STATE OF FLORIDA, APPELLANT,

v.

JOHN MORRIS JONES, APPELLEE

COBB, Judge.

This case presents a question of first impression: Is an unenclosed motorcycle a “structure” contemplated by the statutory provisions of section 806.01, Florida Statutes (1985), relating to the crime of arson in the second degree? The applicable statute provides:

806.01 Arson.—

(1)Any person who willfully and unlawfully, by fire or 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, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or (c) Any other structure that he 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, by fire or explosion, damages or causes to be damaged any structure, whether the property of himself 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 used 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.

Jones was charged with violation of section 806.01(2) by willfully damaging, by fire or explosion, the victim’s motorcycle. The trial court dismissed the charge, based on its determination that the statutory provision only pertains to vehicles which are covered or could be used for human habitation.

The state contends that, by definition, a motorcycle is a vehicle under subsection (3) above, regardless of whether it is enclosed or has a roof over it. The state points to definitions found in Chapters 316, and 320, Florida Statutes (1985), which treat a motorcycle as a “motor vehicle,” and argues that the term “motor vehicle” is logically subsumed within the term “vehicle.” From a policy standpoint, the state contends that the arson statute includes mo torcycles because they have fuel tanks subject to detonation and consequent public risk.

Jones argues that the crime of igniting an unoccupied motorcycle is addressed by section 806.13, Florida Statutes (1985), the criminal mischief statute, which prohibits willful damage to personal property. He contends that, as the trial court found, the more serious offense of second degree arson should only apply to the burning of “that type of structure that has a roof or sides where a special risk from fire exists to possible inhabitants or visitors,” and that the word “vehicle” in subsection (3) refers only to “cars and other vehicles with sides or roofs or other covered vehicles.”

As noted, this is a case without precedent. Notwithstanding the literal construction of the statute urged by the state, we have difficulty construing an ordinary motorcycle to be a “structure.” Accordingly, we certify the question presented above to the Florida Supreme Court pursuant to Florida Rule of Appellate Procedure 9.125.

QUESTION CERTIFIED.

COWART, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

In my opinion the legislature could not have meant to define a motorcycle, whether “occupied” or not, as a structure. It is almost a given that no one, but perhaps an appellate court interpreting a legislative enactment, would logically or reasonably call a motorcycle a structure.

In order to give a reasonable interpretation to the legislative intent I think we should treat the matter just as did the trial judge and the lawyer, both intelligent, reasonable persons. The principal and guiding portion of the statute says a structure is “... where persons are normally present ...” and then goes on to mention buildings we all commonly think of as structures. Where the state and the majority get hung up is in the last part of the statute where it says “vehicle, vessel, watercraft or aircraft.” All of these in some of their forms can be, and some are, inhabited and burned down. The statute means to more severely punish those who burn structures which can be inhabited, that is clear to me. A motorcycle “vehicle” is not a structure which can be inhabited; nor is a surf-board “watercraft”; nor is an ultra-light “aircraft”; nor is a “vessel” of wine.

I would not pass the question to the supreme court without ruling; I would affirm.