DAVID K. KISER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A change in law disapproving a previously valid reason for sentencing departure does not warrant post-conviction relief.
Appellant was convicted of burglary and sentenced above guidelines, with his prior record cited as a reason for departure. The Florida Supreme Court l…
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ZEHMER, Judge.
Kiser appeals a trial court order denying his motion for post conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm.
Appellant 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.
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). Accordingly, we affirm the denial of Kiser’s rule 3.850 motion.
AFFIRMED.
SMITH and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)…valid a rea [*1041] son for departure previously recognized as valid under lower appellate decisions is not a fundamental change of law warranting rule 3.850 post-conviction relief for those persons whose sentences have become final. Kiser v. State, 505 So. 2d 9 (Fla. 1st DCA 1987); Ardley v. State, 491 So. 2d 1259 (Fla. 1st DCA 1986). If we appplied the rule of these cases in the present case, we would be required to hold that Hall is precluded from collaterally attacking the validity of his departure sent…
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McCUISTON v. State, 507 So. 2d 1185 (Fla. 2d DCA 1987)…endrix should be applied retroactively and requesting that his sentence be modified. The first district decided, however, that Hendrix did not apply retroactively, and affirmed the denial of Kiser’s motion for post-conviction relief. Kiser v. State, 505 So. 2d 9 (Fla. 1st DCA 1987). The court reasoned: 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…
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Therion Frierson v. State, 511 So. 2d 1016 (Fla. 5th DCA 1987)…REMANDED for re-sentencing. UPCHURCH, C.J., and SHARP, J., concur. . The rule provides: A court may at any time correct an illegal sentence imposed by it.... . But see McCuiston v. State, 12 FLW 1357 (Fla. 2nd DCA May 29, 1987); Kiser v. State, 505 So. 2d 9 (Fla. 1st DCA 1987). .Frierson was convicted of burglary of a structure, which is a third-degree felony carrying a statutory maximum penalty of five years’ imprisonment. §§ 810.02(3), 775.082(3)(d), Fla. Stat. (1985).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Witt v. State, 387 So. 2d 922 (Fla. 1980)
- Adams v. Peat, 449 U.S. 1067 (U.S. 1980)
- Jarrett v. Jarrett, 449 U.S. 1067 (U.S. 1980)
- Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984)
- Ardley v. State, 491 So. 2d 1259 (Fla. 1st DCA 1986)