Supreme Court of Florida

____________

No. SC2023-0079

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JOHN SEXTON,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

September 12, 2024

COURIEL, J.

John Sexton, whose conviction we upheld in 2017, appeals the

sentence of death he received after a second penalty phase 

proceeding on remand. Sexton raises eight issues that he contends 

entitle him to a third penalty phase proceeding. We have 

jurisdiction. See art. V, § 3(b)(1), Fla. Const. Because each claim 

fails, we affirm Sexton’s sentence. 
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I

A jury found Sexton guilty of the first-degree murder of Ann 

Parlato, a 94-year-old woman. Sexton knew Parlato because he had 

cut her lawn. He murdered her in her home, where she lived alone. 

As we previously recounted, the victim’s “face had been bludgeoned 

to the point of being unrecognizable”; her right breast was excised 

and then covered with a prosthetic breast pad, which she owned 

due to a mastectomy; and her naked body, which had sustained 

burns from a purse placed between her legs and set on fire, was left 

partially covered with a white sheet. See Sexton v. State, 221 So. 3d 

547, 550 (Fla. 2017). “The bones in her face were crushed”; her 

brain was “bleeding and bruised”; and her spine was dislocated. Id.

at 558-59. These are only some of the severe traumas Parlato 

sustained. Id. at 550-51.

By a vote of 10-2, the jury recommended the death penalty. 

This Court upheld the conviction but remanded under Hurst v. 

Florida, 577 U.S. 92 (2016), for a new penalty phase trial. Sexton, 

221 So. 3d at 559. On remand, Sexton waived his right to a jury. 

The penalty phase proceeded as a bench trial before Judge Mary 

Handsel, who had presided over Sexton’s initial guilt and penalty 
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phases. The court sentenced Sexton to death on January 12, 2023. 

This appeal concerns whether the court erred in its resentencing. 

II

In December 2018, over a year after we remanded this case, 

Sexton moved for Judge Handsel’s recusal. According to Sexton, 

recusal became necessary after a pretrial conference during which 

the following colloquy occurred: 

[COUNSEL FOR THE STATE]: And, of course, we object 

to these motions. What this death penalty thing has 

become, based on some unfortunate and I would say 

unconstitutional decisions by some higher courts is just 

a racket by which we see the same three or four – and I’m 

using air quotes here – experts to come in and fleece the 

public with their supposed services so that they can 

opine to a variety of things . . . that have little to no 

bearing on the ultimate issues in the case. So that is the 

State’s position.

[COUNSEL FOR SEXTON]: And perhaps consistent with 

the State’s position, we should just go out to the nearest 

tree and hang Mr. Sexton.

THE COURT: Counsel, stop. If that’s what you’re going 

to do, we’re just going to stop.

[COUNSEL FOR SEXTON]: Well, Judge –

THE COURT: No. Stop.

[COUNSEL FOR SEXTON]: You allowed him to belittle the 

Supreme Court of Florida and the Supreme Court of the 

United States.
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THE COURT: I did not. Listen, you want to use big 

words, that’s fine. You want to talk about a tree and a 

rope, we’re going to be done. Are we clear about that?

[COUNSEL FOR SEXTON]: Yes, ma’am.

THE COURT: We’re not playing these games in my 

courtroom. I don’t know where you’re from, but you use 

words like that in my courtroom again, I will hold you in 

contempt. Are we clear? I am not going to have you 

playing these games. What he’s trying to –

[COUNSEL FOR SEXTON]: I’m not playing games.

THE COURT: You are playing games.

[COUNSEL FOR SEXTON]: No, I’m not, ma’am.

. . . .

THE COURT: Yes, you are.

[COUNSEL FOR SEXTON]: That’s my interpretation.

THE COURT: I don’t care what – Counsel, stop. I’m 

telling you right now, stop.

Based on that exchange, Sexton’s counsel indicated he intended “to 

file a motion to disqualify this Court.” He asked the court to order 

the transcript of the exchange above; the judge replied counsel was 

responsible for obtaining it. In addition, the judge stated: “There’s 

nothing that I’ve said or done that, as far as I can see, would lead 

me to recuse myself, but I haven’t seen it in writing and so I’ll wait 
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for that.” Discussing these events in his recusal motion, Sexton 

argued the judge had berated his counsel without admonishing the 

State’s counsel for his improper comments. 

