I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I spent years in the Major Crimes Unit and later ran the Hillsborough County Public Defender’s Office as chief operating officer and chief assistant public defender, and arson was one of the few charges where I regularly watched the State’s entire case rest on a single expert’s opinion about burn patterns. Our attorneys defend arson charges throughout Hillsborough, Pinellas, and Pasco Counties, and we start every one of them the same way: by getting our own fire investigator to the scene, or to the photographs, before the State’s conclusions harden into the only version of events.

How Does Florida Law Define Arson?

Arson is willfully and unlawfully damaging property by fire or explosion — or causing that damage while committing any felony. Section 806.01, Florida Statutes, applies to “any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged” a covered structure or its contents. Three features of that definition drive nearly every arson case:

1. “Structure” is broad. Section 806.01(3) defines it as “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.” Setting a car on fire is arson, not criminal mischief.
2. Ownership does not matter. The statute reaches property “whether the property of himself or herself or another.” Burning your own house, boat, or truck is arson if the fire was set willfully and unlawfully.
3. Two routes to guilt. The ordinary route requires a willful and unlawful fire. The second route — a fire caused “while in the commission of any felony” — does not require the State to prove the fire was intentional at all, only that the defendant caused it during a felony such as a burglary.

What Is the Difference Between First-Degree and Second-Degree Arson in Florida?

Whether people were, or were likely to be, inside. First-degree arson under section 806.01(1) covers three categories of property: any dwelling, occupied or not, or its contents; any structure “where persons are normally present,” which the statute illustrates with jails, hospitals, nursing homes, department stores, office buildings, businesses, churches, and schools “during normal hours of occupancy”; and any other structure the defendant “knew or had reasonable grounds to believe was occupied by a human being.” Everything else that qualifies as a structure falls under second-degree arson in section 806.01(2).

The Florida Supreme Court settled the relationship between the two degrees in Stevens v. State, 226 So. 3d 787 (Fla. 2017), a case that came up from the Second District — the appellate court for Tampa Bay. Stevens and a codefendant beat and strangled a man in his trailer, robbed him, and later returned and set the trailer on fire to conceal the crime. Charged with first-degree arson of a dwelling, Stevens asked the jury to be instructed on second-degree arson as well. The court held he was not entitled to it: when the evidence undisputedly shows the structure was a dwelling, “first-degree arson is the only appropriate charge,” because the second-degree statute by its terms excludes structures covered by the first-degree statute. The practical point for a defendant is that in a dwelling case there is no “compromise verdict” on a lesser arson charge; the fight is over whether the State can prove arson at all.

What Are the Penalties for Arson in Florida?

Fifteen to thirty years of exposure for the fire itself, with separate, stackable charges for injuries and enhancements that can push a first-degree arson to a life felony:

Two of those rows deserve attention. Section 806.031, Florida Statutes, makes injury to a firefighter “or any other person” a separate crime from the arson itself, and subsection (3) expressly allows the court to sentence for both. A house fire that sends one firefighter to the hospital with smoke inhalation is two charges, not one. And arson is one of the enumerated felonies in Florida’s 10-20-Life statute, section 775.087, so an arson committed with a firearm or a “destructive device” — a term that includes incendiary devices — carries both the reclassification and a ten-year mandatory minimum. We cover how those minimums operate in our article on Florida’s 10-20-Life law.

The guideline levels come from the offense severity ranking chart in section 921.0022, Florida Statutes. First-degree arson at Level 8 scores 74 points before any prior record or victim injury is added, which puts a first-time offender well above the 44-point threshold at which the Criminal Punishment Code presumes a prison sentence. Second-degree arson at Level 7 scores 56 points — also over the line. Probation on an arson conviction is not the default outcome in Hillsborough County; it has to be negotiated or won.

Does the State Have to Prove You Meant to Burn the Building?

No — and this is the most misunderstood point in Florida arson law. Arson is a general-intent crime. The Florida Supreme Court so held in Linehan v. State, 476 So. 2d 1262 (Fla. 1985), where a man climbed through his girlfriend’s apartment window, held a lighter to her curtains, and left; the resulting fire consumed the building and killed a resident. The court held that “willfully” in the arson statute means the defendant intended the act of setting the fire, not that he intended the particular result. A person who deliberately lights a curtain is guilty of arson even if he sincerely expected the flame to go out.

That cuts both ways for the defense. It means “I only meant to burn the couch, not the house” is not a defense. But it also means the State must still prove two things beyond a reasonable doubt: that the fire was set willfully — deliberately, not by accident or carelessness — and that it was set unlawfully, meaning without a legitimate purpose. The First District’s decision in M.T.A. v. State, 182 So. 3d 689 (Fla. 1st DCA 2015), shows how much work those two words do. An eleven-year-old set fire to a box fan in the grass out of curiosity; the fire spread to a nearby shed. The court reversed his arson adjudication, holding that there “must be some proximity between the intentional act of setting a fire and the damage caused to render the result substantially certain to occur,” and that the State had made “no effort to show that the action was unlawful.” A fire that starts on the ground and spreads is not the same thing, legally, as a fire set to the structure itself.

One defense that no longer exists is intoxication. Linehan held that voluntary intoxication was unavailable because arson is a general-intent crime, and the Legislature has since gone further: under section 775.051, Florida Statutes, voluntary intoxication “is not a defense to any offense proscribed by law.” A defendant who set a fire while drunk cannot argue that he was too impaired to act willfully.

What Is “Felony Arson” — a Fire Set During Another Crime?

A fire the defendant causes while committing any felony is arson even if the fire was accidental. The “while in the commission of any felony” clause in section 806.01 relieves the State of proving intent: a burglar who knocks over a candle or a thief who sparks a fire hot-wiring a car is guilty of arson for the resulting damage. The clause does not, however, remove the requirement that the defendant actually caused the fire. In Grimes v. State, 181 So. 3d 587 (Fla. 1st DCA 2016), a man took a car after its owner refused him permission to drive it; hours later, a juvenile who had not been involved in the theft accidentally set the car’s interior on fire. The First District reversed the arson conviction: the defendant did not cause the fire, and the theft had long since ended, so the fire did not occur “during” the felony. The lesson is that felony arson requires a real causal and temporal connection between the felony and the fire, and the defense should insist on both.

Can You Be Charged With Arson for Burning Your Own Property in Florida?

Yes. Section 806.01(2) expressly applies to any structure “whether the property of himself or herself or another,” and the first-degree statute reaches “any dwelling, whether occupied or not.” The case the Florida Supreme Court used as its contrast in Stevens makes the point vividly: in Moore v. State, 932 So. 2d 524 (Fla. 4th DCA 2006), the defendant set fire to his own mobile home and then sat in a lawn chair with a six-pack of beer and watched it burn. He was convicted of first-degree arson of a dwelling.

Where ownership does matter is the “unlawfully” element. A controlled burn on your own land with a permit, a bonfire that stays where it was set, or the demolition of your own outbuilding by fire with the fire department’s approval is lawful and is not arson. The question is never whose property it was; the question is whether the fire was set for a legitimate purpose and in a lawful manner. In insurance cases the State’s theory of unlawfulness is fraud, and the arson count is usually accompanied by an insurance fraud count — which is why our attorneys treat the insurer’s investigation file as evidence to be obtained and attacked, not ignored.

How Are Arson Cases Investigated and Proven in Tampa Bay?

By fire science, and almost always by circumstantial evidence. Very few arsons are witnessed. The State’s case is typically built by a State Fire Marshal investigator or a fire department investigator who examines burn patterns, char depth, “V” patterns on walls, the presence or absence of electrical arcing, and laboratory analysis of debris for ignitable liquids. From that evidence the investigator offers an opinion on the fire’s origin — where it started — and its cause — whether it was accidental, natural, or incendiary.

Those opinions are governed by NFPA 921, the National Fire Protection Association’s Guide for Fire and Explosion Investigations, which requires investigators to follow the scientific method and to rule out accidental causes before classifying a fire as incendiary. Many of the “indicators” that convicted people a generation ago — crazed glass, spalled concrete, irregular burn patterns read as poured accelerant — have been discredited by controlled burn research, and a well-prepared defense expert can show a jury exactly how an investigator’s conclusion outran the evidence.

The Florida Supreme Court’s decision in Patterson v. State, 199 So. 3d 253 (Fla. 2016), illustrates both how these cases are built and how fragile the evidence can be. Patterson’s house and the truck parked in its garage were destroyed in two fires the same night. The State’s experts concluded the truck fire was incendiary based on burn patterns showing the fire started in the passenger compartment rather than the engine, a debris sample that tested positive for gasoline, plastic and aluminum in the engine compartment that would not have survived an engine fire, and wiring that showed no arcing. But by the time Patterson was charged, his insurer had already paid the claim and had the truck destroyed, so his own expert never examined it and worked from roughly 300 photographs. The court held that no due-process violation occurred because the State had not acted in bad faith — the insurer, not the police, destroyed the truck — and the conviction stood. The evergreen lesson is about timing: the physical evidence in an arson case is routinely gone within months, and a defense that begins after the arrest often begins after the scene, the debris, and the vehicle no longer exist.

How Do Our Attorneys Fight Arson Charges?

By putting the State’s fire science on trial, and by holding the State to every element of a statute that is broader than it looks:

1. Cause and origin. We retain an independent, NFPA 921-qualified fire investigator in every contested arson case, as early as possible, to review the scene, the debris samples, the photographs, and the State investigator’s methodology. An accidental cause that the State’s expert failed to eliminate — an electrical fault, a space heater, a lithium battery, a cooking fire — is a complete defense.
2. The “willfully” and “unlawfully” elements. After Linehan and M.T.A., the State must prove a deliberate act of setting a fire, and it must prove the act was unlawful. Where the fire began away from the structure, or where the defendant had a legitimate reason to have a fire at all, those elements are contestable.
3. Identification. Proving that a fire was incendiary does not prove who set it. Arson cases frequently rest on motive evidence — a pending foreclosure, an insurance policy, a dispute with the occupant — and on a defendant’s presence in the area. Motive and opportunity are not proof.
4. The felony-arson connection. When the State relies on the “while in the commission of any felony” clause, we hold it to Grimes: the defendant must have caused the fire, and the fire must have occurred during the felony, not after it ended.
5. Suppression. Statements to fire investigators are statements to law enforcement. Insurance examinations under oath, consent searches of a burned home, and warrantless re-entries by investigators days after the fire was extinguished are all subject to challenge.
6. Preservation of evidence. Patterson teaches that the State is not liable for evidence a third party destroys. We send preservation demands to insurers, property owners, and towing companies immediately, because the vehicle or the debris that could prove an accidental cause will not wait for the trial date.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

What Happens After an Arson Arrest in Hillsborough County?

You will be booked at the Orient Road Jail, and bond will not be automatic. Arson is listed as a “dangerous crime” in section 907.041(5)(a), Florida Statutes, which means the first-appearance judge cannot release you on your own recognizance once probable cause is found, and the State Attorney may move for pretrial detention. A monetary bond is typical for a first-degree arson charge, but it is often substantial, and conditions frequently include no contact with the property and its occupants.

The investigation, meanwhile, does not stop at arrest. The State Fire Marshal, the insurer’s investigators, and the State Attorney’s Office will continue to develop the cause-and-origin evidence, and the debris, the vehicle, and the structure itself may be released, remediated, or demolished within weeks. Defense counsel retained at the arrest stage can send preservation letters, get an expert to the scene, and shape the case before the State’s version is the only version.

What Should You Do If You Are Suspected of Arson in Florida?

Do not give a statement to a fire investigator, an insurance adjuster, or a detective without counsel. State Fire Marshal investigators are sworn law enforcement officers, and an insurance company’s “examination under oath” is a sworn statement that will be handed to the prosecutor. Do not consent to a search of the burned property or your phone. Do not file or pursue an insurance claim on the property without speaking to an attorney first, because the claim is where the State finds the “unlawful” purpose it needs. Preserve everything you have that shows where you were and what you were doing — receipts, phone location data, messages, witnesses. And if the fire involved a vehicle or a rental property, tell your attorney immediately so that a preservation demand goes out before the evidence is towed, sold for salvage, or bulldozed.

Frequently Asked Questions About Arson in Florida

Is arson always a felony in Florida?

Yes. First-degree arson is a first-degree felony with a 30-year maximum and second-degree arson is a second-degree felony with a 15-year maximum; there is no misdemeanor arson under section 806.01. The only misdemeanor in the arson chapter is section 806.031(1), which punishes an arson that causes minor bodily harm as a separate first-degree misdemeanor on top of the felony.

What is the difference between arson and criminal mischief in Florida?

Arson requires fire or explosion and damage to a “structure” as the statute defines it; criminal mischief under section 806.13 covers willful and malicious damage to any property by any means, graded by dollar amount. Burning personal property that is not a structure — a pile of clothes in a yard, for example — is typically charged as criminal mischief, while burning a shed, a car, or a building is arson. We explain the criminal mischief tiers in our article on whether criminal mischief is a felony in Florida.

Can I be charged with arson if the fire was an accident?

Not under the ordinary arson statute, which requires a willful and unlawful act of setting a fire. An accidental fire is not arson, and the State bears the burden of excluding accidental causes. The exception is a fire caused while committing another felony, which is arson even if accidental. The Brancato Law Firm, P.A. retains independent fire investigators precisely because “accident” is the defense the State’s expert is paid to rule out.

Is setting fire to a car arson in Florida?

Yes. Section 806.01(3) defines “structure” to include “any vehicle, vessel, watercraft, or aircraft,” so burning a car is at least second-degree arson, a second-degree felony punishable by up to 15 years. If a person was inside or the defendant had reason to believe someone was, it is first-degree arson.

What if I burned my own house or car?

It is still arson if the fire was set willfully and unlawfully; the statute expressly covers property “of himself or herself or another.” In practice these cases are prosecuted as insurance fraud plus arson, and the unlawful purpose the State alleges is the claim. The defense turns on cause and origin and on whether the State can prove the fire was incendiary at all.

Can a juvenile be charged with arson in Florida?

Yes, and juveniles are charged with arson more often than most people expect, usually for fires set in schools, sheds, or abandoned buildings. The elements are the same, and the M.T.A. decision — reversing an eleven-year-old’s arson adjudication for a grass fire that spread to a shed — shows that the willfulness and unlawfulness elements are real defenses in juvenile court. Serious arson charges can also be direct-filed to adult court, which is a decision our attorneys work to prevent at the earliest stage.

Will an arson conviction affect my ability to get insurance or own property?

A conviction is a permanent public record that insurers, lenders, and landlords can see, and an arson conviction connected to an insurance claim will typically bar recovery on that claim and make future property coverage difficult to obtain. Because the collateral consequences are so severe, The Brancato Law Firm, P.A. treats even a plea to a reduced charge as something to be negotiated with those consequences in mind.

If you or a family member is being investigated for or has been arrested for arson anywhere in Tampa Bay, the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — will get an independent fire investigator involved and put the State on notice to preserve the scene, the debris, and the vehicle before they disappear. Call (813) 727-7159. In arson cases the evidence that proves an accident is often gone within weeks, and no expert can examine a truck the insurer has already scrapped.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.