NOT FINAL UNTIL TIME EXPI RES 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 convic tions and sentences for first- degree murder, first-degree arson of a dwelling, and robbery with a de adly 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 ins truction on second-degree- 2 - 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 permissi ve, lesser included offense of first-degree arson of a dwelling is not required whe re, as here, the undisputed

trial evidence demonstrates tha t the structure that is the subj ect of the arson charge was used exclusively as a dwelling, thereby excluding it from c onsideration as a second-degree arson offense under the plain language of the ars on 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 o f 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 unconscious ness—the evidence does not establish precisely when he died—Mr. Stevens and Mr. Diaz l eft 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 in side. The information under which Mr. Stevens was charged alleged tha t 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. Ste vens did not dispute that the trailer home was a dwelling within the meaning of the statu te; in fact, he conceded that it was the Beltrans' home. At trial, however, he requeste d that the jury be instructed on second-degree arson of a str ucture under section 806.01(2). His reason was that a dwelling under section 806.01(1)(a) is also a structure under s ections 806.01(2) and- 3 - that the jury should have the opportunity to consider both the charged and the lesser

included arson offenses. The tr ial court denied the request, f inding that the evidence did not support an instruction on second-degree arson. We agre e. 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 t hose of the charged offense, th e lesser offense is deemed necessary. Id. A lesser of fense is permissive, however , where "the two offenses appear to be separate [on the face of the statutes], b ut the facts alleged in the accusatory pleadings are such that the lesser [included] offens e cannot help but be perpetrated once the greater offense has been." Sanders, 944 S o. 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 incl uded offense upon request by the defendant regardless of whether the evidenc e 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 of fense 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 wo uld support a verdict on- 4 - the lesser offense." Khianthalat, 974 So. 2d at 361 (alteratio n 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 relations hip between first- and second-degree arson under section 806.01. The difference betwe en the two offenses primarily relates to the issue of human occupancy. Krantz v. S tate, 553 So. 2d 746, 747 (Fla. 5th DCA 1989) ("As can be seen, the difference between fi rst degree arson and second degree arson concerns primarily human occupancy."). Fir st-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 committe d when "[a]ny person . . . willfully and unlawfully, or while in the commission of any fel ony, by fire or explosion, damages or causes to be damaged" (a) "[a]ny dwelling, whether o ccupied or not, or its contents," (b) "[a]ny structure, or contents thereof, where per sons are normally present," or (c) "[a]ny other structure t hat he or she knew or had reason able grounds to believe was occupied." Second-degree ar son under section 806.01(2) inv olves the burning of other structures that are not expressly listed in the first-deg ree arson statute: it hinges on whether the fire or explosion "damage[d] or cause[d] to be d amaged 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 bur ning 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-de gree arson can be committed only "under any circumstances not referred to in subs ection (1)"—i.e., only- 5 - under circumstances that do not constitute first-degree arson. Under the statute, then, acts constituting the offense o f first-degree arson are express ly excluded from the scope of the offense of second-degree arson. By statutory desi gn, the circumstances constituting first-degree arson cannot simultaneously constitut e second-degree arson. One implication of this statutory separation of the two degre es 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 ar son under section 806.01(1)(b), which applies to "a structure or contents thereof where persons are normally present," where there wa s evidence that the inmate bur ned his mattress but not the prison building itself. Id. at 699. Affirming the con viction, the Fourth District held that he was not entitled to a second-degree arson instruction a nd certified a question regarding whether second-degree arson is a necessary lesser inc luded of first-degree

arson. Id. at 698. The supreme court answered th at 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 cou rt quoted at length from the Fourth District's opinion in the case, including the follow ing 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 se cond degree arson covers damage only to structures not described in first degree arson.- 6 - 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- an d second-degree arson are wholly separate, and one cannot be committed when the other has been. The court did recognize, howev er, that "under certain circums tances and evidence" second-degree arson is a permissive lesser included o ffense of first-degree

arson. Id. at 700. Those "circumstances and evidence" were no t present in Higgins, however, because the evidence es tablished only that Higgins bur ned a mattress in his prison cell, not the prison itse lf. Id. Because second-degree arson requires the element of burning an actual structure (a mattress does not count) whil e first-degree arson can also occur upon the burning of the contents of a structure that is normally occupied (a mattress does count), the evidenc e of first-degree arson in Hig gins, 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 evi dence presented in Higgins so as to support an instruction on that offense. See K hianthalat, 974 So. 2d at

