Petition for Writ of Certiorari — Dominick A. Occhicone, Petitioner v. Florida

Supreme Court briefJul 24, 2026

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No. ______

______________________________________________________________

In the Supreme Court of the United States

______________________________________________________________

DOMINICK OCCHICONE,

Petitioner,

STATE OF FLORIDA,

Respondent.

___________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA SUPREME COURT

_____________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

CAPITAL CASE

DEATH WARRANT SIGNED

Execution Scheduled: July 28, 2026, at 6:00 PM ET

_____________________________________________________________

* ALI A. SHAKOOR

DEBRA R. BELL

MAHHAM SYED

CAPITAL COLLATERAL REGIONAL

COUNSEL - MIDDLE REGION

12973 N. Telecom Parkway

Temple Terrace, Florida 33637

813-558-1600

shakoor@ccmr.state.fl.us

bell@ccmr.state.fl.us

support@ccmr.state.fl.us

Counsels of Record for Petitioner

*Member of the Bar of the Supreme Court

CAPITAL CASE

QUESTION PRESENTED

In 2025 and 2026, the State of Florida engaged in an unprecedented spree of

death warrants, resulting in 19 executions during 2025 and 10 so far in 2026, with

one scheduled to occur mere hours before Occhicone’s and another one scheduled 3

weeks later. As recently as 2023, before the accelerated rate of executions, Justice

LaBarga of the Florida Supreme Court raised concerns over the pace of executions

occurring in Florida in his dissent in Barwick v. State, 361 So. 3d 785, 796 (Fla. 2023)

As the majority observes, “post-warrant litigation is arduous,” see

majority op. at 7, and a death warrant by its very nature requires

expedited proceedings. However, these solemn proceedings ultimately

involve carrying out a sentence of death for the most aggravated and

least mitigated of murders and must still ensure due process of law. I

am extremely concerned by the recent pace of death warrants and the

speed with which the parties and involved entities must carry out their

respective duties.

Barwick has raised concerns about the accelerated timetable and argues

that “[t]he death warrant proceedings in [his] case lacked any indicia of

meaningfulness.” While I agree that Barwick's claims are not entitled to

relief under this Court's precedent, I nonetheless caution that even in

this final stage of capital proceedings, a meaningful process must be

ensured.

During the rash of executions, the Florida Department of Corrections (“FDOC”)

complied with a records request regarding how the agency carried out the

administration of its lethal injection protocol. The logs produced pursuant to said

records request, indicated concerns regarding whether Florida is carrying out its

lethal injection protocol in a manner consistent with the United States Constitution.

Florida courts, including the Florida Supreme Court (“FSC”), have consistently

refused to force FDOC to produce additional records regarding the evidence of the

maladministration of the current lethal injection protocols. Thus, Florida capital

defendants under warrant have raised challenges to this Court in an effort for federal

judicial intervention at the highest level. The following previously executed

defendants raised claims to this court based on Eighth Amendment grounds: Walls v.

Florida, cert denied, No. 25-6357, --- U.S. ----, 2025 WL 3674295 (U.S. December 18,

2025); Heath v. Florida, cert denied, No. 25-6746, --- U.S. ----, 2026 WL 363902 (U.S.

February 10, 2026); Smithers v. State, 420 So. 3d 460, 465 (Fla.), cert. denied sub nom.