Judge Handsel denied the recusal motion. Nonetheless, she 

delegated defense funding decisions to then Chief Judge Anthony

Rondolino of the Sixth Judicial Circuit. Judge Rondolino granted 

some funding requests and denied others. For example, he denied 

Sexton’s request for funding for the mitigation specialist and one of 

Sexton’s attorneys to travel to Oregon, and for the specialist also to 

travel to Arkansas, to interview Sexton’s family. The court reasoned 

it already had “authorized nearly $60,000 for a variety of experts, 

investigations, mitigation and associated expenses.” In addition, it 

found counsel did not justify why both professionals—Sexton’s 

attorney and the mitigation specialist—needed to travel to Oregon. 

Further, several out-of-state witnesses were interviewed 

telephonically. Ultimately, the court concluded there was “simply 

no adequate basis for the requested funds” and “no evidence to 

support a finding of reasonableness and necessity.” However, the 

court separately granted Sexton’s request for the mitigation 

specialist to travel to Texas to interview one of Sexton’s sisters, 
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who—unlike his other sister—had not spoken about Sexton’s 

childhood abuse on the phone. 

In addition, Judge Rondolino denied Sexton’s motion for 

funding to visit a doctor to prescribe a PET scan; for the PET scan 

itself; and for a doctor in California, Dr. Joseph Wu, to testify via 

video about the PET scan. He reasoned that this Court, in resolving 

Sexton’s initial appeal, had recognized that the testimony of two 

doctors—who had not seen a brain scan—supported the mitigating 

circumstances related to Sexton’s substantially impaired capacity to 

appreciate the criminality of his conduct or to conform his conduct 

to the requirements of the law. Because of the testimony of those 

expert witnesses, the already-granted funding for mental health 

experts, and the absence of facts showing a PET scan was 

reasonable and necessary to the defense, the court denied the 

request for additional funding. It later denied requests to 

reconsider that ruling. 

Before the penalty phase proceeded, Sexton’s counsel filed a 

“Notice to Trial Court,” in which Sexton waived his right to a jury 

trial and stated he would “only permit counsel to present selective 

mitigation.” Sexton reiterated this request at the sentencing 
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hearing. His counsel expressed concern with Sexton’s decision to 

put on “super soft mitigation,” and stated that counsel “ha[d] to be 

able to present all of the mitigation that we think is warranted.” 

Initially, the court asked Sexton’s counsel to submit a sealed 

memorandum at the conclusion of the case, listing all mitigation 

evidence and indicating what Sexton had instructed his attorneys 

not to present. The court would not consider the memorandum in 

its sentencing decision; rather, it stated that the memorandum

would serve to clarify the record for appellate purposes only. The 

next day, the court changed its position. Rather than review the 

requested memorandum, the court would call Kathleen O’Shea, the 

defendant’s mitigation specialist, to testify about mitigation. Sexton 

personally objected, contending that mitigation “is concessionary by 

nature” and that the presentation of mitigation evidence that he did 

not approve would go towards “conceding the guilt of the crime that 

[he] did not commit.” The court, nonetheless, called O’Shea as a 

witness.

O’Shea testified about witnesses who would have been 

available to testify had Sexton not opted for selective mitigation. 

For example, his former friend, if called as a witness, would have 
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testified about their unstable friendship, Sexton’s mental health 

and drinking, and Sexton’s loss of custody over his children. 

O’Shea also testified about the additional testimony that certain 

witnesses whom Sexton had called would have given if Sexton had 

not limited mitigation. For example, one of Sexton’s sisters—whose 

testimony had been “limited” at his request—would have testified 

about the abuse Sexton faced and his dysfunctional upbringing. 

Sexton’s longtime girlfriend, had she testified more “freely,” might

have testified about Sexton’s drinking and loss of custody over his 

children. Sexton’s daughter, too, would have testified about his 

explosive episodes. 

O’Shea also identified medical professionals who might have 

testified. Dr. Robert Ouaou, for example, would have testified about

Sexton’s IQ score compared to his scores in memory and processing 

speed, which were potentially lower because of long-term exposure 

to alcohol or to chemicals during his work in construction. Dr. 

Michael Maher, a psychiatrist, would have expanded on Sexton’s 

cognitive impairments. And Dr. Heather Holmes, a psychologist, 

among other things would have diagnosed Sexton with bipolar 

disorder and described his history of psychiatric hospitalizations. 
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According to O’Shea, Dr. Holmes “would not have opined 

specifically about the crime, as Mr. Sexton has always maintained 

his innocence, but she could have said that when he drinks, 

because of the bipolar disorder and the other stressors, he does 

have these episodes that include impulsive . . . lashing out 

behaviors.” 

