Supreme Court of Florida
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No. SC16-1357
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VERNON STEVENS,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[September 14, 2017]
LEWIS, J.
This case is before the Court for review of the decision of the Second
District Court of Appeal in Stevens v. State, 195 So. 3d 403 (Fla. 2d DCA 2016).
The district court certified that its decision is in direct conflict with the decision of
the Fourth District Court of Appeal in Moore v. State, 932 So. 2d 524 (Fla. 4th
DCA 2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the
following reasons, we hold that the trial court properly denied Stevens’ request for
a second-degree arson instruction because there was no evidence adduced at trial
that entitled him to such an instruction.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner, Vernon Stevens, was charged by indictment with the first-degree
murder of Epitacio Antonio Hernandez-Beltran (Beltran), first-degree arson of a
dwelling, and robbery with a deadly weapon. The State sought the death penalty.
Where relevant, the indictment alleged that Stevens “did unlawfully and willfully,
or while in the commission of a felony, to-wit: robbery, by fire or explosion,
damage or cause to be damaged, a structure, to-wit: a dwelling, . . . or its contents,
contrary to Florida Statute 806.01(1)(a).”
These charges arose from a savage murder in October 2007. Stevens and his
codefendant, Raymond Diaz, viciously beat and repeatedly strangled Beltran inside
his trailer home. They robbed Beltran and left him bound, lying on the floor.
Later, Stevens and Diaz returned and set fire to the trailer with Beltran still inside
in an attempt to conceal their actions.1
As the Second District noted below, the “graphic details of the offense are
not important to the legal issue we address.” Stevens, 195 So. 3d at 405. Rather,
the operative fact is that the events took place inside Beltran’s trailer home, which
Beltran used exclusively as a dwelling with his wife. This fact was undisputed at
trial and on appeal.
1. The evidence did not establish precisely when Beltran died during the
course of events.
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At the preliminary charge conference, Stevens requested an instruction for
second-degree arson as a lesser included offense of first-degree arson. Then, the
following exchange occurred:
[The Court]: I guess my question is specific to the Category I request,
[defense counsel], the request for arson in the second degree. And if
you can tell me the distinction between the first and second and why
the second would apply in this case.
[Defense Counsel]: Well, in all candor, Judge, the distinction is,
one’s a structure and one’s a dwelling. I’ll just stand on that.
At the final charge conference, the trial court denied Stevens’ request for an
instruction on second-degree arson. The court explained its ruling:
[The Court]: The Court, after reviewing the indictment, consideration
of the Category I versus Category II lesser included offense and the
evidence adduced at trial, finds that the defense request for 12.2 shall
not be given, as it is not supported by the evidence.
Pertaining to the arson charge, the trial court instructed the jury only on first-
degree arson.
The jury found Stevens guilty on all counts as charged, but it recommended
a life sentence. The trial court sentenced Stevens to life imprisonment for first-
degree murder, along with concurrent thirty-year sentences for the arson and
robbery convictions.
Stevens appealed his convictions and sentences to the district court. The
Second District affirmed without discussion, but wrote separately to “reject
[Stevens’] contention that he was entitled to a jury instruction on second-degree
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arson of a structure.” Stevens, 195 So. 3d at 405. The Second District held that a
second-degree arson instruction is not required when “the undisputed trial evidence
demonstrates that the structure that is the subject of the arson charge was used
exclusively as a dwelling, thereby excluding it from consideration as a second-
degree arson offense under the plain language of the arson statute.” Id. In doing
so, the Second District certified conflict with the Fourth District in Moore. Id.
This review follows.
ANALYSIS
The issue presented is whether a second-degree arson instruction is proper
when the undisputed evidence demonstrates that the structure burned was
exclusively a dwelling. We analyze the following: (1) the applicability of second-
degree arson as a permissive lesser included offense; (2) the conflict between
Stevens and Moore; and (3) whether denial of the requested instruction was proper.
