Supreme Court of Florida
No. SC2026-1042
DOMINICK A. OCCHICONE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
July 21, 2026
PER CURIAM.
Dominick 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
Florida Rule of Criminal Procedure 3.851. Occhicone also moves
for a stay of execution. We have jurisdiction. See art. V, § 3(b)(1),
Fla. Const. For the reasons that follow, we affirm the denial of
postconviction relief, and we deny the motion for a stay of
execution.
I. BACKGROUND
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
-2-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 Fla. R. Crim. P. 3.851(d)(1)(B) (“For the purposes of this
rule, a judgment is final . . . on the disposition of the petition for
writ of certiorari by the United States Supreme Court, if filed.”).
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.
-3-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
motion for postconviction relief under rule 3.851 raising three
claims: (1) that recently reported shortages of etomidate, when
combined with the Florida Department of Corrections’ alleged
failure to follow its published lethal injection procedures, violates
Occhicone’s rights under the Fourteenth Amendment and
corresponding provisions of the Florida Constitution; (2) that
Occhicone’s execution violates the Eighth Amendment due to his
status as an elderly person; and (3) that executing Occhicone given
the number and pace of executions in Florida over the past two
years would be unconstitutional under the Eighth Amendment and
corresponding provisions of the Florida Constitution and would
result in a manifest injustice given the unique circumstances of his
case. The circuit court summarily denied all three claims, as well
-4-as Occhicone’s post-warrant request for public records and his
motion for a stay of execution. This appeal followed.
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 rule 3.852(i). 1 Occhicone
sought records concerning FDC’s procurement, storage, handling,
monitoring, preparation, use, disposal, and testing of etomidate;
compliance with execution procedures, including consciousness
checks and post-execution debriefings; and related research, expert
consultations, solicitations, and communications with federal and
state agencies. Occhicone asserted that the records would
demonstrate that FDC has repeatedly failed to carry out executions
in compliance with its own procedures and lethal injection protocol,
which he alleged violates his rights to due process and equal
1. Although Occhicone filed his request under both
subdivisions 3.852(h) and (i), and the circuit court denied the request under both subdivisions, on appeal, Occhicone only argues that the circuit court erred in denying the request under subdivision 3.852(i).
-5-protection under the Fourteenth Amendment and corresponding
provisions of the Florida Constitution. His allegation that FDC has
failed to follow its own procedures and protocol relating to lethal
injection stems from a heavily redacted reproduction of putative
FDC lethal injection drug inventory logs that surfaced in a federal
lawsuit filed by Frank Walls, who was executed in December 2025.
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
2. Etomidate is the first drug administered under Florida’s current lethal injection protocol. As to the reported etomidate shortage referenced in his public records request, Occhicone does not allege that FDC itself lacks a supply of etomidate. Rather, he argues that because a nationwide shortage exists, it is unconscionable for FDC to proceed with his execution given the dose of etomidate administered during an execution and the recent pace of executions in Florida. Occhicone did not argue below and does not argue on appeal that any authority recognizes a generally reported shortage of etomidate in clinical settings as a basis for relief under rule 3.851. He also contends that without access to the requested records, he cannot determine whether FDC intends to deviate from its protocol during his execution by using a drug other than etomidate, administering a dosage inconsistent with the protocol, or using expired etomidate. In essence, he speculates that the reported shortage will cause FDC to depart from its protocol in
-6-concerns about the possibility of expired or soon to be expired
etomidate being used in his execution and sought the requested
records “just to make sure he’s being treated fairly in relation to
everybody else.”
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
the future. But speculative allegations of misconduct—particularly speculative allegations that FDC may engage in future misconduct— do not establish a colorable claim for postconviction relief. See, e.g., Heath v. State, 426 So. 3d 1253, 1262-63 (Fla.), cert. denied, No. 25-6746, 2026 WL 363902 (U.S. Feb. 10, 2026); Trotter v. State, 428 So. 3d 68, 72-73 (Fla.), cert. denied, 146 S. Ct. 755 (2026); King v. State, No. SC2026-0336, 2026 WL 672101, at *5-6 (Fla. Mar. 10), cert. denied, 146 S. Ct. 1802 (2026); Spencer v. State, No. SC2026-0880, 2026 WL 1757938, at *5-6 (Fla. June 18), cert. denied, No. 25-7648, 2026 WL 1827690 (U.S. June 25, 2026).
