NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

VERNON STEVENS, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D13-2148 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed June 24, 2016. 

Appeal from the Circuit Court for Hendry 

County; Christine Greider, Judge. 

Howard L. Dimmig, II, Public Defender, 

and Stephen M. Grogoza, Special 

Assistant Public Defender, Bartow, for 

Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Donna S. Koch, 

Assistant Attorney General, Tampa, for 

Appellee. 

SALARIO, Judge. 

Vernon Stevens appeals his convictions and sentences for first-degree 

murder, first-degree arson of a dwelling, and robbery with a deadly weapon. Finding no 

error, we affirm his convictions and sentences in all respects. We write solely to explain 

why we reject his contention that he was entitled to a jury instruction on second-degree 
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arson of a structure under section 806.01(2), Florida Statutes (2007). We hold that an 

instruction on second-degree arson of a structure as a permissive, lesser included 

offense of first-degree arson of a dwelling is not required where, as here, 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. In so 

doing, we certify conflict with Moore v. State, 932 So. 2d 524 (Fla. 4th DCA 2006). 

The charges against Mr. Stevens arose from the savage murder of Tony 

Beltran by Mr. Stevens and Raymond Diaz. The graphic details of the offense are not 

important to the legal issue we address. What is important is that all of the events 

occurred at a trailer home in which Mr. Beltran lived with his wife and that, as far as the 

trial record is concerned, was used exclusively as the couple's dwelling. After beating 

and strangling Mr. Beltran to the point of death or unconsciousness—the evidence does 

not establish precisely when he died—Mr. Stevens and Mr. Diaz left the home and later 

returned with plans to burn it. Mr. Stevens provided Mr. Diaz with a can of gasoline, 

and Mr. Diaz lit the trailer on fire. Mr. Beltran was still inside. 

The information under which Mr. Stevens was charged alleged that during 

the commission of the robbery of Mr. Beltran, Mr. Stevens, "by fire or explosion," 

damaged "a structure, to wit: a dwelling . . . or its contents," thereby committing firstdegree arson of a dwelling under section 806.01(1)(a). Mr. Stevens did not dispute that 

the trailer home was a dwelling within the meaning of the statute; in fact, he conceded 

that it was the Beltrans' home. At trial, however, he requested that the jury be instructed 

on second-degree arson of a structure under section 806.01(2). His reason was that a 

dwelling under section 806.01(1)(a) is also a structure under sections 806.01(2) and 
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that the jury should have the opportunity to consider both the charged and the lesser 

included arson offenses. The trial court denied the request, finding that the evidence 

did not support an instruction on second-degree arson. We agree. 

Lesser included offenses fall into two categories—necessary and

permissive. Williams v. State, 957 So. 2d 595, 598 (Fla. 2007) (citing Sanders v. State, 

944 So. 2d 203, 206 (Fla. 2006)). If the statutory elements of the lesser included 

offense are always subsumed by those of the charged offense, the lesser offense is 

deemed necessary. Id. A lesser offense is permissive, however, where "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." Sanders, 944 So. 2d at 206 

(alterations in original); see also Coicou v. State, 39 So. 3d 237, 240 (Fla. 2010). 

A trial court must instruct the jury on a necessary lesser included offense 

upon request by the defendant regardless of whether the evidence supports the 

instruction. Wong v. State, 184 So. 3d 1122, 1124 (Fla. 2d DCA 2015), review granted, 

SC15-2192, 2016 WL 934487 (Fla. Mar. 9, 2016). In contrast, a trial court is required to 

instruct the jury on a permissive lesser included offense only where (1) the charging 

document alleges all of the statutory elements of the lesser offense and (2) some 

evidence presented at trial establishes each of those elements. Khianthalat v. State, 

974 So. 2d 359, 361 (Fla. 2008) (citing Jones v. State, 666 So. 2d 960, 964 (Fla. 3d 

DCA 1996)); see also Fla. R. Crim. P. 3.510. "[A]n instruction on a permissive lesser 

included offense is appropriate only if the allegations of the greater offense contain all 

the elements of the lesser offense and the evidence at trial would support a verdict on 
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the lesser offense." Khianthalat, 974 So. 2d at 361 (alteration in original) (quoting 

Williams, 957 So. 2d at 599). 