This matter involves “solely legal determinations based on undisputed facts”;
therefore, our review is de novo. Williams v. State, 957 So. 2d 595, 598 (Fla.
2007).
Second-Degree Arson—A Permissive Lesser Included Offense
Lesser included offenses fall into two categories: (1) necessary, or category
one; and (2) permissive, or category two. Sanders v. State, 944 So. 2d 203, 206
(Fla. 2006); In re Use by Trial Courts of Std. Jury Instrs. in Crim. Cases, 431 So.
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2d 594, 596 (Fla. 1981). If the “two offenses appear to be separate [on the face of
the statutes], but the facts alleged in the accusatory pleadings are such that the
lesser [included] offense cannot help but be perpetrated once the greater offense
has been,” then the lesser included offense is permissive. Sanders, 944 So. 2d at
206 (quoting State v. Weller, 590 So. 2d 923, 925 n.2 (Fla. 1991)) (alterations in
original).
This Court has held that second-degree arson is a permissive lesser included
offense of first-degree arson. Higgins v. State, 565 So. 2d 698 (Fla. 1990); Fla.
Std. Jury Instr. (Crim.) 12.1. Based on the plain language of the statute, first- and
second-degree arson generally cannot be committed simultaneously. See § 806.01,
Fla. Stat. (2007); Stevens, 195 So. 3d at 408. In pertinent part, the statutory
definition of first-degree arson follows:
(1) Any person who willfully and unlawfully, or while in the
commission of any felony, by fire or explosion, damages or causes to
be damaged:
(a) Any dwelling, whether occupied or not, or its contents;
(b) Any structure, or contents thereof, where persons are
normally present, such as: jails, prisons, or detention centers;
hospitals, nursing homes, or other health care facilities; department
stores, office buildings, business establishments, churches, or
educational institutions during normal hours of occupancy; or other
similar structures; or
(c) Any other structure that he or she knew or had reasonable
grounds to believe was occupied by a human being.
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§ 806.01(1), Fla. Stat. Second-degree arson is a catchall offense to punish any
arson not qualifying as first-degree arson:
(2) Any person who willfully and unlawfully, or while in the
commission of any felony, by fire or explosion, damages or causes to
be damaged any structure, whether the property of himself or herself
or another, under any circumstances not referred to in subsection (1),
is guilty of arson in the second degree.
§ 806.01(2), Fla. Stat. (emphasis added). The statute defines “structure” broadly,
ranging from “any building of any kind,” to “any enclosed area with a roof over
it,” to “any vehicle, vessel, watercraft, or aircraft.” § 806.01(3), Fla. Stat.
Therefore, structures covered under section 806.01(1), first-degree arson, fit within
the definition of structures under section 806.01(2), second-degree arson.
However, the statute plainly delineates a distinction between structures under first-
and second-degree arson—the primary difference is human occupancy. See §
806.01, Fla. Stat.; Neilson v. State, 713 So. 2d 1110, 1111-12 (Fla. 2d DCA 1998)
(noting that occupancy is an essential element of first-degree arson); Krantz v.
State, 553 So. 2d 746, 747 (Fla. 5th DCA 1989) (“[T]he difference between first
degree arson and second degree arson concerns primarily human occupancy.”).
Because the offenses appear separate on the face of the statute and—under
limited circumstances—second-degree arson may be automatically perpetrated
once first-degree arson has been perpetuated, we reaffirm that second-degree arson
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is a permissive lesser included offense of first-degree arson. See Sanders, 944 So.
2d at 206; Higgins, 565 So. 2d at 700.