Smithers v. Florida, 146 S. Ct. 323, 223 L. Ed. 2d 143 (2025); Trotter v. Florida, cert

denied, No. 25-6853, --- U.S. ----, 2026 WL 504237 (U.S. February 24, 2026); Spencer

v. State, No. SC2026-0880, 2026 WL 1757938 (Fla. June 18, 2026), cert. denied sub

nom. Spencer v. Fla., No. 25-7648, 2026 WL 1827690 (U.S. June 25, 2026). Other

previously executed defendants raised claims related to the maladministration of

FDOC’s protocols as due process and equal protection claims: King v. State, --- So. 3d

---, 2026 WL 672101 (Fla. Mar. 10, 2026); Willacy v. State, --- So. 3d. ---, 2026 WL

1021168 (Fla. Apr. 15, 2026). Whereas only this Honorable Court has the power and

authority to hold Florida to address Florida’s actions, Petitioner raises the following

questions presented regarding this deadly serious matter:

Does the Florida courts’ complete refusal to provide additional

FDOC records to Occhicone, by imposing an improper standard

of raising a “colorable claim for relief” in order to obtain those

records, along with their refusal to conduct an evidentiary

hearing result in an abuse of discretion in violation of

Occhicone’s due process and equal protection rights under the

Fourteenth Amendment?

Does the State of Florida’s interpretation of the Eighth

Amendment and reliance on its Conformity Clause violate

iii

Occhicone’s right to be free from cruel and/or unusual

punishment and right to due process under the Fourteenth

Amendment?

LIST OF PARTIES

All parties appear in the caption on the cover page.

RELATED CASES

Trial and Sentencing

Circuit Court of the Sixth Judicial Circuit, Pasco County

Docket Number: 1986CF001355CFAWS

Case Caption: State of Florida v. Dominick Occhicone

Date of Entry of Judgement: Convicted, September 18, 1987; Sentenced,

November 9, 1987

Unreported

Direct Appeal

Supreme Court of Florida

Docket Number: SC1960-71505

Case Caption: Occhicone v. State

Date of Entry of Judgement: Denied, October 11, 1990; Rehearing Denied,

December 26, 1990

Occhicone v. State, 570 So. 2d 902, 904 (Fla. 1990)

Petition for Writ of Certiorari

Supreme Court of the United States

Docket Number: 90-7541

Case Caption: Occhicone v. Florida

Date of Entry of Judgement: Denied, May 20, 1991

Occhicone v. Fla., 500 U.S. 938, 111 S. Ct. 2067, 114 L. Ed. 2d 471 (1991)

Petition for Writ of Habeas Corpus

Supreme Court of Florida

Docket Number: 80234

Case Caption: Occhicone v. Singletary

Date of Entry of Judgement: Denied, April 8, 1993; Rehearing Denied, June

7, 1993

Occhicone v. Singletary, 618 So. 2d 730, 730 (Fla. 1993)

Motion for Postconviction Relief

Circuit Court of the Sixth Judicial Circuit, Pasco County

Docket Number: 1986CF001355CFAWS

Case Caption: Dominick Occhicone v. State of Florida

Date of Entry of Judgement: Denied in Part, July 17, 1995, Order Granting

in Part, September 12, 1996; Evidentiary Hearing Concluded, November 18,

1997; Denied, May 19, 1998

Unreported

Motion for Belated Appeal (Pro Se)

Supreme Court of Florida

Docket Number: SC1960-92887

Case Caption: Occhicone v. State

Date of Entry of Judgement: Denied, August 17, 1998

Occhicone v. State, 718 So. 2d 1234 (Fla. 1998)

Appeal from Denial of Motion for Postconviction Relief

Supreme Court of Florida

Docket Number: SC1960-93343

Case Caption: Occhicone v. State

Date of Entry of Judgement: Denied, June 29, 2000; Rehearing Denied

October 10, 2000

Occhicone v. State, 768 So. 2d 1037, 1039 (Fla. 2000)

Federal Petition for Writ of Habeas Corpus

United States District Court, Middle District of Florida

Docket Number: 8:01CV2136T27TGW

Case Caption: Occhicone v. Moore

Date of Entry of Judgement: Denied, March 31, 2005

Occhicone v. Moore, No. 8:01CV2136T27TGW, 2005 WL 1073936, at *1 (M.D.

