St. Petersburg Arson Defense Attorney

Arson Generally

Arson involves the intentional damage to property by fire or explosion. "Property" includes both "real" (such as a house, condominium, or apartment) and "personal" (such as car, boat, or airplane). Total destruction of a house, structure, or conveyance is not required to sustain an arson charge. Any degree of damage, whether by fire or explosion, will suffice. Arson offenses occur in the Tampa Bay area more frequently than you may think. Every couple of months, a news article will surface detailing the circumstances under which a person was arrested, charged, and prosecuted for arson.

Florida law draws a distinction between arson in the first degree and arson in the second degree. A person may be charged with arson in the first degree where he or she either (1) intentionally; or (2) while in the commission of any felony, damages any dwelling (or its contents), whether it is occupied or not, by fire or explosion. A person may also be charged with arson in the first degree if he or she damages, under the same circumstances, any structure (or its contents) where persons are normally present or where the person knew or had grounds to believe it was occupied by another. A person may be charged with arson in the second degree where he or she either (1) intentionally, or (2) while in the commission of any felony, damages any structure by fire or explosion. It does not matter whether the property belongs to the defendant or to someone else. Thus, what distinguishes arson in the first degree from arson in the second degree is not the manner or means by which the crime was committed or the extent of damage; the distinction lies in the type of property affected. The former involves either (1) a place where people live; or (2) a structure where people normally congregate (such as a school) whereas the latter involves any other type of structure (such as a storage shed).

Arson in the first degree is a first degree felony, which is punishable by up to thirty years in state prison. It is also a level 8 offense on the sentencing guidelines, which means a person charged with this particular offense will be scoring mandatory prison time. Arson in the second degree is a second degree felony, which is punishable by up to fifteen years in prison. It is a level 7 offense, which also scores mandatory prison, without regard to any additional offenses or prior record. Sentencing In Florida can be very complicated. and therefore, specific questions should be directed to an experienced St. Petersburg area criminal defense attorney. For more information, see the "Sentencing" section of our website.

If, during the commission of an arson offense, the defendant causes injury or harm to a firefighter or other person, the defendant may be prosecuted for "Arson Resulting in Injury to Another", a separate offense. The person can be prosecuted even though he or she did not intend to cause such harm (most criminal offenses require either a general or specific intent to commit a crime; this is an example of what is called a "strict liability" crime). Even though this offense results from the same episode as the underlying arson crime, the person may be convicted and sentenced for both - there is no double jeopardy prohibition under these circumstances. Also, a conviction on the underlying arson charge is not necessary to sustain a conviction for arson resulting in injury to another. If "bodily harm" results, the offense constitutes a misdemeanor of the first degree, which is punishable by up to a year in the county jail. If "great bodily harm", "permanent disability" or "permanent disfigurement" result, the offense constitutes a second degree felony.

Applicable Florida Statute

The following is a list of Florida statutes that pertain to arson offenses and those that relate to arson, as set forth in Chapter 806.

Florida statutes § 806.01 provides as follows:

• (1) Any person who willfully and unlawfully, or while in the commission of any felony, by fire or by 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, detention centers, hospitals, nursing homes or other health care facilities, department stores, office buildings, business establishments, churches, or educational institutions; or (c) any other structure that he or she knew or had reasonable grounds to believe was occupied by a human being is guilty of arson in the first degree, which constitutes a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
• (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, which constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
• (3) As in this chapter, "structure" means any building of any kind, any enclosed area with a roof over it, any real property and appurtenances thereto, any tent or other portable building, and any vehicle, vessel, watercraft, or aircraft.

Whether first or second degree arson is charged, the person is facing a mandatory prison score on Florida's sentencing guidelines.