Resolving the Conflict
Now we turn to the conflict between Stevens and Moore. Discussion of the
conflict necessarily begins with our decision in Higgins, in which we held that
second-degree arson is not a necessary lesser included offense of first-degree
arson. 565 So. 2d at 699-700. In Higgins, a prisoner was charged with first-degree
arson based on the burning of a mattress in his cell, which did not damage the
prison structure in any way. Id. at 699. This Court quoted reasoning from the
lower court to produce our holding on these unique facts. Id. at 699-700. That
language stated, in part:
Section 806.01(1) first degree arson, does not include all of the
elements of § 806.01(2) second degree arson, and the proof of first
degree arson does not and cannot constitute proof of second degree
arson. Proof of damage to any structure described in first degree
arson would prevent the proof of second degree arson because second
degree arson covers damage only to structures not described in first
degree arson.
Id. at 699 (quoting Higgins v. State, 553 So. 2d 177, 179 (Fla. 1st DCA 1989))
(emphasis added). However, we clarified that second-degree arson could be,
“under certain circumstances and evidence, a proper permissive lesser included
offense of first-degree arson.” Id. at 700.
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Although our holding in Higgins was clear, a dictum statement in the
opinion suggested that a second-degree arson instruction would have been proper if
“Higgins set fire to a building normally occupied by a large number of people.” Id.
There, no evidence suggested that Higgins burned a structure, which “is a
necessary ingredient of second-degree arson,” so this Court reasoned that the trial
court did not err in refusing to give the second-degree instruction. Id. However,
Higgins clearly committed only first-degree arson under section 806.01(1)(b),
regardless of whether the fire he ignited singed the prison structure. Therefore,
acceptance of this dictum at face value directly contradicts the express holding in
Higgins because it would essentially convert second-degree arson into a necessary
lesser included offense of first-degree arson in all cases—which Higgins itself
plainly rejected. Id. That dictum did not overrule our express holding; rather, it
illustrated our correct interpretation that, under limited circumstances, a second-
degree arson instruction could be proper on a first-degree charge, but that those
facts did not exist in Higgins. Again, we reiterate that “this Court does not
intentionally overrule itself sub silentio. Where a court encounters an express
holding from this Court on a specific issue and a subsequent contrary dicta
statement on the same specific issue, the court is to apply our express holding.”
Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002). Consequently, we abrogate
Higgins to the extent that it implies a second-degree arson instruction is proper as a
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lesser included offense of first-degree arson in all cases in which a structure is
burned.
Moving to the conflict case, in Moore, the defendant was convicted of first-
degree arson of a dwelling after setting fire to his own mobile home and then
sitting in a lawn chair, with a six-pack of beer, watching it burn.2 932 So. 2d at
526. The trial court denied a requested instruction on second-degree arson. Id.
Despite the uncontroverted evidence that the trailer was Moore’s dwelling and was
being utilized as his living quarters, the Fourth District reversed. Id. at 528. It
reasoned that, although “a structure is not always a dwelling, a dwelling is always
a structure within the broad definition” of section 806.01(3). Id. Therefore, Moore
concluded that the indictment and evidence supporting first-degree arson
necessarily supported a charge on second-degree arson as well. Id.
Below, in Stevens, the Second District came to the opposite conclusion. 195
So. 3d at 405. Stevens focused on the plain language of section 806.01 to conclude
that “acts constituting the offense of first-degree arson are expressly excluded from
the scope of the offense of second-degree arson”; thus, “first-degree arson cannot
simultaneously constitute second-degree arson.” Id. at 406. Although Stevens
2. The jury reached an impasse and submitted a guilty verdict with a request
that the trial court grant leniency because nobody was injured by the fire. Moore,
932 So. 2d at 526.
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agreed that a dwelling is a structure under section 806.01(3), the Second District
rejected Moore’s conclusion that this fact controls whether a second-degree arson
instruction was proper when it is undisputed that the structure burned is a dwelling.
Id. at 408. Instead, it held that the charging document and evidence adduced at
trial are determinative. Id. Therefore, in light of the “total absence of evidence
that the trailer was anything other than a dwelling, combined with the fact that
section 806.01(2) excludes arson of any structure that is covered by the first-degree
arson statute,” Stevens naturally concluded that the trial court properly rejected the
requested instruction. Id.