-7-investigate the drugs to be used in his execution, and the circuit
court’s decision to prevent that investigation violates his rights to
due process and equal protection under the Fourteenth Amendment
by leaving him unable to develop claims based on FDC’s alleged use
of expired etomidate and the reported ongoing shortage of
etomidate. He further contends that the denial itself violates
procedural due process by constraining his ability to challenge the
constitutionality of his execution. Moreover, he argues it violates
his right of access to the courts under article I, section 21 of the
Florida Constitution by preventing him from obtaining evidence
necessary to establish his constitutional claims.
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 evidence,” 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
-8-254, 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 unrelated 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
rule 3.852. It follows from the rule’s own command that requested
records be “relevant to a postconviction proceeding or reasonably
calculated to lead to admissible evidence,” because “the relevancy of
the requested records . . . is directly measured by their connection
to a colorable claim for relief.” Id. This limitation ensures that
records requests reflect “a focused investigation into some
legitimate area of inquiry” rather than an eleventh-hour delay
tactic. See id. (“Rule 3.852 is not intended for use by defendants
as . . . ‘nothing more than an eleventh-hour attempt to delay the
-9-execution rather than a focused investigation into some legitimate
area of inquiry.’ ” (omission in original) (quoting Sims, 753 So. 2d at
70)).
Occhicone acknowledges that he sought records to conduct “a
full investigation into the drugs” that are to be 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
Fourteenth Amendment, as well as his right of access to the courts
under article I, section 21 of the Florida Constitution. Those
arguments all depend on the flawed premise that rule 3.852 entitled
- 10 -him to the requested records. And, as we explained in Hitchcock v.
State, 431 So. 3d 514, 523 (Fla.), cert. denied, No. 25-7255, 2026
WL 1170862 (U.S. Apr. 30, 2026), “no constitutional right exists to
discover grievances or to litigate effectively once in court.” The
circuit court’s denial of Occhicone’s records request did not violate
his constitutional rights. See King v. State, No. SC2026-0336, 2026
WL 672101, at *6 (Fla. Mar. 10) (rejecting a claim that the denial of
a post-warrant public records demand violated due process and
explaining that the Court has “previously rejected efforts to morph a
challenge to the denial of a public records demand into a
constitutional challenge”), cert. denied, 146 S. Ct. 1802 (2026);
Randolph v. State, 422 So. 3d 166, 172 (Fla.) (collecting cases
rejecting constitutional challenges premised on the denial of
postconviction public records requests), cert. denied, 146 S. Ct. 819
(2025).
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
- 11 -appears to be that, given the alleged nationwide shortage of
etomidate and FDC’s alleged past deviations from its own execution
protocols, FDC will deviate from the protocols in Occhicone’s case
and thereby violate his right to equal protection. There are several
reasons why the circuit court was right to deny this 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
- 12 -constitution’s protection against “intentional and arbitrary
discrimination.” Id. (quoting Sioux City Bridge Co. v. Dakota
County, 260 U.S. 441, 445 (1923)). Occhicone does not allege that
he will be the victim of intentional discrimination.
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 Eighth
Amendment. Glossip v. Gross, 576 U.S. 863, 878 (2015).
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 Eighth Amendment and corresponding
provisions of the Florida Constitution because of his status as an
elderly person. Occhicone insists that he is not seeking a
- 13 -categorical bar based on old age. Instead, he argues that his
execution would constitute cruel and unusual punishment because
of the “totality of the circumstances.” Occhicone points to his
history of substance abuse; sleep deprivation on death row; poor
hearing and vision; cardiac issues; kidney disease; an enlarged
prostate; and the general physical deterioration associated with
advanced age. We find no error in the circuit court’s denial of this
claim, which is untimely and in any event lacks merit.
1. The Claim is Untimely
Occhicone has not established that this claim is timely. Rule
3.851 limits the filing of a motion for postconviction relief to within
one year of the date the defendant’s conviction and sentence
became final, unless the motion alleges one of the following
exceptions set forth in subdivision (d)(2):
(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 provided for in subdivision
(d)(1) and has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed to file
the motion.
- 14 -And any claim based on facts that were previously unknown must
still be brought within one year of the date that the factual basis for
the claim became discoverable. Heath, 426 So. 3d at 1267.