 Determining whether a jury instruction on second-degree arson was 

required in this case thus requires understanding the relationship between first- and 

second-degree arson under section 806.01. The difference between the two offenses 

primarily relates to the issue of human occupancy. Krantz v. State, 553 So. 2d 746, 747 

(Fla. 5th DCA 1989) ("As can be seen, the difference between first degree arson and 

second degree arson concerns primarily human occupancy."). First-degree arson 

involves the burning of a building, and sometimes the contents of a building, that is or is 

likely to be occupied. Under section 806.01(1), it is committed when "[a]ny person . . . 

willfully and unlawfully, or while in the commission of any felony, by fire or explosion, 

damages or causes to be damaged" (a) "[a]ny dwelling, whether occupied or not, or its 

contents," (b) "[a]ny structure, or contents thereof, where persons are normally present," 

or (c) "[a]ny other structure that he or she knew or had reasonable grounds to believe 

was occupied." Second-degree arson under section 806.01(2) involves the burning of 

other structures that are not expressly listed in the first-degree arson statute: it hinges 

on whether the fire or explosion "damage[d] or cause[d] to be damaged any structure." 

The term "structure" is defined to include, among other things, "any building of any kind" 

and "any . . . portable building." § 806.01(3). The statutory definition of the term 

"structure" applies to both first- and second-degree arson. 

 Consistent with the arson statute's focus on treating the burning of 

buildings that are or are likely to be occupied more seriously than the burning of 

unoccupied ones, section 806.01(2) also provides that second-degree arson can be 

committed only "under any circumstances not referred to in subsection (1)"—i.e., only 
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under circumstances that do not constitute first-degree arson. Under the statute, then, 

acts constituting the offense of first-degree arson are expressly excluded from the 

scope of the offense of second-degree arson. By statutory design, the circumstances 

constituting first-degree arson cannot simultaneously constitute second-degree arson. 

 One implication of this statutory separation of the two degrees of arson is 

that second-degree arson cannot be a necessary lesser included offense of first-degree 

arson. The supreme court held as much in Higgins v. State, 565 So. 2d 698, 700 (Fla. 

1990). There, a prison inmate was convicted of first-degree arson under section 

806.01(1)(b), which applies to "a structure or contents thereof where persons are 

normally present," where there was evidence that the inmate burned his mattress but 

not the prison building itself. Id. at 699. Affirming the conviction, the Fourth District held 

that he was not entitled to a second-degree arson instruction and certified a question 

regarding whether second-degree arson is a necessary lesser included of first-degree 

arson. Id. at 698. 

 The supreme court answered that question in the negative and approved 

the Fourth District's affirmance of the conviction. Id. at 698-99. Explaining that "the 

district court reached the correct conclusion," the supreme court quoted at length from 

the Fourth District's opinion in the case, including the following passage: 

Section 806.01 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. 

 
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Id. at 699-700 (emphasis added) (quoting Higgins v. State, 553 So. 2d 177, 178-79 (Fla. 

4th DCA 1989)). This confirms what the statute says: First- and second-degree arson 

are wholly separate, and one cannot be committed when the other has been. 

 The court did recognize, however, that "under certain circumstances and 

evidence" second-degree arson is a permissive lesser included offense of first-degree 

arson. Id. at 700. Those "circumstances and evidence" were not present in Higgins, 

however, because the evidence established only that Higgins burned a mattress in his 

prison cell, not the prison itself. Id. Because second-degree arson requires the element 

of burning an actual structure (a mattress does not count) while first-degree arson can 

also occur upon the burning of the contents of a structure that is normally occupied (a 

mattress does count), the evidence of first-degree arson in Higgins, involving only 

allegations of a burned mattress, did not support a permissive lesser included jury 

instruction on second-degree arson. Id. Put another way, the necessary seconddegree element of a burned structure was not present in the evidence presented in 

Higgins so as to support an instruction on that offense. See Khianthalat, 974 So. 2d at 

361. 

