Dominick A. Occhicone v. State of FloridaDominick A. Occhicone v. State of Florida
Dоminick A. Occhicone, a prisoner under sentence of death for whom a death warrant has been signed and an execution set for July 28, 2026, appeals the circuit court‘s order summarily denying his second successive motion for postconviction relief filed under
Occhicone was sentenced to death for the 1986 first-degree murder of his ex-girlfriend‘s mother. On direct appeal, this Court recounted the facts of the case as follows:
In the early morning hours of June 10, 1986[,] Occhicone awakened his former girlfriend by knocking on the sliding glass door to her bedroom in a house she shared with her children and her parents. The woman refused to talk with him and he left. He returned an hour or so later, armed with a handgun, and cut the telephone lines and roused the household. When the woman‘s father confronted him outside the house, Occhicone shot him. The woman and her daughter fled the house while Occhicone was breaking into it through a locked door. Once inside[,] Occhicone shot the woman‘s mother four times.
Occhicone v. State, 570 So. 2d 902, 904 (Fla. 1990).
Later, in a postconviction appeal, we described some of the pertinent proceedings as follows:
At trial, Occhicone asserted a voluntary intoxication defense[,] claiming that his level of intoxication on the night of the murders, as well as his documented drinking habit, prevented him from having the requisite mental state to premeditate the murders. However, the jury found him guilty and recommended the death penalty for both murders by a seven-to-five vote.
Although the trial judge sentenced Occhicone to life in prison for the murder of his ex-girlfriend‘s father, he sentenced him to death for the murder of her mother. In support of the death sentence, the trial judge found three aggravating factors: (1) previous conviction of a violent
felony; (2) murder committed during a burglary; and (3) murder committed in a cold, calculated, and premeditated manner. As statutory mitigation, the trial judge found that the murder was committed while Occhicone was under the influence of extreme mental and emotional disturbance. Finally, as nonstatutory mitigation, the judge found that Occhicone was a good prisoner and had acclimated to his custodial environment.
Occhicone v. State, 768 So. 2d 1037, 1039 (Fla. 2000).
This Court‘s affirmance of Occhicone‘s judgment and death sentence, Occhicone, 570 So. 2d at 903, became final for postconviction timing purposes in 1991, when the U.S. Supreme Court denied certiorari review. Occhicone v. Florida, 500 U.S. 938 (1991); see
In the decades since, Occhicone has unsuccessfully challenged his convictions and sentence in state and federal courts. See Occhicone v. Singletary, 618 So. 2d 730, 730-31 (Fla. 1993) (denying state habeas petition); Occhicone v. State, 768 So. 2d at 1039 (affirming denial of initial motion for postconviction relief); Occhicone v. State, 235 So. 3d 299, 300 (Fla. 2018) (affirming denial of first successive motion for postconviction relief); Occhicone v. Moore, No. 8:01CV2136T27TGW, 2005 WL 1073936, at *30 (M.D. Fla. Mar. 31, 2005) (denying federal habeas petition); Occhicone v. Crosby, 455 F.3d 1306, 1307 (11th Cir. 2006) (affirming denial of federal habeas relief); Occhicone v. McDonough, 549 U.S. 1122 (2007) (denying certiorari review of denial of federal habeas relief).
After Governor Ron DeSantis signed Occhicone‘s death warrant on June 26, 2026, Occhicone filed a second successive mоtion for postconviction relief under
II. ANALYSIS
A. Post-Warrant Request for Public Records
Occhicone first argues that the circuit court erred in denying his post-warrant request for public records from the Florida Department of Corrections (FDC) under
In his request, Occhicone also claimed that there was a current shortage of etomidate, which indicated that he was at risk of being treated differently under the law and FDC protocols from other similarly situated capital defendants under warrant, thereby violating his equal protection rights.2 He explained that he had
FDC objected to Occhicone‘s public records request, arguing that the requested records were confidential and statutorily exempt from disclosure; did not relate to a colorable claim for postconviction relief; and were overly broad and unduly burdensome. The circuit court denied the request, agreeing with FDC on each ground. We review the denial of public records requests for an abuse of discretion, Muhammad v. State, 132 So. 3d 176, 200 (Fla. 2013), and find no such abuse here.
Occhicone argues that the circuit court abused its discretion in denying his request because the records are necessary to fully
Because Occhicone failed to show that the records requested related to a colorable claim for postconviction relief, the circuit court was right to deny the request.
Occhicone argues that the plain language of the rule only requires that the records are relevant to the subject matter of a proceeding or reasonably calculated to lead to the discovery of admissible evidencе, not the higher burden the circuit court imposed by requiring that they relate to a colorable claim. We recently rejected both contentions in Willacy v. State, 431 So. 3d 254, 262 (Fla.), cert. denied, No. 25-7220, 2026 WL 1074143 (U.S. Apr. 21, 2026).
In Willacy, we explained that we have long recognized the requirement of a nexus between the requested records and a colorable claim for postconviction relief. Id. (citing Sims v. State, 753 So. 2d 66, 70 (Fla. 2000); Dailey v. State, 283 So. 3d 782, 792 (Fla. 2019); Asay v. State, 224 So. 3d 695, 700 (Fla. 2017)). That is because the rule is not intended to be a procedure authorizing a fishing expedition for records unrelatеd to a colorable claim for postconviction relief. Id. (quoting Sims, 753 So. 2d at 70).
The colorable claim requirement is not a judicial gloss on
Occhicone acknowledges that he sought records to conduct a full investigation into the drugs that are to bе used for his execution, and he argues that the circuit court‘s decision left him unable to form claims based on FDC‘s alleged use of expired etomidate and the reported ongoing shortage of etomidate. But seeking public records to conduct a full investigation is precisely what the colorable-claim requirement guards against. Occhicone sought to discover whether a claim might exist, rather than seeking records to support an existing claim. That is a misuse of the rule. Id. at 263; Heath v. State, 426 So. 3d 1253, 1265 (Fla.), cert. denied, No. 25-6746, 2026 WL 363902 (U.S. Feb. 10, 2026).
