In Martinez v. State, 38 Fla. L. Weekly D2250d (Fla. 1st DCA 2013), Martinez petitioned for a writ of habeas corpus contending that he received ineffective assistance of counsel on direct appeal of his sentence for attempted 2nd-degree murder.
Martinez put forth that during his sentencing hearing, the trial court relied on purported facts not proven (or even at issue at trial — and not established otherwise), thereby denying him due process.
The trial court’s incorrect statement that there existed testimonial evidence that drugs were involved in the offense indicated that the court was considering unsubstantiated allegations in its sentencing decision, and the state failed to demonstrate that this improper consideration played no part in the sentence imposed.
The First District Court of Appeal stated the trial court’s consideration of the unsubstantiated factual claim undermined confidence in the fairness, regularity, and propriety of his sentence and appellate counsel’s failure to raise the error on appeal was deficient performance that prejudiced Martinez. The Appellate Court then remanded for resentencing.