Also during the sentencing hearing, the State moved the trial 

court to take judicial notice of the original trial testimony and 

exhibits. Sexton’s counsel objected on the grounds that

resentencing is a de novo proceeding that “starts fresh” and that the 

transcripts constitute inadmissible hearsay. The court overruled 

these objections.1 First, it reasoned, any hearsay objection would 

have been determined during the original trial—and this Court had 

upheld the verdict of guilt reached at the conclusion of that trial. 

Second, taking judicial notice was consistent with a fresh start, as 

the State would need to refer the court to a particular transcript, 

witness, or piece of evidence. 

1. Sexton himself had “[n]o objection” to the court “reviewing 

the transcript of each witness as it previously stood during the 

original trial.” 
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Based on this reasoning, the court took “judicial notice of the 

prior trial transcript, including all cross-examination, including all 

objections, and all previous rulings.” Defense counsel later raised 

with the court that the State had rested its case without identifying 

the specific transcripts it sought to introduce into evidence. The 

court dismissed the objection, noting: “We’re never rested. They 

can reopen their case.” 

The trial court sentenced Sexton to death on January 12, 

2023. It explained in its sentencing order: “This Court has taken 

judicial notice of the entire court file, which includes transcripts of 

testimony from the original trial held on April 15, 2013[,] through 

May 7, 2013, and has considered such testimony.” In addition, the 

court “reviewed its own extensive trial notes taken during all 

proceedings,” including from the original guilt and penalty phases. 

The court also discussed the existence of three aggravating 

circumstances, each of which it gave great weight: the victim of the 

capital felony was particularly vulnerable due to her advanced age

or disability (§ 921.141(6)(m), Fla. Stat. (2022)); the capital felony 

was committed while the defendant was engaged, or was an 

accomplice, in the commission of, or an attempt to commit, or flight 
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after committing or attempting to commit a sexual battery

(§ 921.141(6)(d), Fla. Stat.); and the capital felony was especially 

heinous, atrocious, or cruel (HAC) (§ 921.141(6)(h), Fla. Stat.). In 

addition, the court gave three mitigating factors little weight: the 

capital felony was committed while the defendant was under the 

influence of extreme mental or emotional disturbance; the capacity 

of the defendant to appreciate the criminality of his conduct, or to 

conform his conduct to the requirements of the law, was 

substantially impaired; and the defendant is amenable to 

rehabilitation and a productive life in prison. It gave moderate 

weight to a final mitigating factor—namely, that Sexton had no 

significant history of prior criminal activity. 

After recounting the details of the murder and weighing the 

aggravating and mitigating factors, the court concluded: “I find that 

beyond a reasonable doubt . . . the aggravating factors substantially 

outweigh the mitigating factors. This Court is compelled by law to 

impose the ultimate penalty in this case.” 

III

Sexton argues that eight issues require us to set aside his 

sentence and remand for a third penalty phase. None do. 
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A

Sexton first argues that the trial court erred by denying his

requests for funds for a PET scan and any review of that scan, and 

for travel to Oregon and Arkansas. He contends these denials 

violated his rights to mitigation, effective assistance of counsel, due 

process, and equal protection, as well as the mandate of Ake v. 

Oklahoma, 470 U.S. 68 (1985).2 We disagree. 

A trial court’s decision to deny a motion for funds for testing 

will be upheld absent an abuse of discretion. Rogers v. State, 783 

So. 2d 980, 998 (Fla. 2001). In evaluating whether a court has 

abused its discretion in denying funds for testing, we consider 

whether the defendant (1) made a particularized showing of need; 

and (2) was prejudiced by the court’s denial. Id. at 999. Sexton has 

failed to show that the court abused its discretion in denying his 

testing requests. 

2. Ake concerned under what conditions the State must 

“provide an indigent defendant with access to competent psychiatric 

assistance”—ultimately requiring, where a defendant’s sanity is 

shown to be “a significant factor at trial,” that the State “assure the 

defendant access to a competent psychiatrist who will conduct an 

appropriate examination and assist in evaluation, preparation, and 

presentation of the defense.” 470 U.S. at 77, 83.
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Sexton did not make a particularized showing of need for a 

PET scan—which is “the polestar for whether any diagnostic test 

should be authorized by the trial court.” Id. His motion asserted 

that, “[b]ased on the examination of doctors previously appointed 

and the Defendant’s neurological issues, it has been recommended 

that the Defendant have a PET scan and an MRI scan of his brain.” 