Based on the foregoing, we conclude that Stevens correctly interpreted the
statute. It is improper to instruct a jury to consider second-degree arson when the
evidence totally fails to demonstrate its statutory elements—particularly when the
structure at issue is, without dispute, totally and solely within the province of first-
degree arson. See id. Under the plain language of the arson statute, first-degree
arson is the only appropriate charge when it is undisputed that a dwelling was
burned.3 See § 806.01, Fla. Stat.; Stevens, 195 So. 3d at 408. As this Court noted
in Higgins, the Florida Rules of Criminal Procedure require some evidence of a
3. This does not foreclose the availability of criminal mischief as a
permissive lesser included offense of first-degree arson. See § 806.13, Fla. Stat.;
Fla. Std. Jury Instr. (Crim.) 12.1.
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lesser offense or degree for the trial court to give an instruction on the lesser
included offense. 565 So. 2d at 700 (citing Fla. R. Crim. P. 3.510 (“The judge
shall not instruct on any lesser included offense as to which there is no evidence.”);
Fla. R. Crim. P. 3.490 (“The judge shall not instruct on any degree as to which
there is no evidence.”)). Therefore, the court in Stevens was correct in holding that
it is improper to give a second-degree arson instruction when it is undisputed that
the structure burned is a dwelling.
Moore presented a “crabbed reading” of section 806.01(2) that read the
definitional limitation of second-degree arson out of the statute. Stevens, 195 So.
3d at 409. By holding that a dwelling is necessarily a structure within the meaning
of section 806.01(2), Moore ignored the plain language of the statute that removed
certain structures—such as dwellings—from that provision’s protection.
§ 806.01(1)-(2), Fla. Stat.; see Moore, 932 So. 2d at 528. Indeed, the broad
statutory definition of structure encompasses dwellings, see §806.01(3), Fla. Stat.;
thus, Moore was correct that “a structure is not always a dwelling, [but] a dwelling
is always a structure.” 932 So. 2d at 528. However, this fact is not dispositive
because it fails to consider that section 806.01(2) defines second-degree arson as
beyond and outside the scope of section 806.01(1). Although a dwelling is a
structure, it is flatly not a type of structure protected by the second-degree arson
statute. § 806.01(2), Fla. Stat. “It is an elementary principle of statutory
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construction that significance and effect must be given to every word [and] phrase,
. . . and words in a statute should not be construed as mere surplusage.” Hechtman
v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003). Omitting section
806.01(2)’s express limitation from the statute skewed the analysis and “effectively
[made] second-degree arson a necessary lesser included offense of first-degree
arson,” except for limited factual scenarios such as Higgins. See Stevens, 195 So.
3d at 409.
Perhaps Moore’s extraordinary facts impacted the decision. There, an
intoxicated man burned his own mobile home, and the jury only reached its guilty
verdict after a compromise that they would plead for the judge to grant leniency.
932 So. 2d at 526. As the old adage goes, sometimes “hard cases make bad law.”
In re Woods’ Estate, 183 So. 10, 14 (Fla. 1938). With such uncommon facts,
Moore may have been one of those hard cases, which could explain the decision’s
contradictory positions. Compare Moore, 932 So. 2d at 528 (“Here, the evidence
established, and no one disputed, the mobile home was used as a dwelling.”), with
id. (“[B]oth the charging document and the evidence supported a finding that the
mobile home was a non-residential, unoccupied structure.”). Regardless of what
caused the misinterpretation of section 806.01, we must clarify the statute going
forward. For all of these reasons, we approve of the decision below in Stevens and
disapprove the decision in Moore.