Applicable Jury Instructions

The following is a list of each element of each variation of arson offense, which the state must prove as a condition precedent to a finding of guilt:

• Florida Standard Jury Instruction 12.1(Arson in the First Degree) provides as follows:

To prove the crime of arson, the state must prove the following [three][four] elements beyond a reasonable doubt:

• (1) The defendant [damaged][caused to be damaged] (structure or contents alleged) by [fire][explosion];
• (2)(a) The damage was done willfully and unlawfully; or (b) The damage was caused while the defendant was engaged in the commission of (felony alleged);
• (3) The (structure alleged) was: (a) a dwelling; (b) [an institution in which the damage occurred during the normal hours of occupancy][an institution where persons are normally present]; or (c) a structure.
• (4) (where applicable) The defendant knew or had reasonable grounds to believe the (structure alleged) was occupied by a human being.

"Structure" means: (1) any building of any kind; (2) any enclosed area with a roof over it; (3) any real property and its appurtenances; (4) any tent or other portable building; (5) any vehicle; (6) any vessel; (7) any watercraft; (8) any aircraft.

• Florida Standard Jury Instruction 12.2 (Arson in the Second Degree) provides as follows:

To prove the crime of Arson - second degree, the state must prove the following [three][four] elements beyond a reasonable doubt:

(1) The defendant [caused to be damaged][damaged] a (structure alleged) owned by the defendant or another, [explosion][fire];

(2)(a) The damage was done willfully and unlawfully; or (b) The damage was caused while the defendant was engaged in the commission of (felony alleged);

(3) The (structure alleged) is a structure.

"Structure" means: (1) any building of any kind; (2) any enclosed area with a roof over it; (3) any real property and its appurtenances; (4) any tent or other portable building; (5) any vehicle; (6) any vessel; (7) any watercraft; (8) any aircraft.

• Florida Standard Jury Instruction 12.3 (Arson - Fire Bomb) provides as follows:

To prove the crime of (crime charged), the state must prove the following two elements beyond a reasonable doubt:

• (1) The defendant [manufactured][possessed][gave to (person alleged)][loaned to (person alleged)][offered for sale to (person alleged)][sold to (person alleged)][transferred to )person alleged)][transported][disposed of][offered to (person alleged)] a firebomb
• (2) A the time, the defendant intended that the firebomb would be willfully and unlawful used to damage by [fire][explosion] any structure or property.

A "firebomb" is a container containing flammable liquid, or combustible liquid, or any incendiary chemical mixture or compound, having a wick or similar device capable of being ignited or other means capable of causing ignition; but no device commercially manufactured primarily for the purpose of illumination, heating or cooking shall be deemed a firebomb.

Potential Sentencing Enhancements

Under the Prison Releasee Re-Offender statute, as set forth in s. 775.082(9)(a), a person who commits (or attempts to commit) an enumerated offense, including arson, within three years of release from a state or federal prison, must be sentenced to the statutory maximum. Thus, for a charge of arson in the first degree, the accused person is facing a thirty year sentence and, for a charge of arson in the second degree, the person is facing a fifteen year sentence. The sentencing guidelines do not apply to a PRR enhanced offense and therefore, there is no sentencing "range".

Under the Habitual Violent Felony Offender statute, as set forth s. 775.084(1)(b), a defendant who has previously been convicted of an enumerated felony (including arson), and the pending felony for which the defendant is to be sentenced was committed either: (a) while the defendant was serving a prison or other sentence that was imposed as a result of a prior conviction for an enumerated felony (including arson); or (b) within five years of the date of conviction of the last prior enumerated felony (including arson), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or other sentence that is imposed as a result of a prior conviction for an enumerated felony (including arson), whichever is later, will be subject to certain sentencing enhancements. In the case of a life felony or a felony of the first degree, the defendant may be sentenced to life and shall not be eligible for release for fifteen years. In the case of a second degree felony, for a term not exceeding thirty years, and the defendant shall not be eligible for release for ten years. In the case of a felony of the third degree, the defendant may be sentenced to a term not exceeding ten years and shall not be eligible for release for five years.

