DOMINICK A. OCCHICONE, PETITIONER,
v.
HARRY K. SINGLETARY, ETC., ET AL., RESPONDENTS
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The appellate court affirmed the conviction for possession of cocaine and drug paraphernalia but reversed the disposition imposed by the trial court.
The court held that knowledge is not an essential element for simple possession of cocaine or drug paraphernalia, and affirmed the conviction.
[1] A claim that jury instructions on statutory aggravators are unconstitutionally vague is procedurally barred if not preserved for appeal by objection at trial.
[2] A claim that jury instructions on statutory aggravators are unconstitutionally vague is procedurally barred if not raised on direct appeal.
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Join FLexlaw to unlock all legal intelligenceJerry Jay Chicone, III was convicted of possession of cocaine and drug paraphernalia. He appealed, arguing that the information and jury instructions …
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PER CURIAM.
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 ag-gravators 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 proeedurally 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 proeedurally 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 un constitutionally 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 Occhi-cone’s actions did not rise to the level needed to support this aggravator.
The trial court instructed the jury that this aggravator could only be considered as to the female victim, not both victims. The court also instructed the jury that its sentence “must be based upon the facts as you find them from the evidence and the laws.” In its sentencing order the trial court specifically found the facts insufficient to support finding this aggravator. A jury is “likely to disregard an option simply unsupported by the evidence.” Sochor v. Florida, — U.S. -, -, 112 S.Ct. 2114, 2122, 119 L.Ed.2d 326 (1992).
The jury, as noted previously, recommended death for each victim’s killing. We are convinced beyond a reasonable doubt that the instruction on the heinous, atrocious, or cruel aggravator played no part in the jury’s recommendation of death for the female victim’s murder and that its recommendation would have been the same absent that instruction.
Thus, reading the invalid instruction to the jury was harmless error.
Therefore, having found the issues raised in this petition to be procedurally barred, we deny Occhicone’s petition for writ of habeas corpus.
It is so ordered.
BARKETT, C.J., and OVERTON, McDonald, shaw, grimes, kogan and HARDING, JJ., concur.
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Occhicone v. State, 768 So. 2d 1037 (Fla. 2000)…ri on May 20, 1991. See Occhicone v. Florida, 500 U.S. 938, 111 S.Ct. 2067, 114 L.Ed.2d 471 (1991). On July 7, 1992, Oc-chicone filed a petition for writ of habeas corpus in this Court, which was denied on April 8, 1993. See Occhicone v. Singletary, 618 So. 2d 730 (Fla.1993). On May 20, 1993, Occhicone filed his initial 3.850 motion raising seven issues.1 The trial court summarily denied claims (1), (4), (5), (6), and (7) in their entirety and claims (2) and (3) in part. The trial court then conducted an evi…
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Starks v. State, 627 So. 2d 1194 (Fla. 3d DCA 1993)…that the phraseology of the proposed instruction invaded the province of the jury. We conclude that the objection regarding “duty being performed” was not sufficient to preserve the point for appellate review. Id.; see also Occhicone v. Singletary, 618 So. 2d 730 (Fla.1993); McBride v. State, 604 So. 2d at 1292. There was no objection at all to the “official position” instruction; that point likewise is not preserved for appellate review. Defendant contends that the jury instruction error was fundamental an…
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Reed v. State, 208 So. 3d 1231 (Fla. 1st DCA 2017)…apply in this case. Under these circumstances, it is difficult to conclude that the erroneously-given instruction had any effect on the jury. “A jury is ‘likely to disregard an option simply unsupported by the evidence.’ ” Occhicone v. Singletary, 618 So. 2d 730, 731 (Fla. 1993) (quoting Sochor v. Fla., 504 U.S. 527, 538, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992)) (finding that an erroneous aggravating-factor instruction in a capital murder prosecution was harmless where the evidence did not support the factor…
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
- Espinosa v. Florida, 505 U.S. 1079 (U.S. 1992)
- Maynard v. Cartwright, 486 U.S. 356 (U.S. 1988)
- Sochor v. Florida, 504 U.S. 527 (U.S. 1992)
- Occhicone v. State, 570 So. 2d 902 (Fla. 1990)
- Milo A. Rose v. State, 617 So. 2d 291 (Fla. 1993)
- Kennedy v. Singletary, 602 So. 2d 1285 (Fla. 1992)