Fla. Mar. 31, 2005), aff'd sub nom. Occhicone v. Crosby, 455 F.3d 1306 (11th

Cir. 2006)

Appeal from Denial of Federal Petition for Writ of Habeas Corpus

United States Court of Appeals, Eleventh Circuit

Docket Number: 05–12502

Case Caption: Occhicone v. Crosby

Date of Entry of Judgement: Denial Affirmed, July 14, 2006

Occhicone v. Crosby, 455 F.3d 1306, 1313 (11th Cir. 2006)

Petition for Writ of Certiorari

Supreme Court of the United States

Docket Number: 06-7160

Case Caption: Occhicone v. McDonough

Date of Entry of Judgement: Denied, January 8, 2007

Occhicone v. McDonough, 549 U.S. 1122, 127 S. Ct. 944, 945, 166 L. Ed. 2d

722 (2007)

Successive Motion for Postconviction Relief (Hurst Relief)

Circuit Court of the Sixth Judicial Circuit, Pasco County

Docket Number: 1986CF001355CFAWS

vii

Case Caption: Dominick Occhicone v. State of Florida

Date of Entry of Judgement: Denied, May 18, 2017

Unreported

Petition for Writ of Habeas Corpus (Hurst Relief)

Supreme Court of Florida

Docket Number: SC2017–1112

Case Caption: Occhicone v. State

Date of Entry of Judgement: Denied, January 30, 2018

Occhicone v. State, 235 So. 3d 299, 300 (Fla. 2018)

Petition for Writ of Certiorari

Supreme Court of the United States

Docket Number: 17-9497

Case Caption: Occhicone v. Florida

Date of Entry of Judgement: Denied, October 1, 2018

Occhicone v. Fla., 586 U.S. 863, 139 S. Ct. 181, 202 L. Ed. 2d 112 (2018)

Successive Motion for Postconviction Relief (Post Warrant)

Circuit Court of the Sixth Judicial Circuit, Pasco County

Docket Number: 1986CF001355CFAWS

Case Caption: Dominick Occhicone v. State of Florida

Date of Entry of Judgement: Denied, July 10, 2026

Unreported

Appeal from Denial of Successive Motion for Postconviction Relief (Post

Warrant)

Supreme Court of Florida

Docket Number: SC2026-1042

Case Caption: Occhicone v. State

Date of Entry of Judgement: Denied, July 21, 2026;

Occhicone v. State, 2026WL2097359 (Fla. 2026)

Complaint for Declaratory and Injunctive Relief

Pursuant to 42 U.S.C. § 1983

United States District Court, Northern District of Florida

Docket Number: 4:26-cv-00355-TKW-MAF

Case Caption: James Aren Duckett & Dominick Occhicone v. Ron DeSantis,

Governor or Florida, et.al

Pending: Filed July 23,2026

viii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................................................................... ii

LIST OF PARTIES ....................................................................................................... v

RELATED CASES ....................................................................................................... vi

TABLE OF CONTENTS .............................................................................................. ix

INDEX TO APPENDIX ................................................................................................ x

TABLE OF AUTHORITIES ......................................................................................... xi

PETITION FOR WRIT OF CERTIORARI .................................................................. 1

DECISION AND ORDER BELOW .............................................................................. 1

JURISDICTION............................................................................................................ 1

CONSTITUTIONAL PROVISIONS INVOLVED ........................................................ 1

STATEMENT OF THE CASE...................................................................................... 2

REASONS FOR GRANTING THIS PETITION .......................................................... 4

CONCLUSION ............................................................................................................ 32

INDEX TO APPENDIX

A. July 21, 2026 Florida Supreme Court Opinion

B. Florida Supreme Court Initial Brief on the Merits

C. Circuit Court Order Denying Relief

D. FDOC-FOIA logs

E. February 25, 2026 case management hearing transcript

F. February 19, 2026 Rule 3.852 Records hearing transcript

G. February 18, 2025 Florida Lethal Injection Protocols.

TABLE OF AUTHORITIES

Cases

Abdool v. Bondi, 141 So. 3d 529, 547–48 (Fla. 2014) ................................................. 17

