ANTHONY JOHN PONTICELLI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Supreme Court, on remand from the U.S. Supreme Court to reconsider in light of Espinosa v. Florida, affirmed Ponticelli's death sentence for two first-degree murders. The court held that Ponticelli's challenge to the constitutionality of jury instructions on aggravating factors was procedurally barred because he failed to object at trial, despite the instructions being potentially deficient under Espinosa.
Ponticelli's challenge to the jury instructions is procedurally barred and does not entitle him to relief because he failed to object to the instructions before the jury retired, as required by Florida Rule of Criminal Procedure 3.390(d). The claimed error is not exempt from the objection requirement merely because it may be apparent from the face of the record.
[1] A challenge to the sufficiency of jury instructions on aggravating factors is procedurally barred if no specific instructions were requested or objections were made to th…
[2] Florida Rule of Criminal Procedure 3.390(d) requires a party to object to jury instructions before the jury retires to consider its verdict, stating distinctly the matter…
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Join FLexlaw to unlock all legal intelligence“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.”
Florida Rule of Criminal Procedure 3.390(d) establishing the procedural requirement that bars Ponticelli's challenge to jury instructions.
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Join FLexlaw to unlock all legal intelligencePonticelli was convicted of first-degree murder of two brothers, Ralph and Nick Grandinetti. Ralph was shot once in the back of the head and died with…
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PER CURIAM.
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, § 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 Grandi-netti 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, — U.S.-, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992); Vaught v. State, 410 So. 2d 147 (Fla.1982).
Accordingly, after reconsideration in light of Espinosa, we find that Pontieelli is not entitled to relief because the claim has been waived. We again affirm Ponticelli’s convictions and sentences of death.
It is so ordered.
BARKETT, C.J., and OVERTON, McDonald, SHAW, GRIMES and KOGAN, JJ., concur. HARDING, J., did not participate in this case.
. § 921.141(5)(h), (i), Fla.Stat. (1987).
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Hannon v. State, 638 So. 2d 39 (Fla. 1994)…ver, while Hannon’s counsel objected to the applicability of the heinous, atrocious, or cruel aggravating 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, — U.S. —, 114 S.Ct. 279,126 L.Ed.2d 230 (1993). Even if the claim had been preserved, we are convinced beyond a reason…
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Ponticelli v. State, 941 So. 2d 1073 (Fla. 2006)…. [and] [t]he same applies to the instruction on [CCP],” the claim was denied because Ponticelli’s defense counsel had not objected to these instructions at the time of trial, thereby waiving Ponticel-li’s right to contest them. Ponticelli v. State, 618 So. 2d 154, 154-55 (Fla.1993). The United States Supreme Court denied Ponticelli’s second petition for writ of cer-tiorari. Ponticelli v. Florida, 510 U.S. 935, 114 S.Ct. 352, 126 L.Ed.2d 316 (1993). The current appeal arises from the trial court’s denial of…1 / 2
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Tavoris A. Rozier v. State, 636 So. 2d 1386 (Fla. 4th DCA 1994)…ed threats to have been encouraged by defendant and a fear of reprisal from general inmate population is typical of any inmate who testifies for the State), vacated on other grounds, — U.S. -, 113 S.Ct. 32, 121 L.Ed.2d 5, (1992), aff'd after remand, 618 So. 2d 154 (Fla.1993); State v. Price, 491 So. 2d 536, 536-37 (Fla.1986) (finding that the probative value of the third-party threats was outweighed by its prejudicial impact); In the Interest of J.R., 577 So. 2d 674, 675 (Fla. 4th DCA 1991). The State must pr…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Espinosa v. Florida, 505 U.S. 1079 (U.S. 1992)
- Sochor v. Florida, 504 U.S. 527 (U.S. 1992)
- Konstantinos X. Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992)
- Robinson v. State, 574 So. 2d 108 (Fla. 1991)
- Sochor v. State, 580 So. 2d 595 (Fla. 1991)
- Vaught v. State, 410 So. 2d 147 (Fla. 1982)
- Ponticelli v. State, 593 So. 2d 483 (Fla. 1991)