NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RICHARD WILLIAMS, )
)
Appellant, )
)
v. ) Case No. 2D17-3959
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed November 6, 2019.
Appeal from the Circuit Court for Manatee
County; Susan B. Maulucci, Judge.
J. Jervis Wise of Brunvand Wise, P.A.,
Clearwater, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Michael Schaub,
Assistant Attorney General, Tampa, for
Appellee.
SMITH, Judge.
Richard 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.
"Second-degree 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."
The error here began during sentencing when the trial court was first
misdirected by the State's representation1 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.
1There is nothing in the record to indicate that this representation was
anything other than a mistake.
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The 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).
Accordingly, 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
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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).
Reversed and remanded for resentencing before a different judge, with
instructions; affirmed in all other respects without comment.
NORTHCUTT and KELLY, JJ., concur.
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