Anderson v. State, 267 So. 2d 8 (Fla. 1972) ................................................................ 30

Asay v. State, 224 So. 3d 695 (Fla. 2017) .................................................................... 12

Atkins v. Virginia, 536 U.S. 304, 304, 122 S. Ct. 2242, 2243, 153 L. Ed. 2d 335

(2002) ........................................................................................................................ 25

Barwick v. State, 361 So. 3d 785, 794 (Fla. 2023) ................................................ 25, 29

Bates v. State, 416 So. 3d 312 (Fla. 2025) ................................................................... 12

Braddy v. State, 219 So. 3d 803 (Fla. 2017)................................................................ 12

Branch v. State, 236 So. 3d 981 (Fla. 2018) ................................................................ 12

Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 492–93, 74 S. Ct.

686, 691, 98 L. Ed. 873 (1954) ................................................................................... 9

Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083

(1955) .......................................................................................................................... 9

Bucklew v. Precythe, 587 U.S. 119, 150 (2019) ............................................................. 4

Chavez v. State, 132 So. 3d 826 (Fla. 2014) ................................................................ 12

City of Riviera Beach v. Barfield, 642 So.2d 1135, 1136 (Fla. 4th DCA 1994) .......... 15

Coker v. Georgia, 433 U.S. 584, 599, 97 S. Ct. 2861, 2869, 53 L. Ed. 2d 982 (1977). 26

Cole v. State, 392 So. 3d 1054 (Fla. 2024) ................................................................... 12

Dailey v. State, 383 So. 3d 782 (Fla. 2019) ................................................................. 12

Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 264–65, 142 S. Ct. 2228,

2262, 213 L. Ed. 2d 545 (2022) ......................................................................... 8-9, 16

Ford v. Wainwright, 477 U.S. 399, 400, 106 S. Ct. 2595, 2597, 91 L. Ed. 2d 335

(1986) ...................................................................................................... 11, 17, 29, 31

Furman v. Georgia, 408 U. S. 238 (1972) ................................................................... 30

Gray v. McAuliffe et al., No. 3:16-cv-982-HEH, ECF 21 (E.D. Va. Dec. 23, 2016)18-19

Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 13

(1979) ........................................................................................................................ 11

Gudinas v. State, 412 So. 3d at 714 (Fla. 2025) ......................................................... 28

Hamdi v. Rumsfeld, 542 U.S. 507, 529(2004) (quoting Mathews v. Eldridge, 424

U.S. 319, 335 (1976) ................................................................................................. 11

Harmelin v. Michigan, 501 U.S. 957, 995, 111 S. Ct. 2680, 2701, 115 L. Ed. 2d 836

(1991) ........................................................................................................................ 27

Heath v. Florida, cert denied, No. 25-6746, --- U.S. ----, 2026 WL 363902 (U.S.

February 10, 2026) .................................................................................................... iii

Heath v. State, 426 So. 3d 1253 (Fla. 2026) ................................................................ 12

Hutchinson v. State, 416 So. 3d 273 (Fla. 2025) ......................................................... 12

In Re Federal Bureau of Prisons’ Execution Protocol Cases, 1:19-mc-00145-TSC,

ECF 69-1 (D. DC Jan. 14, 2020) ......................................................................... 18-19

Jimenez v. State, 265 So. 3d 462 (Fla. 2018) .............................................................. 12

Jones v. State, 701 So. 2d 76 (Fla. 1997)..................................................................... 30

Jordan et al. v. Fisher et al., 3:15-cv-00295-HTW-LGI, ECF 310-18 (S.D. Miss. Jun.

