FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
for Review of the Decision of the District Court of Appeal -
Certified Direct Conflict of Decisions Second District - Case
No. 2D13-2148 (Hendry County)
Stephen M. Grogoza, Special Assistant Public Defender,
Bartow, Florida, for Petitioner.
Jo Bondi, Attorney General, Tallahassee, Florida; and John
Klawikofsky, Chief Assistant Attorney General, and Donna S.
Koch, Assistant Attorney General, Tampa, Florida, for
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.
AND PROCEDURAL BACKGROUND
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
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
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.
preliminary charge conference, Stevens requested an
instruction for second-degree arson as a lesser included
offense of first-degree arson. Then, the following exchange
[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
[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.
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 ...