John Sexton v. State of Florida

Supreme Court of Florida
____________

No. SC2023-0079
____________

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.
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

-2-
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.

-3-
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

-4-
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,

-5-
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

-6-
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

-7-
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.

-8-
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.”

-9-
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.

- 11 -
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.

- 12 -
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”).

- 13 -
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 PET-

Scan . . . and because the trial court found mitigating

circumstances related to his mental condition, including a statutory

- 14 -
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

- 15 -
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.

- 16 -
nature of his representation as an indigent defendant with court-

appointed 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

- 17 -
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.

- 18 -
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

- 19 -
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).

- 20 -
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

- 21 -
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.

- 22 -
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.

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“[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

- 24 -
(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).

- 25 -
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[]

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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

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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.

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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.

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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.

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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

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Ashley Moody, Attorney General, Tallahassee, Florida, and
Christina Z. Pacheco, Senior Assistant Attorney General, Tampa,
Florida,

for Appellee

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