4, 2025) ..................................................................................................................... 18

Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 2642, 171 L. Ed. 2d 525, as

modified (Oct. 1, 2008 .............................................................................................. 26

King v. State, --- So. 3d ---, 2026 WL 672101 (Fla. Mar. 10, 2026) ....................... iii, 12

Lightbourne v. McCollum, 969 So.2d 326, 332-333 (Fla. 2007) ................................. 15

Long v. State, 271 So. 3d 938 (Fla. 2019) .................................................................... 12

xii

Marbury v. Madison, 5 U.S. 137, 173–74, 2 L. Ed. 60 (1803) .................................... 20

Martin, 1:18-cv-4617, 2021 WL 1186749 at *5 (N.D. Ga. Mar. 30, 2021) ................. 18

Mathews v. Eldridge, 424 U.S. 319, 333 (1976)(quoting Armstrong v. Manzo, 380

U.S. 545, 552 (1965) ............................................................................................ 10,11

Minersville School Dist. v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940)

..................................................................................................................................... 9

Morrissey v. Brewer, 408 U.S. 471, 481 (1972) ........................................................... 11

Muhammad v. State, 132 So. 3d 176 (Fla. 2013)........................................................ 12

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950)................ 12

Nance v. Oliver et al., 1:20-cv-00107-JPB, ECF 132 (N.D. Ga. May 16, 2024) ......... 18

Occhicone v. State of Florida et al., --- So. 3d ---, 2026 WL (Fla. July 2026) .............. 3

Occhicone v. State, 2026WL2097359 (Fla. 2026) ........................................................ 25

Packingham v. North Carolina, 582 U.S. ––––, 137 S.Ct. 1730, 198 L.Ed.2d 273

(2017) ........................................................................................................................ 30

Parole Comm'n v. Lockett, 620 So. 2d 153, 154–55 (Fla. 1993) ................................. 17

Pizzuto v. Derrick, et al., 1:21-cv-00359-BLW, ECF 183-6 (D. Id. Mar. 25, 2025) .... 18

Pizzuto v. Tewalt, 136 F. 4th 855, 867-73 (9th Cir. 2025) .......................................... 17

Prado v. State, 108 So. 3d 558 (Fla. 2012) .................................................................. 12

Randolph v. State, 422 So. 3d 166 (Fla. 2025); ........................................................... 12

Rogers v. State, 409 So. 3d 1257 (Fla. 2025) ............................................................... 12

Roper v. Simmons, 543 U.S. 551, 551, 125 S. Ct. 1183, 1184, 161 L. Ed. 2d 1 (2005)

................................................................................................................................... 25

Ruiz et al., v. Texas Dep’t of Criminal Justice et. al., D-1-GN-22-007149, Travis

County District Court (Dec. 14, 2022) ..................................................................... 18

Schwab v. State, 969 So. 2d 318 (Fla. 2007) ............................................................... 12

xiii

Shevin v. Byron, Harless, Schaffer, Reid, and Associates, Inc., 379 So. 2d 633, 640

(1980) ........................................................................................................................ 14

Sims v. State, 753 So. 2d 66, 70 (Fla. 2000)................................................................ 15

Smithers v. Florida, 146 S. Ct. 323, 223 L. Ed. 2d 143 (2025).................................. 22

Smithers v. State, 420 So. 3d 460 (Fla.), cert. denied, ––– U.S. ––––, 146 S. Ct. 323,

223 L.Ed.2d 143 (2025) ............................................................................................ 23

Spencer v. Fla., No. 25-7648, 2026 WL 1827690 (U.S. June 25, 2026)................. iii, 23

Spencer v. State, No. SC2026-0880, 2026 WL 1757938, at *6 (Fla. June 18, 2026) . 23

Tanzi v. State, 407 So. 3d 385 (Fla. 2025) .................................................................. 12

Timbs v. Indiana, 586 U.S. 146, 156, 139 S. Ct. 682, 690, 203 L. Ed. 2d 11 (2019) . 30

Tompkins v. State, 994 So. 2d 1072 (Fla. 2008).......................................................... 12

Trotter v. Florida, 146 S. Ct. 755 (2026) ............................................................... 21, 23

Trotter v. Florida, 607 U.S. ___, Case No. 25-6853 (25A926) (Feb. 24, 2026) ........... 19

Trotter v. Florida, cert denied, No. 25-6853, --- U.S. ----, 2026 WL 504237 (U.S.

