Hampton v. State, 178 So. 3d 921

Albert Hampton was convicted of conspiracy to traffic cocaine and sentenced to 20 years.
Hampton appealed; this court affirmed his conviction and sentence on direct appeal.
Hampton filed a habeas corpus petition alleging ineffective assistance of appellate counsel for failing to raise a sentencing error.
At sentencing, the trial judge stated he increased Hampton’s sentence because Hampton’s testimony conflicted with prior sworn testimony (apparent perjury).
No contemporaneous objection was made at sentencing; the habeas claim argues appellate counsel should have raised the trial judge’s improper consideration of alleged perjury.
The court found the judge’s comment improperly extended Hampton’s sentence and constituted fundamental error requiring resentencing by a different judge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective for not raising the trial court’s consideration of alleged perjury at sentencing	Hampton: appellate counsel was ineffective for failing to raise on appeal that the judge increased sentence because of alleged perjury	State: no contemporaneous objection at sentencing, so absent fundamental error counsel was not ineffective for omitting the issue on direct appeal	Court held appellate counsel was ineffective because the judge’s comment improperly increased the sentence, constituting fundamental error; sentence vacated and remand for resentencing before a different judge
Whether the trial judge’s statement that alleged perjury increased sentence is fundamental error	Hampton: the judge’s reliance on apparent perjury improperly extended incarceration and is fundamental error	State: error not preserved; only fundamental error can be raised without contemporaneous objection	Court held the consideration of alleged perjury improperly extended the sentence and was fundamental error requiring correction

Rutherford v. Moore, 774 So.2d 637 (Fla. 2000) (governs ineffective assistance of appellate counsel standard)
Cromartie v. State, 70 So.3d 559 (Fla. 2011) (guidance on fundamental sentencing error review)
Maddox v. State, 760 So.2d 89 (Fla. 2000) (explaining fundamental error as one that affects sentence length)
Smith v. State, 62 So.3d 698 (Fla. 2d DCA 2011) (sentencing remarks undermining due process can be fundamental error)
Ward v. State, 162 So.3d 679 (Fla. 4th DCA 2014) (judge’s comment that testimony was not credible constituted fundamental error; remand for resentencing)
City of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla. 1985) (improper use of trial testimony credibility at sentencing; perjury punishment must be via separate prosecution)
Hampton v. State, 135 So.3d 440 (Fla. 5th DCA 2014) (opinion affirming Hampton’s conviction and sentence on direct appeal)