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 Eighth
Amendment arose or became known to him only within the last
year. See Spencer, 2026 WL 1757938, at *6 (observing that a
seventy-four-year-old defendant under an active death warrant
identified no meaningful circumstances arising within the year
preceding a successive postconviction claim and that the mere
progression from one year in age to the next does not create a new
factual predicate every year under rule 3.851). Thus, Occhicone’s
claim that he is too old to be executed based on his individual
circumstances is untimely.
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
- 15 -decisions in Smithers v. State, 420 So. 3d 460 (Fla.), cert. denied,
146 S. Ct. 323 (2025), Trotter, 428 So. 3d 68, and Spencer, 2026 WL
1757938. In those cases, we rejected claims seeking a categorical
exemption from execution based on the defendant’s advanced age.
Smithers, 420 So. 3d at 465-66; Trotter, 428 So. 3d at 73-74;
Spencer, 2026 WL 1757938, at *6-7.
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 agebased exemption that the U.S. Supreme Court has never
recognized. The conformity clause of article I, section 17 of the
Florida Constitution precludes that. It provides that “[t]he
prohibition against cruel or unusual punishment, and the
prohibition against cruel and unusual punishment, shall be
construed in conformity with decisions of the United States
Supreme Court which interpret the prohibition against cruel and
unusual punishment provided in the Eighth Amendment to the
United States Constitution.” This means that the Supreme Court’s
interpretation of the Eighth Amendment sets both the floor and the
ceiling for protection from cruel and unusual punishment in
- 16 -Florida. Barwick v. State, 361 So. 3d 785, 794 (Fla. 2023).
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 clemency, 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 executing a defendant after more than thirty years on
death row violates the Eighth Amendment).
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 Eighth Amendment and result in a manifest
injustice due to the number and pace of executions in Florida over
- 17 -the past two years and the unique circumstances of his case.
Occhicone advances three distinct theories in support of this claim:
(1) that the number and pace of executions in Florida over the past
two years have inflicted psychological and emotional harm on the
correctional staff at Florida State Prison, such that carrying out his
execution would be cruel and unusual; (2) that his advanced age,
Catholic faith, Italian heritage, and the opposition of religious
leaders and members of the community to the death penalty in his
case render his execution a manifest injustice; and (3) that his
death sentence is unconstitutional and manifestly unjust because it
was imposed based on a seven-to-five jury recommendation that
would be insufficient under the current version of section 921.141,
Florida Statutes. Occhicone is not entitled to relief under any of
these theories.
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
- 18 -that it is cruel and emotionally damaging to make him watch the
prison staff, with whom he has developed close relationships, carry
the emotional burden of an execution. Occhicone seeks relief in the
form of a six-month moratorium on executions to allow experts to
study the effect of the recent executions on prison staff. Such relief
is unavailable under rule 3.851, which is a vehicle for seeking
vacatur of a conviction or sentence of death.
To the extent Occhicone raises an Eighth Amendment claim, it
fails on the merits. Occhicone has identified no authority
recognizing an Eighth Amendment injury premised on a prisoner’s
exposure to the suffering of others. Nor does he identify any legal
support for his assertion that, due to his own Catholic faith and
certain community members’ opposition to the death penalty in his
case, executing him would constitute a manifest injustice.
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 least eight penalty-phase jurors.
§ 921.141(2)(c), Fla. Stat. (2026). Occhicone argues that executing
him based on the seven-to-five death recommendation in his case
- 19 -would therefore violate the Eighth Amendment and constitute a
manifest injustice. 3 The circuit court was right to deny this claim.
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 rule 3.851.
Moreover, changes in our state’s death penalty law and
jurisprudence mean that death row inmates will not all have been
sentenced under identical procedures. That variation does not
render Occhicone’s death sentence a manifest injustice.
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
3. Occhicone maintains that this claim is distinct from one brought under Hurst v. Florida, 577 U.S. 92 (2016), or Hurst v. State, 202 So. 3d 40 (Fla. 2016). To the extent that this claim could be construed as a Hurst claim, Occhicone previously sought relief under Hurst in his first successive motion for postconviction relief, and we rejected that claim on appeal. Occhicone, 235 So. 3d at 300.
- 20 -mandate shall issue immediately.
It is so ordered.
COURIEL, C.J., and MUÑIZ, GROSSHANS, FRANCIS, SASSO, and TANENBAUM, JJ., concur.
LABARGA, J., concurs in result.
An Appeal from 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 General, Suzanne Glickman, Senior Assistant Attorney General, and Michael W. Mervine, Special Counsel, Assistant Attorney General, Tampa, Florida,
for Appellee
- 21 -