 Higgins did not specify the "circumstances and evidence" under which a 

trial court would be required to instruct a jury on second-degree arson as a lesser 

included offense of first-degree arson. In dictum, the opinion suggested that if the 

evidence had shown that the prison cell itself was set on fire instead of just the 

mattress, a requested permissive lesser included instruction for second-degree arson of 

a structure should have been given under the facts of the case. See id. at 700. That 

dictum does not, however, state or logically compel the conclusion that every time a 

structure is burned, a second-degree arson instruction should be given if requested. If it 
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did, the Higgins court's recognition that "first degree arson does not and cannot 

constitute proof of second degree arson" would make no sense. See 565 So. 2d at 699 

(quoting Higgins, 553 So. 2d at 178-79). Except for the Fourth District's decision in 

Moore, however, we have been unable to locate any decision that gives content to 

Higgins' acknowledgement that there will be cases in which an instruction on seconddegree arson should be given upon request in a first-degree arson case. 

 In Moore, the defendant set the trailer home in which he resided with his 

mother on fire and watched it burn. 932 So. 2d at 526. The defendant was charged 

with first-degree arson, and at trial he requested an instruction on second-degree arson, 

which the trial court denied. Id. Although the evidence showed that the trailer home 

was only a dwelling and not any other type of structure, the Fourth District reversed, 

holding that a dwelling within the meaning of the first-degree arson statute is always a 

structure within the meaning of the second-degree arson statute. Id. at 528 ("While a 

structure is not always a dwelling, a dwelling is always a structure within the broad 

definition of the term 'structure' found in the arson statute . . . ."). As such, the court 

concluded that instructions on both first- and second-degree arson should be given 

upon request even where there is no dispute that the structure involved was solely a 

dwelling within the meaning of the first-degree arson statute. Id. 

 We agree with Moore that the definition of structure in section 806.01(3) 

includes both dwellings covered by the first-degree arson statute and various other 

structures covered by the second-degree arson statute. That definitional fact does not 

suggest anything, however, about section 806.01(2)'s separate and explicit requirement 

that the circumstances constituting second-degree arson cannot simultaneously be 

circumstances constituting first-degree arson. That requirement logically means that 
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second-degree arson cannot occur when there is no dispute that a structure covered by 

the first-degree arson statute has been burned. Recognizing that a dwelling is a type of 

structure says nothing about whether and under what circumstances a second-degree 

arson instruction must be given in a case involving the burning of a dwelling. In order to 

give effect to all the required elements of section 806.01(2), we hold that such an 

instruction need not be given when the charging documents and the evidence at trial fail 

to include all of the second-degree arson elements—including the element that the 

structure involved not be a dwelling covered by the first-degree arson statute. 

 That conclusion flows necessarily both from the statutory separation of 

first- and second-degree arson and from the settled principle that an instruction on a 

permissive lesser included offense need be given only when there is evidence at trial to 

support each of its elements. The second-degree arson statute states and Higgins 

explains that second-degree arson is committed only "under circumstances not referred 

to in" the first-degree arson statute. Applying that principle to the facts of this case, the 

evidence here proves first-degree arson and only first-degree arson because there was 

no evidence from which the jury could conclude that the structure burned was anything 

but a dwelling. Accepting that the Beltrans' dwelling falls within the statutory definition 

of structure does not negate the fact that evidence of at least one necessary statutory 

element of second-degree arson was not present in this case—the requirement of 

section 806.01(2) that the structure involved not be a structure covered exclusively by 

the first-degree arson statute. 

Here, there was no evidence that the Beltrans' trailer home was some type 

of structure other than a dwelling. On the contrary, the defense conceded that it was 

the Beltrans' home. The total absence of evidence that the trailer was anything other 
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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, means that the trial court was 

not required to give a second-degree arson instruction when Mr. Stevens requested it 

based solely on the definition of "structure" in section 806.01(3). Its refusal to do so 

was thus proper. Cf. P.P.M. v. State, 447 So. 2d 445, 447-48 (Fla. 2d DCA 1984) 

(remanding for the entry of a judgment on a lesser included offense of arson of an 

unoccupied structure where the evidence at trial failed to established that the structure 

burned was a dwelling under section 806.01(1)(a)). 