361. Higgins did not specify the "circumstances and evidence" unde r which a trial court would be required to instruct a jury on second-degr ee 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 fo r 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 conclus ion that every time a structure is burned, a second-degree arson instruction should b e given if requested. If it- 7 - did, the Higgins court's recognition that "first degree arson d oes 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 ther e will be cases in which an i nstruction on seconddegree arson should be given upon request in a first-degree ars on case. In Moore, the defendant set the trailer home in which he resi ded with his

mother on fire and watched it burn. 932 So. 2d at 526. The de fendant was charged with first-degree arson, and at trial he requested an instructi on on second-degree arson,

which the trial court denied. Id. Although the evidence showe d that the trailer home was only a dwelling and not any other type of structure, the Fo urth 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 stru cture 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 ar son 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 secti on 806.01(3) includes both dwellings covered by the first-degree arson statu te and various other structures covered by the second-degree arson statute. That de finitional fact does not suggest anything, however, about section 806.01(2)'s separate a nd explicit requirement that the circumstances constituting second-degree arson cannot simultaneously be circumstances constituting first-degree arson. That requiremen t logically means that- 8 - second-degree arson cannot occur wh en there is no dispute that a structure covered by the first-degree arson statute has been burned. Recognizing th at a dwelling is a type of structure says nothing about whether and under what circumstanc es 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 t he evidence at trial fail to include all of the second-degree arson elements—including th e element that the structure involved not be a dwelling covered by the first-degre e arson statute. That conclusion flows necessarily both from the statutory sep aration of first- and second-degree arson and from the settled principle t hat an instruction on a permissive lesser included offense need be given only when ther e 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 circ umstances 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 a rson because there was no evidence from which the jury c ould conclude that the structu re burned was anything but a dwelling. Accepting that the Beltrans' dwelling falls wi thin the statutory definition of structure does not negate t he 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 structur e 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 dwelli ng. On the contrary, the defen se conceded that it was

the Beltrans' home. The total absence of evidence that the tra iler was anything other- 9 - 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, me ans 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 off ense of arson of an unoccupied structure where the evidence at trial failed to esta blished that the structure burned was a dwelling under section 806.01(1)(a)). In our view, Moore improperly ignores the fact that the secon d-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 subs ection (1)" language included in section 806.01(2)'s definition of second-degree ars on. By holding that arson of a dwelling is always arson of a structure—and therefore alwa ys second-degree arson—it reads that provision out of the second-degree arson st atute. That approach is to us mistaken because we are required to give each word and ph rase 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.

1 The uncontroverted facts of this case demonstrate that the Belt rans' trailer was occupied when it was burned and that Mr. Stevens kn ew 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, th e 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 r equested instruction, but it did not affect the result in Moore because the Fourth District's re asoning 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 firs t-degree arson of a dwelling is charged.- 10 - Moreover, contrary to Higgins, M oore effectively makes second-d egree 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 f irst-degree arson statute is always a structure within the meaning of the second-degree a rson statute, a seconddegree arson instruction must be given upon request whenever th e burning of a dwelling is involved and regardless of the charging documents a nd evidence at trial. Any of the other specific structures identified in the first-de gree arson statute would also qualify as structures within the meaning of the second-degree a rson statute. If Moore is taken at face value, then a second-degree instruction will be m andatory upon request in virtually all first-degree ars on cases, regardless of what the charging document says and regardless of what evidence is presented at trial. The onl y exception would be that narrow category of cases, like Higgins itself, where the eviden ce shows only that the contents of a structure covered by the first-degree arson statu te, and not the structure itself, had been burned. The Moore court's creation of a nearl y 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 whet her second-degree arson is a permissive lesser included depends on the circumstances of the case as demonstrated by the charging document and the evidence introduc ed at trial. The Moore court supported the re sult it reached by reference to a jury's pardon power. As Moore itself r ecognized, however, the fact th at a jury may choose to exercise that power does not require a trial court to give a ju ry 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 i ncluded offense is required- 11 - "if the charging instrument and the evidence admitted would sup port 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 i s a total lack of evidence for the lesser offense). In a case where, as here, the evidenc e is undisputed and shows only that the defendant burned an occupied dwelling covered exc lusively by the firstdegree arson statute, there is b y definition no evidence that c ould support the giving of a second-degree arson instruction for arson of an unoccupied st ructure. 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 sectio n 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 ent itled to his requested

instruction. For the foregoing reasons, we a ffirm Mr. Stevens' convictions a nd sentences. In so doing, we certify conflict with Moore. Affirmed; conflict certified.

NORTHCUTT and LaROSE, JJ., Concur.