whether the crime qualified as felony, first-degree
misdemeanor, or second-degree misdemeanor criminal mischief.
Id.
We find R.C.R. inapplicable for a number of reasons. First, while it is true
that the definition of “value” in Florida’s theft statutes includes the concept of
market value, the Florida Supreme Court in Marrero,
71 So. 3d at 887-890,
disapproved of importing the definition of “value” from Florida’s theft statute into
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the criminal mischief statute. Indeed, the harm resulting from a theft (i.e.,
dispossession) is different in kind from the harm resulting from criminal mischief
(i.e., damage or defacement).
Second, the Fourth District Court of Appeal subsequently refused to apply
its own holding in R.C.R. in the broad manner urged on us by J.A. In L.D.G. v.
State,
960 So. 2d 767 (Fla. 4th DCA 2007), the owner of a vehicle testified
regarding the actual cost to repair the car door damaged by the juvenile repeatedly
kicking and beating the door of the vehicle.
Id. at 767. The Fourth District
rejected the juvenile’s argument that the owner’s testimony was insufficient under
R.C.R. Instead, the Fourth District concluded that its “decision in R.C.R. stands
for the proposition that repair costs cannot be used to establish the amount of the
damage element in a charge of criminal mischief to the extent that the repair costs
exceed the fair market value of the damaged property.”
Id. at 768. Contrasting the
junked car on blocks in R.C.R. with the vehicle used by the victim as her personal
van in L.D.G., the Fourth District found R.C.R. to be “simply inapposite to this
case.”
Id. For the same reason, even if R.C.R.’s use of fair market value had
continuing validity after Marrero, we find it inapplicable to the facts before us
here.4
4 We note that if R.C.R. retains vitality post-Marrero, the argument that the cost of
repair cannot be the proper measure of damage when it exceeds the fair market
value of the damaged property would appear to be a defense to be asserted once the
State has established a prima facie case of criminal mischief.
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Accordingly, for the reasons discussed, we affirm the trial court’s order
withholding adjudication of guilt.
Affirmed.
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