Stevens v. State, 195 So. 3d 403

Vernon Stevens was convicted of first-degree murder, first-degree arson of a dwelling, and robbery with a deadly weapon for burning the Beltrans' trailer (their dwelling) after beating the victim.
The information charged Stevens with first-degree arson under section 806.01(1)(a) (arson of a dwelling or its contents).
Stevens conceded the trailer was the Beltrans' home but requested a jury instruction on second-degree arson of a structure under section 806.01(2) as a permissive lesser included offense.
The trial court denied the request; the Second District affirmed the convictions and held a second-degree arson instruction was not required where evidence showed the structure was used exclusively as a dwelling.
The court certified conflict with Moore v. State (Fourth DCA), which held a dwelling is always a structure for second-degree arson and thus a second-degree instruction should be given upon request.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a trial court must give a permissive lesser included instruction on second-degree arson when defendant is charged with first-degree arson of a dwelling	Stevens: a dwelling is a "structure" under §806.01(3), so the jury should be allowed to consider second-degree arson as a lesser included offense	State: §806.01(2) expressly limits second-degree arson to circumstances not covered by subsection (1); where evidence shows the burned structure is exclusively a dwelling, no evidence supports second-degree arson	The court held no instruction required: second-degree arson is excluded where the evidence and charging document show the burned structure is exclusively a dwelling covered by first-degree arson; conflict with Moore certified
Whether Moore v. State controls such cases	Stevens (invoking Moore): Moore requires both first- and second-degree arson instructions because a dwelling is always a structure	State: Moore ignores §806.01(2)'s "not referred to in subsection (1)" language and improperly treats second-degree arson as necessarily subsumed	The court rejected Moore: giving mandatory second-degree instructions when dwelling is conceded would render §806.01(2) meaningless

Williams v. State, 957 So. 2d 595 (Fla. 2007) (distinguishes necessary vs. permissive lesser included offenses)
Sanders v. State, 944 So. 2d 203 (Fla. 2006) (explains permissive lesser-included concept)
Higgins v. State, 565 So. 2d 698 (Fla. 1990) (second-degree arson is not a necessary lesser of first-degree arson; permissiveness depends on evidence)
Khianthalat v. State, 974 So. 2d 359 (Fla. 2008) (permissive lesser requires charging document and some evidence of every element)
Moore v. State, 932 So. 2d 524 (Fla. 4th DCA 2006) (contrary view: a dwelling is always a structure, so second-degree instruction required)