Occhicone v. Singletary, 80234
| Decision Date | 08 April 1993 |
| Docket Number | No. 80234,80234 |
| Citation | 618 So.2d 730 |
| Parties | 18 Fla. L. Week. S235 Dominick A. OCCHICONE, Petitioner, v. Harry K. SINGLETARY, etc., et al., Respondents. |
| Court | Florida Supreme Court |
Claude H. Tison, Jr. and Dan D. McClain of MacFarlane Ferguson, Tampa, for petitioner.
Robert A. Butterworth, Atty. Gen. and Robert J. Krauss, Asst. Atty. Gen., Tampa, for respondents.
Dominick Occhicone, a prisoner on death row, petitions this Court for writ of habeas corpus. We have jurisdiction, article V, section 3(b)(1), (9), Florida Constitution, and deny the petition.
A jury convicted Occhicone of two counts of first-degree murder for killing his former girlfriend's parents and recommended that he be sentenced to death for each conviction. The trial court, however, sentenced him to life imprisonment for the father's murder and to death for the mother's. We affirmed the convictions and sentences on direct appeal. Occhicone v. State, 570 So.2d 902 (Fla.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2067, 114 L.Ed.2d 471 (1991).
In this petition Occhicone argues that he must be resentenced because the jury instruction on the heinous, atrocious, or cruel; cold, calculated, and premeditated; and committed during a burglary aggravators are unconstitutionally vague. He bases this claim on Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), in which the United States Supreme Court declared invalid our former instruction on the heinous, atrocious, or cruel aggravator. We hold that these claims are procedurally barred.
Occhicone objected at trial that the facts did not support giving these instructions, but did not object to their wording or their constitutionality, nor did he request additional clarifying language. On direct appeal he argued that they were unconstitutionally vague, and we found the complaint about the felony-murder aggravator to be procedurally barred because it had not been preserved for appeal. 570 So.2d at 905-06. Regarding the other aggravators, we stated: "Maynard v. Cartwright, 486 U.S. 356 [108 S.Ct. 1853, 100 L.Ed.2d 372] (1988), did not make Florida's penalty instructions on cold, calculated, and premeditated and heinous, atrocious, or cruel unconstitutionally vague." Id. at 906. We could have, and probably should have, also said at that time that the claim was procedurally barred because of no objection at the trial court level. In any event, the current claims are procedurally barred. Rose v. State, 617 So.2d 291 (Fla.1993); Kennedy v. Singletary, 602 So.2d 1285 (Fla.1992).
To forestall further litigation, however, we find that any misinstruction as to the heinous, atrocious, or cruel aggravator was harmless error. During closing argument, defense counsel explained this aggravator to the jury and argued that Occhicone's actions did...
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