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 
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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.