He provided little support at the hearing, where counsel argued that 

the brain scan was “important” because the “killing [was] 

horrendous, almost indefensible.” This is insufficient to establish a 

particularized need for testing—especially since, at the initial 

sentencing hearing, two expert witnesses testified on brain damage 

without access to a brain scan. The court had relied on that 

testimony to establish the statutory mitigating factor that Sexton’s 

capacity to appreciate the criminality of his conduct, or to conform 

his conduct to the requirements of the law, was substantially 

impaired. See Sexton, 221 So. 3d at 560 (Pariente, J., concurring) 

(stating that the defense presented testimony to support this 

mitigating circumstance and that the court “found that this 

statutory mitigating circumstance was established but assigned it 

little weight”).
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Nor did Sexton show prejudice. On resentencing, again 

without a brain scan, the court concluded that Sexton’s capacity to 

appreciate the criminality of his conduct, or to conform his conduct 

to the requirements of the law, was substantially impaired. In its 

sentencing order, the court recognized testimony from two doctors 

that Sexton’s repeated exposure to solvents while working as a 

waterproofer “could have caused [a] detrimental effect on the frontal 

lobe of the Defendant’s brain” and that, since the brain damage is 

“progressive,” Sexton’s impulsiveness could increase over time. It 

also found that Sexton had a history of alcoholism and mental 

illness. Thus—although it gave this factor little weight because of 

Sexton’s history of generally conforming his conduct to the 

requirements of the law—the court recognized this mitigating 

circumstance in its sentencing decision. Accordingly, the court did 

not abuse its discretion in denying requests for funding for a PET 

scan and analysis of that scan. See Rogers, 783 So. 2d at 1000 

(“[B]ecause the defense was able to provide substantial evidence of 

[the defendant’s] mental health by means other than a PETScan . . . and because the trial court found mitigating 

circumstances related to his mental condition, including a statutory 
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mitigating circumstance, we do not find that [the defendant] was 

prejudiced by the denial of the PET-Scan.”).

Next, we reject Sexton’s argument about travel expenses. 

Judge Rondolino, to whom Judge Handsel referred requests for 

travel funding, did in fact authorize payment for Sexton’s mitigation 

specialist to interview one of Sexton’s sisters in Texas; the other was 

interviewed by phone. Judge Rondolino explained his conclusion 

that no evidence supported the reasonableness and necessity of the 

additional funds Sexton requested, given that the people with whom 

the defense wanted to speak could be reached by phone. This

counts as a determination on the record that Sexton had failed to 

make a particularized showing of need for the travel funds. And on 

these facts, we detect no prejudice to Sexton from the court’s denial 

of the additional travel funds he had sought. See id. at 999-1000; 

see also San Martin v. State, 705 So. 2d 1337, 1347 (Fla. 1997).

For similar reasons, we reject Sexton’s assertion that all these

funding requests were necessary for his counsel to be effective, and 

that the trial court violated his due process and equal protection 

rights. Sexton argues the court “substituted its judgment for that 

of defense counsel in determining that travel to interview witnesses 
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and neurological testing was unnecessary.” But, by statute, the 

“court retains primary authority and responsibility for determining 

the reasonableness of” costs like the ones at issue. § 27.5304(3), 

Fla. Stat. (2022). And while Sexton asserts the court’s denials were 

“only because [Sexton] fell into th[e] special class of indigent 

defendants” who were appointed private counsel, that speculative 

argument lacks support in the record, which shows that Sexton was 

denied the additional funding requests after a careful determination 

that they were unnecessary—not because of the nature of his

representation.3

Overall, the record reflects that the trial court carefully 

analyzed Sexton’s funding requests, as required by statute. When 

appropriate, it granted additional funding. The record does not 

indicate that the court treated Sexton differently because of the 

3. For example, as to one request for additional funding for 

the mitigation specialist to travel out of state, the court found “no 

evidence to support a finding of reasonableness and necessity” and 

“no adequate basis for the requested funds.” Similarly, as to

Sexton’s request for funding for a brain scan, the court 

“consider[ed] what is reasonable and necessary for the Defense to 

present the matters that the Defense needs to present,” and 

concluded the funding was unnecessary given the prior testimony of 

expert witnesses and the funds provided for mental health experts. 
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nature of his representation as an indigent defendant with courtappointed private counsel. His argument that he was denied due 

process and equal protection on that basis fails.