February 24, 2026) .................................................................................................... iii

Trotter v. State, --- So. 3d ---, 2026 WL 444544 (Fla. Feb. 17, 2026) ........................ 12

Valle v. State, 70 So. 3d 530 (Fla. 2011) ..................................................................... 12

Walls v. Dixon, No.4:25-cv-0488, ECF 1 (N.D. Fla. Nov. 26, 2025) ......................... 2, 4

Walls v. Florida, cert denied, No. 25-6357, --- U.S. ----, 2025 WL 3674295 (U.S.

December 18, 2025) ................................................................................................... iii

West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628

(1943) .......................................................................................................................... 9

Willacy v. State, --- So. 3d. ---, 2026 WL 1021168 (Fla. Apr. 15, 2026)....................... iii

xiv

Williams v. People of State of N.Y., 337 U.S. 241, 247, 69 S. Ct. 1079, 1083, 93 L. Ed.

1337 (1949) ..................................................................................................... 26,27,28

Woodson v. North Carolina, 428 U.S. 280, 281, 96 S. Ct. 2978, 2980, 49 L. Ed. 2d

944 (1976). ...................................................................................................... 11,26-27

Zakrzewski v. State, 415 So. 3d 203 (Fla. 2025) ........................................................ 12

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 1

§ 27.708(3), Fla. Stat.................................................................................................... 15

§ 27.7081, Fla. Stat. ..................................................................................................... 13

§ 119.01(a), Fla. Stat.................................................................................................... 13

§ 119.011(12), Fla. Stat................................................................................................ 13

§ 922.105(7), Fla. Stat.................................................................................................. 14

§ 945.10, Fla. Stat. ....................................................................................................... 16

Chapter 119, Fla. Stat. ........................................................................................... 13,15

Chapter 120, Fla. Stat. ................................................................................................ 14

Rules

Fla. R. Crim. P. 3.852 ............................................................................................. 13-14

Constitutional Provisions

Fla. Const. art. I, § 17. ................................................................................................. 22

Fla. Const. art. I, § 24 ............................................................................................. 12-13

Other Authorities

ASHP, Etomidate Injection (April 7, 2026) https://www.ashp.org/drugshortages/current-shortages/drug-shortagedetail.aspx?id=873&loginreturnUrl=SSOCheckOnly (Last accessed July 24, 2026) . 6

Bureau of Emergency Medical Services; Utah Department of Public Safety, Utah

EMS Medication Shortage Procedure, (July 1, 2026) https://ems.utah.gov/utah-emseducation-shortage-information/ (Last accessed July 24, 2026) , ................................ 7

Florida Office of the Attorney General, GOVERNMENT-IN-THE-SUNSHINE

MANUAL, A Reference For Compliance with Florida’s Public Records and Open

Meetings Laws, (2025 ed.)

p. 179-80. Downloadable PDF version is available at: Office of Attorney General,

James Uthmeier, Sunshine Manual,

myfloridalegal.com,

https://www.myfloridalegal.com/sites/default/files/government-in-thesunshine-manual.pdf

...................................................................................................................................... 16

Fresenius Kabi (December 20, 2022) https://www.fda.gov/media/164122/download

(Last accessed July 24, 2026) ........................................................................................ 7

Joseph Choi, Pharmaceutical Supply Chains Get Tangled in War with Iran, (March

29, 2026) https://thehill.com/policy/healthcare/5805149-iran-war-pharmaceuticalsupply-chain/ (Last accessed July 24, 2026) ................................................................ 5

