Ponticelli v. State, 73064
| Decision Date | 04 March 1993 |
| Docket Number | No. 73064,73064 |
| Citation | 618 So.2d 154 |
| Parties | 18 Fla. L. Week. S133, 18 Fla. L. Week. S309 Anthony John PONTICELLI, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen. and David S. Morgan and Kellie A. Nielan, Asst. Attys. Gen., Daytona Beach, for appellee.
This case is before us on remand from the United States Supreme Court for reconsideration in light of Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Ponticelli v. Florida, --- U.S. ----, 113 S.Ct. 32, 121 L.Ed.2d 5 (1992). We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.
Ponticelli was convicted of the first-degree murders of two brothers, Ralph and Nick Grandinetti. Ralph Grandinetti died within one to two minutes of being shot once in the back of the head. Nick Grandinetti was shot twice in the head and while still conscious was beaten with the butt of the gun and driven around with his head pushed down on the hot floorboard, causing burns to his right ear. The facts of the murders are set out in our opinion on direct appeal, Ponticelli v. Florida, 593 So.2d 483 (1991), vacated, --- U.S. ----, 113 S.Ct. 32, 121 L.Ed.2d 5 (1992).
Among the numerous claims rejected on appeal, we rejected Ponticelli's tenth claim regarding the constitutionality of the aggravating factors of heinous, atrocious, or cruel, and cold, calculated, and premeditated 1 based on our decision in Robinson v. State, 574 So.2d 108, 113 n. 6 (Fla.), cert. denied, --- U.S. ----, 112 S.Ct. 131, 116 L.Ed.2d 99 (1991). As part of claim ten Ponticelli challenged the limited instruction given on the aggravating factor of heinous, atrocious, or cruel. A review of the record reveals that the instruction given on that aggravating factor was even less detailed than that found insufficient in Espinosa. However, the challenge to the sufficiency of the instruction is procedurally barred because there was no request for specific instructions or objection to the instructions given. The same applies to the instruction on cold, calculated premeditation. We reject Ponticelli's contention on appeal that no objection was required to preserve this claim because the error is "apparent from the face of the record." We have repeatedly applied and affirmed Florida Rule of Criminal Procedure 3.390(d) which provides:
No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection.
See, e.g., Fotopoulos v. State, 608 So.2d 784, 792 (Fla.1992); Sochor v. State, 580 So.2d 595, 602 (Fla.1991), vacated on other grounds, ...
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...the statement involuntary."), vacated on other grounds, 506 U.S. 802, 113 S.Ct. 32, 121 L.Ed.2d 5 (1992), adhered to on remand, 618 So.2d 154 (1993). ¶ 50 The majority attempts to evade the impact of Detective Mikulcik's interrogation tactic by stating, "[a] police officer cannot actually e......
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...again affirmed Ponticelli's sentences and concluded that any error under Espinosa was procedurally barred. Ponticelli v. State ( Ponticelli II), 618 So.2d 154, 154–55 (Fla.1993).E. First State Postconviction Motion and Evidentiary Hearing On April 11, 1995, Ponticelli filed a motion for pos......
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Ponticelli v. State
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...factor in this case, he made no objection to the wording of the instruction. Therefore, this claim is procedurally barred. Ponticelli v. State, 618 So.2d 154 (Fla.), cert. denied, --- U.S. ----, 114 S.Ct. 352, 126 L.Ed.2d 316 (1993); Rose v. State, 617 So.2d 291, 297-98 (Fla.), cert. denied......