Sexton also argues the denial of funding violated the command 

of Ake v. Oklahoma. Not so. Sexton had access to a “competent 

psychiatrist [to] conduct an appropriate examination and assist in 

evaluation, preparation, and presentation of the defense.” Ake, 470 

U.S. at 83; see also Middleton v. State, 220 So. 3d 1152, 1176 (Fla. 

2017) (finding defendant’s reliance on Ake misplaced in part where 

he was evaluated by several doctors). He claims he was denied 

“access to the raw materials integral to the building of an effective 

defense,” Ake, 470 U.S. at 77—but, as noted, we discern no abuse 

of discretion in the trial court’s funding decisions. To the extent 

Sexton asserts he should have been granted funding for Dr. Wu, 

specifically, to conduct the brain scan, no defendant has a right to 

the work of a specific mental health expert. Walls v. State, 926 So. 

2d 1156, 1177 (Fla. 2006).

B

Sexton next argues the trial court violated his Sixth 

Amendment right to counsel and to control his defense by calling 
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his defense mitigation specialist as a court witness. We agree the 

trial court erred in calling O’Shea, who was part of the defense 

team, as a witness over Sexton’s objection. But we find the error to 

have been harmless.4

Sexton cites McCoy v. Louisiana for the proposition that this 

kind of error is structural and not subject to harmless error review. 

584 U.S. 414, 427 (2018). But McCoy involved a defendant’s “right 

to insist that counsel refrain from admitting guilt, even when 

counsel’s experience[]-based view is that confessing guilt offers the 

defendant the best chance to avoid the death penalty.” Id. at 417.

Sexton’s guilt was not at issue in the proceeding below, his 

conviction having already been affirmed by this Court. The 

mitigating evidence presented dealt with Sexton’s bipolar disorder, 

excessive drinking, and explosive episodes of anger—most of which 

had been introduced into the record at his first sentencing 

proceeding—and not his guilt or innocence. And so, mindful that 

the trial court’s error must have been harmful to be reversible, we 

4. Sexton did not timely object to O’Shea’s testimony on 

attorney-client privilege or attorney work product grounds, so his 

arguments on that front are unpreserved for our review.
- 19 -

proceed. See § 924.33, Fla. Stat. (2022); see also Davis v. State, 

347 So. 3d 315, 324 (Fla. 2022) (describing “the plain language of 

section 924.33, Florida Statutes (2021), ‘which provides that 

harmless error analysis is applicable to all judgments’ ” (footnote 

omitted) (quoting State v. Schopp, 653 So. 2d 1016, 1020 (Fla. 

1995))); State v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986) (finding 

the “harmless error analysis . . . applicable to all judgments”).

It was error to call O’Shea as a court witness. O’Shea was not 

an independent, special counsel appointed by the trial court; she 

was a member of the defense team. Indeed, the trial judge 

recognized that “O’Shea is part of the Defense.” While the court 

could have chosen to order a presentence investigation report (PSI)

or considered mitigation from the original sentencing, it could not, 

against Sexton’s wishes, commandeer his mitigation expert and 

compel her to testify about mitigation during the penalty phase. 

But this error does not require reversal, because “there is no 

reasonable possibility that the error contributed to the death 

sentence.” Gaskin v. State, 361 So. 3d 300, 309 (Fla. 2023). 

Although the court recounted O’Shea’s testimony in its sentencing 

order, it did not rely on her testimony—or even cite it—when 
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analyzing the specific mitigating factors that defense counsel was 

pursuing. Nor did the court consider O’Shea’s testimony when 

establishing aggravating circumstances. Moreover, the trial court 

determined that Parlato’s murder was highly aggravated, and gave 

that and two other aggravating factors great weight. See Wells v. 

State, 364 So. 3d 1005, 1014 (Fla. 2023) (finding harmless error 

where the court rejected statutory mitigators); see also Sparre v. 