 In our view, Moore improperly ignores the fact that the second-degree 

arson statute defines first-degree arson out of its scope.1 The opinion does not mention 

or address the "under any circumstances not referred to in subsection (1)" language 

included in section 806.01(2)'s definition of second-degree arson. By holding that arson 

of a dwelling is always arson of a structure—and therefore always second-degree 

arson—it reads that provision out of the second-degree arson statute. That approach is 

to us mistaken because we are required to give each word and phrase in a statute 

meaning and effect. See Vocelle v. Knight Bros. Paper Co., 118 So. 2d 664, 667 (Fla. 

1st DCA 1960). With respect to section 806.01(2), Moore fails to do so. 

 1The uncontroverted facts of this case demonstrate that the Beltrans' 

trailer was occupied when it was burned and that Mr. Stevens knew it, meaning that the 

evidence showed both arson of a dwelling under section 806.01(1)(b) and arson of an 

occupied structure under section 806.01(1)(c). In contrast, the facts of Moore were that 

the dwelling was not occupied at the time it was burned. That factual difference may 

offer additional support for this trial court's denial of the requested instruction, but it did 

not affect the result in Moore because the Fourth District's reasoning was that any 

dwelling—occupied or not—is a structure for purposes of second-degree arson, thus 

requiring a second-degree arson instruction in cases where first-degree arson of a 

dwelling is charged. 
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Moreover, contrary to Higgins, Moore effectively makes second-degree 

arson a necessary lesser included offense of first-degree arson. The logic of the 

decision is that because a dwelling within the meaning of the first-degree arson statute 

is always a structure within the meaning of the second-degree arson statute, a seconddegree arson instruction must be given upon request whenever the burning of a 

dwelling is involved and regardless of the charging documents and evidence at trial. 

Any of the other specific structures identified in the first-degree arson statute would also 

qualify as structures within the meaning of the second-degree arson statute. If Moore is 

taken at face value, then a second-degree instruction will be mandatory upon request in 

virtually all first-degree arson cases, regardless of what the charging document says 

and regardless of what evidence is presented at trial. The only exception would be that 

narrow category of cases, like Higgins itself, where the evidence shows only that the 

contents of a structure covered by the first-degree arson statute, and not the structure 

itself, had been burned. The Moore court's creation of a nearly categorical requirement 

that a second-degree arson instruction be given in first-degree arson cases strikes us 

as inconsistent with Higgins' holding that second-degree arson is not a necessary lesser 

included of first-degree arson and Higgins' statement that whether second-degree arson 

is a permissive lesser included depends on the circumstances of the case as 

demonstrated by the charging document and the evidence introduced at trial. 

The Moore court supported the result it reached by reference to a jury's 

pardon power. As Moore itself recognized, however, the fact that a jury may choose to 

exercise that power does not require a trial court to give a jury instruction on a 

permissive lesser included offense when there is no evidence to support it. 932 So. 2d 

at 527 (explaining that an instruction on a permissive lesser included offense is required 
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"if the charging instrument and the evidence admitted would support a conviction on the 

next lesser offense" (emphasis added)); see also Amado v. State, 585 So. 2d 282, 282-

83 (Fla. 1991) (holding, based on jury's pardon power, that an instruction on a 

permissive lesser included offense must be given unless there is a total lack of evidence 

for the lesser offense). In a case where, as here, the evidence is undisputed and shows 

only that the defendant burned an occupied dwelling covered exclusively by the firstdegree arson statute, there is by definition no evidence that could support the giving of 

a second-degree arson instruction for arson of an unoccupied structure. Moore's 

reliance on section 806.01(3) and the jury's pardon power does not override the 

language of section 806.01(2) and the actual facts presented at trial when a trial court is 

faced with determining whether a defendant charged under section 806.01(1) is entitled 

to an instruction under section 806.01(2). When that language is applied to these facts, 

the trial court properly concluded that Mr. Stevens was not entitled to his requested 

instruction. 

For the foregoing reasons, we affirm Mr. Stevens' convictions and 

sentences. In so doing, we certify conflict with Moore. 

Affirmed; conflict certified. 

 

NORTHCUTT and LaROSE, JJ., Concur.