Kyser v. State

District Court of Appeal of Florida

Kyser v. State

46 So. 3d 611, 2010 Fla. App. LEXIS 13565, 2010 WL 3528612

CourtDistrict Court of Appeal of Florida

DecidedSeptember 13, 2010

Docket1D09-3932

StatusPublished

This text of 46 So. 3d 611 (Kyser v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kyser v. State, 46 So. 3d 611, 2010 Fla. App. LEXIS 13565, 2010 WL 3528612 (Fla. Ct. App. 2010).

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Opinion

CLARK, J.

Walter Kyser appeals the denial of his petition for writ of habeas corpus, through which he challenged an order entered in 1996 denying him postconviction relief. The order denying postconviction relief was affirmed on appeal. Kyser v. State, 701 So.2d 870 (Fla. 1st DCA 1997). 1

Habeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief pursuant to the Florida Rules of Criminal Procedure. Harris v. State, 789 So.2d 1114, 1115 (Fla. 1st DCA 2001). It is well-settled that “habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues that could have been ... or were raised on direct appeal.” Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992). Neither is habeas corpus available as an additional appeal of issues which could have been or were raised in prior post-conviction proceedings. Mills v. Dugger, 574 So.2d 63 (Fla.1990); see also, Zuluaga v. State, Dept. of Corrections, 32 So.3d 674 (Fla. 1st DCA 2010).

The denial of habeas corpus relief is accordingly AFFIRMED.

KAHN and LEWIS, JJ., concur.

1

. Kyser's adjudication of guilty of first degree murder of a law enforcement officer and life sentence were affirmed on appeal, Kyser v. State, 576 So.2d 888 (Fla. 1st DCA 1991), and are not at issue in these proceedings.

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CLARK, J.

Walter Kyser appeals the denial of his petition for writ of habeas corpus, through which he challenged an order entered in 1996 denying him postconviction relief. The order denying postconviction relief was affirmed on appeal. Kyser v. State, 701 So.2d 870 (Fla. 1st DCA 1997). 1

Habeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief pursuant to the Florida Rules of Criminal Procedure. Harris v. State, 789 So.2d 1114, 1115 (Fla. 1st DCA 2001). It is well-settled that “habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues that could have been ... or were raised on direct appeal.” Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992). Neither is habeas corpus available as an additional appeal of issues which could have been or were raised in prior post-conviction proceedings. Mills v. Dugger, 574 So.2d 63 (Fla.1990); see also, Zuluaga v. State, Dept. of Corrections, 32 So.3d 674 (Fla. 1st DCA 2010).

The denial of habeas corpus relief is accordingly AFFIRMED.

KAHN and LEWIS, JJ., concur.

1

. Kyser's adjudication of guilty of first degree murder of a law enforcement officer and life sentence were affirmed on appeal, Kyser v. State, 576 So.2d 888 (Fla. 1st DCA 1991), and are not at issue in these proceedings.

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46 So. 3d 611, 2010 Fla. App. LEXIS 13565, 2010 WL 3528612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kyser-v-state-fladistctapp-2010.

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