LSD Law Legal Dictionary (March 2026) What is manifest injustice? simple

definition & meaning · LSD Law. Available at: https://definitions.lsd.law/manifestinjustice (Last Accessed July 2, 2026) ........................................................................ 10

Maya C. Wai, Drug Shortage and Ethical Issues: Integrating Multidisciplinary

Perspectives with a Shared Ethical Framework (September 2024)

https://pmc.ncbi.nlm.nih.gov/articles/PMC11417769/ (Last accessed July 24, 2026) . 6

Nicholas Jacobus, Top Drugs at Risk of Supply Shortages: Report, (April 22, 2026)

https://www.pharmexec.com/view/top-drugs-risk-supply-shortages-report (Last

accessed July 24, 2026). ................................................................................................. 6

Rachel Tyndale, Etomidate Mechanism of Action, Clinical Uses and Side Effects,

(August, 02, 2023) https://www.longdom.org/open-access/etomidate-mechanism-ofaction-clinical-uses-and-side-effects-101923.html (Last accessed July 24, 2026)....... 5

Report on the Department of Defense Pharmaceutical Supply Chain Risks,

(November 2023), https://www.warren.senate.gov/wpcontent/uploads/media/doc/FY23%20NDAA%20sec%20860%20Risk%20management

%20for%20DoD%20Pharmceuticals1.pdf (Last accessed July 24, 2026) ................. 4-5

SCIENCEINSIGHTS, What is the Standard Etomidate Dose for Intubation?

(November 26, 2025)https://scienceinsights.org/what-is-the-standard-etomidatedose-for-intubation/ (Last accessed July 24, 2026)...................................................... 7

Sofia Quaglia, 'An urgent public health crisis': Why so many people are struggling

to get medicine (October 22, 2025) https://www.bbc.com/future/article/20251021why-youre-having-trouble-getting-your-meds (Last accessed July 24, 2026) ............. 6

Synapse, What is Etomidate Used For?, (June 14,

2024)https://synapse.patsnap.com/article/what-is-etomidate-used-for (Last accessed

July 24, 2026) ................................................................................................................. 5

xvi

US Food & Drug Administration, Expiration Dates - Questions and Answers

(November 21, 2025) https://www.fda.gov/drugs/pharmaceutical-qualityresources/expiration-dates-questions-and-answers (Last accessed July 24, 2026) .... 8

USP, Addressing Strategic Constraints to Strengthen the US Medicine Supply Chain

(Apr. 7, 2026), https://www.usp.org/sites/default/files/usp/document/publicpolicy/vulnerable-medicines-list-2025.pdf (Last accessed July, 24, 2026) .................. 5

xvii

PETITION FOR WRIT OF CERTIORARI

Dominick Occhicone respectfully petitions for a writ of certiorari to review a

judgment of the Supreme Court of Florida.

DECISIONS AND ORDERS BELOW

The opinion of the FSC is attached as Appendix A. The order of the Sixth

Judicial Circuit of the State of Florida, Pasco County,(warrant court) is unpublished

and attached as Appendix C.

JURISDICTION

The judgment of the FSC was entered on July 21, 2026. This Court

has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment of the U.S. Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

The Fourteenth Amendment provides, in relevant part:

No State shall . . . deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

Dominck Occhicone (“Occhicone”) is scheduled to be executed on July 28th in

Florida State Prison by a Department of Corrections, who has neither acknowledged

nor refuted the documented use of etomidate, the first drug used in Florida’s lethal

injection protocol 1 with an expiration date of January 31, 2025 during the executions

of Kayle Bates on August 19, 2025; Curtis Windom on august 28, 2025; David Pittman

on September 17, 2025; and Victor Jones on September 30, 2025.

Due to redactions, only a glimpse of the drug logs was uncovered during Frank

Walls2 post-warrant litigation in November 2025, which provides documentation of

the three drugs used during Florida’s three-drug-protocol between January 1, 2025

and September 30, 2025. App. D. The drug logs documented Etomidate, Potassium

Acetate, