FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Manatee County; Susan B. Maulucci,
Jervis Wise of Brunvand Wise, P.A., Clearwater, for
Moody, Attorney General, Tallahassee, and Michael Schaub,
Assistant Attorney General, Tampa, for Appellee.
Williams appeals a judgment and life sentence after he was
found guilty by a jury of second-degree murder. Because the
trial court committed fundamental error by misclassifying
Williams' second-degree murder conviction as a life
felony instead of a first-degree felony, we reverse and
remand for resentencing with instructions. We affirm without
comment the remaining issues raised by Williams.
murder is a first-degree felony punishable by imprisonment
for a term of years not exceeding life or as provided in
sections 775.082, 775.083, and 775.084, Florida Statutes
(2006)." Robinson v. State, 37 So.3d 921,
921-22 (Fla. 2d DCA 2010); see also Harris v. State,
674 So.2d 110, 113 (Fla. 1996). The penalty for a
first-degree felony is governed by section 775.082(3)(b)(1),
Florida Statutes (2015), which provides that a person who
commits a first-degree felony may be sentenced to "a
term of imprisonment not exceeding 30 years or, when
specifically provided by statute, by imprisonment for a term
of years not exceeding life imprisonment."
error here began during sentencing when the trial court was
first misdirected by the State's
representation that Williams' conviction was a life
felony and that the State had looked at the issue the day
before. It was after this representation by the State that
Williams' attorney directed the court to section
775.082(3)(a)(2), dealing with a life felony. The sentencing
court indicated it may have imposed a sentence less than life
imprisonment if it had the benefit of greater discretion in
choosing the appropriate sentence, but that it was
constrained by section 775.082(3)(a)(2), to impose either a
bottom of the guidelines sentence of forty years or life
imprisonment. Having relied upon and provided the sentencing
court with the incorrect statute, Williams now argues
fundamental error, to which the State contends the defense
invited the error.
facts here do not establish Williams' defense counsel
invited the error, especially where the State set the error
in motion. See, e.g. Goodwin v. State, 751 So.2d
537, 544 n. 8 (Fla. 1999) (holding the invited error doctrine
prohibits a party from inviting an error at trial and then
taking advantage of error on appeal). Both counsel for the
State and Williams were mistaken that the degree at issue was
a life felony, as opposed to a first-degree felony, and thus
the invited error doctrine has no application. See
Goldwire v. State, 73 So.3d 844, 846 (Fla. 4th DCA
2011). The sentencing court indeed had the discretion to
sentence Williams to a term of imprisonment not to exceed
thirty years under the correct statute - section
775.082(3)(b)(1). Given that the sentencing court indicated
it would have otherwise exercised discretion, but for the
lack of any discretion imposed by the life felony statute
section 775.082(3)(a)(2), reversal is warranted for
resentencing. See Williams v. State, 249 So.3d 721,
723 (Fla. 5th DCA 2018) (reversing sentence where trial court
mistakenly believed it had no discretion in sentencing
defendant as a violent career criminal).
we find the sentencing court committed fundamental error.
See Maddox v. State, 760 So.2d 89, 99-100 (Fla.
2000) (holding fundamental error occurs in sentencing when
"the interests of justice will not be served if the
error remains uncorrected"); Lewellen v. State,
682 So.2d 186, 188 (Fla. 2d DCA 1996) (finding fundamental
error where trial court elevated the degree of the petit
theft conviction without regard to any prior conviction,
misclassifying the offense as first-degree, as opposed to a
second-degree misdemeanor). Upon resentencing, we instruct
the sentencing court to refrain from considering improper
factors, including without limitation, assertions of
innocence and refusal to admit guilt, truthfulness of
testimony, or lack of remorse. See Williams v.
State, 164 So.3d 739, 740-41 (Fla. 2d DCA 2015).
and remanded for resentencing before a different judge, with
instructions; affirmed in all other respects without comment.
NORTHCUTT and KELLY, JJ., concur.