State, 164 So. 3d 1183, 1197 (Fla. 2015) (finding the court’s 

declination to call its own mitigation witnesses was not reversible 

error given “the two very weighty aggravators”).5 

C

Sexton also argues that the trial court violated Florida law and 

his constitutional rights by failing to conduct a de novo penalty 

phase; taking judicial notice of the prior proceedings; reopening the 

5. Because Sexton did not waive all mitigation, the trial court 

did not confront the command of Muhammad v. State, 782 So. 2d 

343 (Fla. 2001), to order the preparation of a PSI, consider all 

mitigating evidence in the record, and, in its discretion, “call 

persons with mitigating evidence as its own witnesses” to present 

mitigation where the PSI and accompanying records indicate the 

probability of significant mitigation. Id. at 363-64; see also

Marquardt v. State, 156 So. 3d 464, 489-90 (Fla. 2015) (receding in 

part from Muhammad).
- 21 -

case to assist the State; and relying on facts not in evidence. 

Sexton is not entitled to relief on these claims. 

By statute, the trial court may judicially notice “[r]ecords of 

any court of this state.” See § 90.202(6), Fla. Stat. (2022). “Taking 

judicial notice of such matters is purely a matter of judicial 

discretion.” Schwab v. State, 969 So. 2d 318, 322 (Fla. 2007). 

Here, in doing so, the court did not abuse its discretion. Indeed, it 

was statutorily required to “consider[] the records” of the prior trial 

proceedings. See § 921.141(4), Fla. Stat. In addition, although 

“taking judicial notice of an entire prior proceeding . . . does not 

allow the substance of the underlying materials to be entered into 

evidence without compliance with the rules of evidence,” Dufour v. 

State, 69 So. 3d 235, 254 (Fla. 2011), the trial court had previously 

resolved admissibility challenges during the initial proceedings and, 

again, we had already upheld Sexton’s conviction. 

Sexton also argues the trial court improperly reviewed the 

transcript from the original penalty phase, and that its having 

taken judicial notice of those proceedings transformed the 

resentencing proceeding into one that failed to meet the de novo 

resentencing requirement. But the court understood its obligation 
- 22 -

to conduct a de novo review; expressed an open mind about the 

case on remand; did not limit itself to the transcripts from the 

original proceedings in determining Sexton’s sentence; and did not 

rely on such transcripts to predict or mandate any particular result 

in the resentencing. We discern no harmful error.

D

Sexton says it was error for the trial court to have denied his 

motion to disqualify. He contends the pre-trial conference—during 

which the court raised the prospect of holding his counsel in 

contempt if he continued using certain words—created an objective, 

well-founded fear of bias and impartiality. We reject this.6 

6. The State is correct that Sexton previously sought review of 

this issue by filing a petition for writ of prohibition in the Second 

District Court of Appeal, which was denied in an unelaborated 

order. Sexton v. State, 270 So. 3d 1219 (Fla. 2d DCA 2019). The 

State further acknowledges Topps v. State, 865 So. 2d 1253 (Fla. 

2004), where we held: 

[U]nelaborated orders denying relief in connection with 

all extraordinary writ petitions issued by Florida courts 

shall not be deemed to be decisions on the merits which 

would later bar the litigant from presenting the issue 

under the doctrines of res judicata or collateral estoppel 

unless there is a citation to authority or other statement 

that clearly shows that the issue was considered by the 

court on the merits and relief was denied.
- 23 -

When presented with a motion to disqualify, a trial judge is 

permitted to “determine only the legal sufficiency of the motion 

and . . . not pass on the truth of the facts alleged.” Fla. R. Gen. 

Prac. & Jud. Admin. 2.330(h). In determining legal sufficiency, the 

Court considers “whether the alleged facts would create in a 

reasonably prudent person a well-founded fear of not receiving a 

fair and impartial trial.” Gregory v. State, 118 So. 3d 770, 778 (Fla. 

2013) (quoting Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 

2005)). The fear must be objectively reasonable. Id. Further, “the 

context of the hearing . . . as reflected in the record [is] relevant to 

understanding whether a movant has a well-founded fear of judicial 

bias.” Wall v. State, 238 So. 3d 127, 143 (Fla. 2018) (affirming 

motion to disqualify as legally insufficient).

Sexton’s allegations that he feared an unfair and impartial 

trial are not objectively reasonable. Sexton’s counsel stated, 

Id. at 1258. Under Topps, the order below does not constitute a 

decision on the merits precluding our review. Despite such

precedent, the State argues Sexton “should not be able to raise the 

exact same issue in an extraordinary writ and then again during his 

direct appeal.” We decline to overlook or overrule Topps and, 

therefore, proceed to the merits of this claim. 
- 24 -

“[P]erhaps consistent with the State’s position, we should just go 

out to the nearest tree and hang Mr. Sexton.” The trial court 

responded by directing counsel to “stop” and saying, “[Y]ou use 

words like that in my courtroom again, I will hold you in contempt.” 