Under the Three Time Violent Felony Offender statute, as set forth in. s. 775.084(1)(c), the court must impose certain mandatory minimum terms of imprisonment if it finds that (1) the defendant has previously been convicted two or more times of an enumerated felony (or an attempt to commit an enumerated felony - including arson), and (2) the felony for which the defendant is to be sentenced is an enumerated felony (including arson) and was committed: (a) while the defendant was serving a prison sentence or other sentence imposed as a result of a conviction for an enumerated felony (including arson); or (b) within five years of the date of conviction of the last prior enumerated felony (including arson), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or other sentence imposed as a result of a prior conviction for an enumerated offense (including arson), whichever is later. The court must sentence a three time violent felony offender as follows: in the case of a felony punishable by life, to a term of imprisonment for life; in the case of a felony of the first degree, to a term of imprisonment of thirty years; in the case of a felony of the second degree, to a term of imprisonment of fifteen years; and in the case of a felony of the third degree, to a term of imprisonment of five years.

Under the Violent Career Criminal statute, as set forth in s. 775.084(1)(d), the court must impose certain mandatory terms of imprisonment if it finds that: (1) the defendant has previously been convicted three or more times for an offense in this state that is a forcible felony (including arson) or other enumerated offense; (2) the defendant has been incarcerated in a state or a federal prison; (3) the primary felony offense for which the defendant is to be sentenced is an enumerated felony (including arson), was committed on or after October 1st, 1995, and (a) while the defendant was serving a prison or other sentence that was imposed as a result of a prior conviction for an enumerated felony (including arson); or (b) within five years of the date of conviction of the last prior enumerated felony (including arson), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, or parole, or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later. Where such findings are made, the court must sentence the violent career criminal as follows: in the case of a life felony or a felony of the first degree, for life; in the case of a felony of the second degree, for a term of years not exceeding forty with a mandatory minimum term of thirty years imprisonment; in the case of a felony of the third degree, for a term of years not exceeding fifteen, with a mandatory minimum of ten years imprisonment.

Related Offenses

The following is an overview of arson related offenses, as set forth in Chapter 806, Florida Statutes:

• Arson Resulting in Injury to Another (Fla. Stat. § 806.031)

A person who perpetrates any arson that results in any bodily harm to a firefighter or to any other person, regardless of intent or lack of intent to cause such harm, is guilty of a misdemeanor of the first degree. A first degree misdemeanor of the first degree is punishable by up to one year in the county jail.

A person who perpetrates any arson that results in great bodily harm, permanent disability, or permanent disfigurement to a firefighter or to any other person, regardless of intent or lack of intent to cause such harm, is guilty of a felony of the second degree.

Any person who willfully and maliciously injures, destroys, removes, or in any manner interferes with the use of, any vehicles, tools, equipment, water supplies, hydrants, towers, buildings, communication facilities, or other instruments or facilities used in the detection, reporting, suppression, or extinguishable of fire shall be guilty of a felony of the third degree. A third degree felony is punishable by up to five years in state prison.

Any person who willfully or unreasonably interferes with, hinders, or assaults, or attempts to interfere with or hinder, any firefighter in the performance of his or her duty shall be guilty of a felony of third degree.

Whoever, without reasonable cause, by outcry or the ringing of bells, or otherwise, makes or circulates, or causes to be made or circulated, a false alarm of fire shall, for the first conviction, be guilty of a misdemeanor, of the first degree. A second or subsequent conviction shall constitute a felony of the third degree.

Any person who possesses, manufactures, transports or disposes of a firebomb with intent that such firebomb, be willfully and unlawfully used to damage by fire or explosion any structure or property is guilty of a felony of the third degree. "Firebomb" means a a container containing flammable or combustible liquid, or any incendiary chemical mixture or compound having a wick or similar device capable of being ignited or by other means capable of causing ignition, but no device commercially manufactured primarily for the purpose of illumination, heating or cooking shall be deemed to be such a firebomb.

If you have been arrested or charged with Arson, an experienced St. Petersburg Criminal Defense Attorney can help. Contact The Kilfin Law Firm, P.C. at (888) 258-8049 to schedule your free initial consultation.

