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505 So. 2d 9

505 So.2d 9

12 Fla.L.Weekly 836

Docket No. BK-401.

Kiser v. State

David K. KISER, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided March 24, 1987.

Rehearing Denied April 23, 1987.

District Court of Appeal of Florida · decided 1987-03-24

Cited by 6 later decisions — most recently October 1994

6 state decisions

Key passage — most relied on by later courts

“In Witt v. State, 387 So.2d 922 (Fla. 1980), cert. denied, 449 U.S. 1067 , 101 S.Ct. 796 , 66 L.Ed.2d 612 (1980), the Florida Supreme Court held that only `fundamental and constitutional law changes which cast serious doubt on the veracity or integrity of the original trial proceeding' will be grounds for allowing post-conviction relief. 387 So.2d at 929 . The disapproval of a previously valid reason for departure from the sentencing guidelines is not such a change. Ardley v. State, 491 So.2d 1259 (Fla. 1st DCA 1986).”

quoted by 1 later decision, including 507 So. 2d 1185 - McCuiston v. State

Relies on 475 So. 2d 1218 - Hendrix v. State · Witt v. State · Hance v. Georgia

Good law ✅— No negative treatment on recordhow we know

Decided 1987-03-24

View the full empirical analysis of this case →

¶1David K. Kiser, pro se.

¶2Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for appellee.

¶3ZEHMER, Judge.

¶4Kiser appeals a trial court order denying his motion for post conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm.

¶5Appellant was convicted of burglary of a dwelling in 1983. The guidelines recommended sentence was three years in prison; appellant was sentenced to ten years in prison. The judge based his departure primarily on appellant's long prior record, a valid reason for departure at that time. This court affirmed appellant's sentence. Kiser v. State,455 So.2d 1071 (Fla. 1st DCA 1984). After our opinion in Kiser's original appeal, the Florida Supreme Court decided Hendrix v. State,475 So.2d 1218 (Fla. 1985), holding that a prior criminal record is an impermissible basis for departure. Appellant filed this 3.850 motion arguing that this change in the law requires that his sentence be reversed. The trial judge denied the motion on the ground that this issue had already been decided in appellant's original appeal.

¶6In Witt v. State,387 So.2d 922 (Fla. 1980), cert. denied,449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), the Florida Supreme Court held that only "fundamental and constitutional law changes which cast serious doubt on the veracity or integrity of the original trial proceeding" will be grounds for allowing post-conviction relief. 387 So.2d at 929. The disapproval of a previously valid reason for departure from the sentencing guidelines is not such a change. Ardley v. State, 491 So.2d 1259 *10 (Fla. 1st DCA 1986). Accordingly, we affirm the denial of Kiser's rule 3.850 motion.

¶7AFFIRMED.

¶8SMITH and SHIVERS, JJ., concur.

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