This response, directed at counsel’s choice of words, does not 

express bias against Sexton or his counsel. 

Sexton also contends the judge became “adversarial” when 

alerted to defendant’s impending motion to recuse. The record 

supplies no support for this contention. Nor does the judge’s 

warning against “playing games” constitute grounds for recusal. 

See Correll v. State, 698 So. 2d 522, 524-25 (Fla. 1997) (trial judge’s 

comments about a “delaying tactic in death penalty cases” was 

insufficient to require disqualification). In addition, while Sexton 

questions whether he should have had to pay for an expedited

transcript, any error arising from that fact would be harmless. 

Sexton was not precluded from moving to disqualify and, moreover, 

the effect of the denial of the disqualification motion had no 

reasonable possibility of contributing to Sexton’s sentence, given 

the aggravating circumstances. See DiGuilio, 491 So. 2d at 1138
- 25 -

(error is harmless where “there is no reasonable possibility that the 

error contributed to the conviction”). 

E

Sexton contends the trial court violated his Fifth Amendment 

rights by commenting negatively on his silence in its sentencing 

order when it stated, “The Defendant has denied his involvement in 

the death of Mrs. Parlato, so there is no way for the State to even 

prove that a sexual battery occurred while the victim was alert 

unless the Defendant testifies.”7 

This statement of fact, in the context of the court’s explanation 

of its conclusions, is no comment on silence. Cf. Marston v. State, 

136 So. 3d 563, 570-72 (Fla. 2014) (finding harm where, during voir 

dire, the prosecutor “commented continuously” on, gave “extensive 

7. The State argues Sexton waived this issue because he did 

not object during the sentencing hearing when the judge read the 

sentencing order and did not file a motion challenging his sentence 

or the order’s phrasing. However, the State cites no case in which 

we have held that a capital defendant who does not

contemporaneously object to a court’s oral pronouncement of a 

sentencing order waives his or her right to directly appeal errors in

the sentencing order. In addition, defendants need not move to 

correct a sentencing error where “the death sentence has been 

imposed and direct appeal jurisdiction is in the supreme court.” 

See Fla. R. Crim. P. 3.800(b). 
- 26 -

remarks” about, and “demeaned” the defendant’s constitutional 

right to remain silent). In any event, “[c]omments on a defendant’s 

silence are one class of errors subject to the harmless error 

analysis.” Davis, 347 So. 3d at 323-24. Harmless error review also 

applies, more generally, to alleged errors in a sentencing order. 

Gonzalez v. State, 136 So. 3d 1125, 1159-60 (Fla. 2014) (finding

harmless error in a “minimally defective” sentencing order). “The 

focus [of DiGuilio’s harmless error test] is on the effect of the error 

on the trier-of-fact.” DiGuilio, 491 So. 2d at 1139. It requires “not 

only a close examination of the permissible evidence on which the 

jury could have legitimately relied, but an even closer examination 

of the impermissible evidence which might have possibly influenced 

the jury verdict.” Id. at 1138. The trial court’s sentencing order, 

following a bench trial, had no influence over a jury. And we find

no other basis for harmful error in this portion of the order.

F

Sexton argues the trial court’s sentencing order failed to 

meaningfully consider mitigating evidence, including testimony 

from three of his witnesses about his positive traits. But the court 

did not err. As Sexton concedes, his trial counsel did not “spell[]
- 27 -

out” the positive mitigating testimony from these witnesses for 

consideration. See Ault v. State, 53 So. 3d 175, 191 (Fla. 2010)

(finding the trial court did not err in failing to address a 

nonstatutory mitigating circumstance the defendant did not raise). 

Even if the court had found mitigating circumstances related to the 

testimony of such witnesses, the aggravating factors were proven 

conclusively, and the court did not abuse its discretion in assigning 

them great weight. See Boyd v. State, 910 So. 2d 167, 192-93 (Fla. 

2005) (trial court did not err in assessing mitigating factors and, 

regardless, any error was harmless where there were “two weighty 

aggravators”). 

G

The sentencing order concludes with this statement: “I find 

that beyond a reasonable doubt . . . the aggravating factors 

substantially outweigh the mitigating factors. This Court is 

compelled by law to impose the ultimate penalty in this case.” 

Sexton argues that these words show that the trial court 

misunderstood its ability to impose a sentence of life imprisonment. 

