              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.
                                            -2-
              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




                                           -3-
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.




                                            -4-