Defenses To Your St. Petersburg, Clearwater, or Tampa Area Arson Charge

The two primary defenses in these types of cases are identification and lack of intent. Most people are not going to commit an arson offense in broad daylight with plenty of potential witnesses who can make an in court identification. Lack of ID may therefore be a viable defense where there are are no eye witnesses to the commission of the crime, the witness or witnesses' observations are somehow unreliable, and/or the accused has not made any incriminating statements during the course of the investigation. The state may seek to establish ID despite issues with witness observations, in situations where an accused person does not have a sufficient alibi, and /or where the accused person has a viable motive to commit the crime. Motive to commit arson may include an insurance payout on the property, or as some form of retribution (I once prosecuted a person for arson after she burned her boyfriend's house to the ground for suspected infidelity).

If the person has made inculpatory statements, the defense would want to carefully scrutinize the circumstances under which the statements were made. If the statements were the result of a Miranda Rights violation, or were coerced, they may be suppressible. Without an admission, the State's case may be severely damaged, especially in the absence of credible witnesses and an apparent motive.

The second type of defense often raised in an arson case is lack of intent, or accident. The state's case will always include the opinion of a fire investigator. If the charge is brought, that person will have examined the crime scene and opined that the cause of the fire was intentional. The defense would therefore want to retain a private fire investigator to examine the evidence against the accused person, the bases for the state investigator's opinion, and in all likelihood, visit the scene of the purported crime. If it can be shown that the fire may have been caused by faulty wiring, gas line hookup defects, or electrical issues with a household appliance, the state may have issues proving the requisite criminal intent beyond a reasonable doubt. Of course, no two cases are alike and the most viable defense strategy will depend on the underlying facts and circumstances.

Resources

The following is a list of outside sources, prior blog posts, ad other website sections on topics related to arson offenses:

Links

1. HG. Org: St. Petersburg Arson Attorney.
2. HG. Org: St. Petersburg Criminal Mischief Attorney
3. HG. Org: Florida Sentencing Enhancements Pt. 1: Prison Releasee Re offenders
4. HG. Org: Florida Sentencing Enhancements Pt. 2: Habitual Felony Offenders and Habitual Violent Felony Offenders
5. HG. Org: Florida Sentencing Enhancements Pt. 3: Three Time Violent Felony Offenders and Violent Career Criminals
6. HG. Org: Florida Sentencing Enhancements Pt.4: 10-20-Life
7. Division of the State Fire Marshall

Blog Posts

1. Do I Need a St. Petersburg Criminal Defense Attorney?
2. They Never Read Me My Rights - Can My Charge Be Dismissed?
3. Inchoate (Incomplete) Crimes: Attempt, Solicitation and Conspiracy
4. Florida's Principal Statute: All For One and One For All
5. Pre-Trial Release in Florida: The Basics
6. Speedy Trial in Florida: An Overview
7. Florida Sentencing Guideline Departures: Youthful Offenders
8. Florida Sentencing Guildeline Depatrures: Unsophisticated/Isolated/Remorse
9. Florida Sentencing Guideline Departures: Need for Restitution
10. Florida Sentencing Guideline Departures: Legitimate, Uncoerced Plea Bargain
11. Florida Sentencing Guideline Departures: Youth & Inability to Appreciate Consequences

Sections

1. Alibi as a Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
2. Statute of Limitations as Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
3. Affecting the Filing Decision
4. Plea Negotiations
5. Defensive Motions
6. Trial
7. Sentencing
8. Probation Violations
9. Violent Felony Offenders of Special Concern
10. Criminal Mischief

The Bottom Line

Arson is an extremely serious property crime with severe potential penalties. As always, early intervention by an experienced St. Petersburg, Clearwater, or Tampa area criminal defense attorney can have a tremendous impact on the outcome of the case.

If you have been arrested or charged with an arson offense in the Tampa Bay area, or think you might be, contact The Kilfin Law Firm, P.C. to discuss the details of your situation.