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This Case
Finally, we address the resolution of the case sub judice. Instructions on
permissive lesser included offenses are required where (1) the indictment alleged
all of the statutory elements of the lesser offense and (2) some evidence adduced at
trial established each of those elements. Williams, 957 So. 2d at 599; Khianthalat
v. State, 974 So. 2d 359, 361 (Fla. 2008). If those conditions are satisfied, then
failure to give the requested instruction constitutes reversible error. See Amado v.
State, 585 So. 2d 282, 282-83 (Fla. 1991). However, to be entitled to instructions
on category two offenses, both the accusatory pleadings and some evidence must
support the commission of the elements and terms of the permissive lesser
included offense. State v. Daophin, 533 So. 2d 761, 762 (Fla. 1988).
We conclude that the trial court here properly denied Stevens’ request for a
second-degree arson instruction because no evidence adduced at trial supported
second-degree arson. See Khianthalat, 974 So. 2d at 363 (holding that a defendant
was not entitled to a lesser included offense instruction when the evidence did not
support it).
At trial, Stevens did not dispute that the trailer was Beltran’s dwelling.
Because it was undisputed that the structure was a dwelling, the conduct at issue
only could have been first-degree arson under section 806.01(1)(a), which
specifically protects dwellings. Again, section 806.01(2) only applies to structures
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not referred to in section 806.01(1); therefore, Stevens’ failure to place the nature
of Beltran’s trailer at issue or present evidence on that issue amounted to a legal
concession that second-degree arson was inapplicable. “An instruction on a
permissive lesser included offense should be precluded only where ‘there is a total
lack of evidence of the lesser offense.’ ” Amado, 585 So. 2d at 282-83 (citing In re
Std. Jury Instrs., 431 So. 2d at 597). Here, neither Stevens nor the State submitted
any evidence that the trailer was other than a dwelling. Therefore, there was a total
lack of evidence that Stevens committed second-degree arson, and he was not
entitled to a second-degree arson instruction.
To be sure, under certain facts, a defendant charged with first-degree arson
could be entitled to an instruction on second-degree arson. Higgins, 565 So. 2d at
700; see generally P.P.M. v. State, 447 So. 2d 445 (Fla. 2d DCA 1984). For
instance, a defendant charged under section 806.01(1)(c) could dispute that he or
she “knew or had reasonable grounds to believe [a structure] was occupied by a
human being.” See § 806.01(1)(c), Fla. Stat. Hypothetically, in such a case, the
defendant could be entitled to an instruction on second-degree arson if sufficient
evidence was produced to support the assertion that the defendant did not know
that a structure was occupied. In the past, courts have held that insufficient
evidence on knowledge of occupancy can be the basis for reducing a conviction of
first-degree arson under section 806.01(1)(c) to second-degree arson. See Neilson,
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713 So. 2d at 1111-12. It is conceivable that circumstances could exist where the
evidence presented raises doubt as to the nature of a structure, which would
amount to a dispute between first- and second-degree arson. Hypothetically, these
different factual scenarios could warrant a second-degree arson instruction,
depending upon the evidence adduced at trial. However, this case did not present
the trial court with any evidence to support a second-degree arson instruction. See
Stevens, 195 So. 3d at 408. Given that the structure burned was undisputedly a
dwelling, in conjunction with the statutory scheme, Stevens’ instructions were
correctly limited to either first-degree arson or no arson at all.
CONCLUSION
Accordingly, we approve the decision below in Stevens, disapprove the
Fourth District’s decision in Moore, and hold that the trial court properly denied
Stevens’ requested instruction.
It is so ordered.
LABARGA, C.J., and QUINCE, and LAWSON, JJ., concur.
PARIENTE, CANADY, and POLSTON, JJ., concur in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions
Second District - Case No. 2D13-2148
(Hendry County)
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Stephen M. Grogoza, Special Assistant Public Defender, Bartow, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and John Klawikofsky,
Chief Assistant Attorney General, and Donna S. Koch, Assistant Attorney General,
Tampa, Florida,
for Respondent
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