We disagree. While other words might have been better, the 

sentencing order—and indeed the entire proceeding at issue, which 
- 28 -

occurred on remand after a prior sentence of death—necessarily 

reflects the court’s awareness that a sentence of life imprisonment 

was within its discretion. The sentencing order cites section 

921.141, which provides, in relevant part, that, “after considering 

all aggravating factors and mitigating circumstances, [the court] 

may impose a sentence of life imprisonment without the possibility 

of parole or a sentence of death.” § 921.141(3)(b), Fla. Stat. 

(emphasis added). The sentencing order then devotes several pages 

to each mitigating and aggravating factor. 

The court also stated it “reviewed all relevant decisions issued 

by the Supreme Court of Florida and the United States Supreme 

Court concerning a judge’s responsibility whenever the imposition 

of the death penalty is considered.” And the judge had, at other 

times in the sentencing proceedings, recognized her discretion. For 

example, she stated: “We all know what the outcome was in the first 

sentencing. I can’t tell you that’s going to be the same. I have no 

idea. We’re going to redo this whole thing.” As a whole, the 

sentencing order and sentencing proceedings show the trial court 

understood it could consider alternatives to a death sentence. 
- 29 -

H

Sexton’s final argument—that Florida’s capital sentencing 

scheme fails to sufficiently reduce the risk of an arbitrary and 

capricious death sentence in violation of the Eighth and Fourteenth 

Amendments—is foreclosed by precedent. In Wells v. State, the 

Court rejected the argument that the number of aggravating factors 

in Florida’s death penalty statute, combined with the holding in 

Lawrence v. State, 308 So. 3d 544 (Fla. 2020), violates the Eighth 

Amendment. See 364 So. 3d at 1015; see also Gordon v. State, 350 

So. 3d 25, 36 (Fla. 2022) (reaffirming Lawrence). The Court has 

similarly “repeatedly rejected the argument that the death-penalty 

statute violates the Eighth Amendment because it fails to 

sufficiently narrow the class of murderers eligible for the death 

penalty.” Wells, 364 So. 3d at 1015 (collecting cases). Sexton 

provides no reason to recede from such precedent. 
- 30 -

IV

We affirm Sexton’s sentence of death.8

It is so ordered.

MUÑIZ, C.J., and CANADY, GROSSHANS, FRANCIS, and 

SASSO, JJ., concur.

LABARGA, J., concurs specially with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.

LABARGA, J., specially concurring.

I agree with the Court’s conclusion in issue III(D) that the trial 

court did not err in denying Sexton’s motion to disqualify. The trial 

court’s response to defense counsel’s improper comment was 

insufficient to demonstrate the requisite bias for granting a motion 

to disqualify. However, I must note that considering the trial 

court’s strong response to defense counsel’s comment, the court did 

not offer a sufficient response to improper prosecutorial comments 

that preceded those made by defense counsel.

The trial court and counsel were discussing a possible delay in 

resentencing Sexton, and the record reveals that the prosecutor was 

8. Previously, we determined that competent, substantial 

evidence supports Sexton’s conviction. See Sexton, 221 So. 3d at 

558-59. 
- 31 -

frustrated with this prospect. Just before the comment from 

defense counsel that triggered a strong response from the trial 

court, the prosecutor said the following:

And, of course, we object to these motions. What 

this death penalty thing has become, based on some 

unfortunate and I would say unconstitutional decisions 

by some higher courts is just a racket by which we see 

the same three or four—and I’m using air quotes here—

experts to come in and fleece the public with their

supposed services so that they can opine to a variety of 

things . . . that have little to no bearing on the ultimate 

issues in the case.

So that is the State’s position.

Apparently, these comments were not as inflammatory to the 

trial court as those which followed by defense counsel. However, 

referring to certain court proceedings as “a racket,” questioning the 

legitimacy of experts, and accusing those experts of “fleec[ing] the 

public”—in a death penalty case, no less—were also deserving of the 

trial court’s rebuke.

An Appeal from the Circuit Court in and for Pasco County,

Mary M. Handsel, Judge

Case No. 512010CF006284CFAXWS

Howard L. “Rex” Dimmig, II, Public Defender, and Karen M. Kinney, 

Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida,

for Appellant
- 32 -

Ashley Moody, Attorney General, Tallahassee, Florida, and 

Christina Z. Pacheco, Senior Assistant Attorney General, Tampa, 

Florida,

for Appellee