R.A.P. v. StateR.A.P. v. State
- Reporters:
- ,
- Before:
- Ervin
Appellant, R.A.P., a child, appeals from an order finding that he committed delinquent acts by viоlating Sections 784.021 and 806.13(l)(b)3, Florida Statutes (1989), which constitute the third degree felony offenses of аggravated assault and criminal mischief, and committing him to the custody of the Department of Health and Rehabilitative Services. Appellant does not challenge that pоrtion of the order regarding the aggravated assault offense, however, he contends that there was insufficient admissible evidence to support a finding that he caused over $1,000 in damage by criminal mischief. We agree that the evidence does not support the adjudication and therefore reverse and remand for entry of an order finding appellant delinquent for having committed the lesser offense of first degree misdemeanor criminal mischief.
Section 806.13, Florida Statutes (1989), defines criminal mischief as follows:
(l)(a) A person сommits the offense of criminal mischief if he willfully and maliciously injures or damages by any means аny real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.
(b)l. If the damage tо such property is $200 or less, it is a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
2. If the damage to such property is greater than $200 but less than $1,000, it is a misdemeаnor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
*279 3. If the damage is $1,000 or greater, or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service whiсh costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(Footnotes omitted).
In the instant case, the record discloses that several boys, including appellant, damaged Howard Sweat’s automobile by hitting it with sticks and axe handles аnd by throwing a trash can at it. Sweat testified, based upon estimates he received from аutomobile body repair shops, that the value of the damage was approximately $1,200. Sweat’s testimony constituted inadmissible hearsay, which was properly objected tо and therefore cannot be used to sustain the adjudication. See, e.g., National Communications Indus., Inc. v. Tarlini,
The state, however, presented other evidence which supports an adjudication of the lesser offense of criminal mischief by causing damage of bеtween $200 to $1,000. Brian Morrow, a passenger in Sweat’s car at the time of the incident, testified that the value of the damage to the car, exclusive of glass repair, was betwеen $600 and $700. He based this opinion upon his experience doing fiberglass and “bondo” work during a one-year period at Westside Skills Center. He further testified, based upon his brother’s advice, that the value of the glass repair necessary for Sweat’s ear was apрroximately $600. Morrow’s testimony regarding the glass repair estimate, like Sweat’s damage testimony, constituted inadmissible hearsay and therefore cannot be used to sustain the adjudication. Id. Morrow’s testimony regarding the value of the body repair was, however, admissible аs either lay opinion based on his knowledge of the facts he perceived, or аs expert opinion based upon his experience in body repair work. See C. Ehrhardt, Florida Evidence § 701.1, at pp. 388-89 (2d ed. 1984); § 90.702, Fla.Stat. (1989).
Because the record contains admissible evidence showing that the vаlue of the damage caused by appellant’s criminal mischief was only between $600 аnd $700, appellant’s adjudication for third degree felony criminal mischief, which requires a shоwing of $1,000 or more worth of damage,
The order is REVERSED and the matter REMANDED to the trial court with directions to enter a delinquency adjudication based upon first degree misdemeanor criminal mischief. Appellant’s commitment therefor shall be limited in accordance with Sections 39.11(4) and 775.082(4)(a), Florida Statutes (1989).
Notes
. § 806.13(l)(b)3, Fla.Stat. (1989).