Occhicone‘s remaining constitutional arguments are likewise without merit. He contends that denying his public records request violated his rights to due process and equal protection under the
B. Claim That Occhicone‘s Execution Violates His Right to Equal Protection
To the extent Occhicone also challenges the summary denial of the first claim in his successive motion independent of the denial of his public records request, we affirm. The gist of Occhicone‘s claim
First, Occhicone‘s claim that he is entitled to relief based on the possibility that FDC will deviate from its lethal injection protocol is speculative and foreclosed by this Court‘s recent decisions addressing materially similar claims. See, e.g., Heath, 426 So. 3d at 1261-63; Trotter v. State, 428 So. 3d 68, 72-76 (Fla.), cert. denied, 146 S. Ct. 755 (2026); King, 2026 WL 672101, at *4-6; Spencer v. State, No. SC2026-0880, 2026 WL 1757938, at *4-6 (Fla. June 18), cert. denied, No. 25-7648, 2026 WL 1827690 (U.S. June 25, 2026).
Second, Occhicone‘s equal protection claim is not based on any claimed membership in a suspect class, and he cannot prevail under a class of one theory. Such claims are available only where the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). This test reflects the
Finally, there is Occhicone‘s argument that his equal protection rights will be violated by the use of extremely expired etomidate during his execution. Aside from being speculative, this allegation neither identifies any disparate treatment nor alleges that a deviation from the protocol would subject him to a substantial and imminent risk of severe pain in violation of the
We find no error in the circuit court‘s denial of Occhicone‘s equal protection claim.
C. Claim That Occhicone‘s Execution Violates the Eighth Amendment Due to His Status as an Elderly Person
Occhicone next argues that the circuit court erred in denying his claim that his execution would constitute cruel and unusual punishment under the
1. The Claim is Untimely
Occhicone has not established that this claim is timely.
(A) the facts on which the claim is predicated were unknown to the movant or the movant‘s attorney and could not have been ascertained by the exercise of due diligence, or
(B) the fundamental constitutional right asserted was not established within the period providеd for in subdivision (d)(1) and has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed to file the motion.
Occhicone‘s judgment and sentence became final thirty-five years ago, and he has not alleged that any of these exceptions to the one-year time limit apply to this claim. Nor did he allege that any of the circumstances underlying his claim that he is so elderly and vulnerable that his execution would violate the
2. The Claim Lacks Merit
Even if this claim were timely, it would fail on the merits. We are unpersuaded by Occhicone‘s attempt to avoid our recent
Whether Occhicone seeks a categorical or as-applied exemption based on his advanced age is a distinction without a difference. Either way, he asks this Court to recognize an age-based exemption that the U.S. Supreme Court has never recognized. The conformity clause of
Occhicone has identified no authority that would allow our Court to vacate his death sentence based on the combination of his age and the litany of infirmities from which he allegedly suffers. That plea sounds in clemеncy, which of course is the province of the executive branch.
Finally, we note Occhicone‘s argument that the passage of forty years has drained his execution of any deterrent value. In our view, this is merely a variation of the assertion that a prolonged stay on death row renders an execution unconstitutional. That is another claim this Court has already rejected. See, e.g., Dillbeck v. State, 357 So. 3d 94, 103 (Fla. 2023) (rejecting as facially invalid the claim that exеcuting a defendant after more than thirty years on death row violates the
D. Claim Based on the Number and Pace of Executions in Florida
In his final issue on appeal, Occhicone argues that the circuit court erred in summarily denying his claim that his execution would violate the
1. The Rate and Pace of Executions Do Not Violate Occhicone‘s Eighth Amendment Rights or Result in a Manifest Injustice
Purporting to assert a claim on his own behalf and on behalf of prison staff, Occhicone contends that the rate and pace of executions in 2025 and 2026 have traumatized and are wrecking the mental health of the staff at Florida State Prison. He claims
To the extent Occhicone raises an
2. Occhicone‘s Execution Will Not Violate the Eighth Amendment or Create a Manifest Injustice Despite the Seven-to-Five Death Recommendation
Under current Florida law, the imposition of a death sentence requires the recommendation of at leаst eight penalty-phase jurors.
The claim is untimely, because the current version of Florida‘s death penalty statute has been in effect since 2023, several years before Occhicone filed the instant motion under
III. CONCLUSION
For the reasons stated above, we affirm the circuit court‘s order summarily denying Occhicone‘s second successive motion for postconviction relief, and we deny his motion for a stay of execution.
No motion for rehearing will be entertained by this Court. The
It is so ordered.
COURIEL, C.J., and MUÑIZ, GROSSHANS, FRANCIS, SASSO, and TANENBAUM, JJ., concur.
LABARGA, J., concurs in result.
An Appeal frоm the Circuit Court in and for Pasco County, Pat Siracusa, Jr., Judge – Case No. 511986CF001355CFAXWS
Eric Pinkard, Capital Collateral Regional Counsel, Ali A. Shakoor, Assistant Capital Collateral Regional Counsel, Debra Roganne Bell, Assistant Capital Collateral Regional Counsel, and Mahham Syed, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida,
for Appellant
James Uthmeier, Attorney General, Tallahassee, Florida, Rick A. Buchwalter, Senior Assistant Attorney Gеneral, Suzanne Glickman, Senior Assistant Attorney General, and Michael W. Mervine, Special Counsel, Assistant Attorney General, Tampa, Florida,
for Appellee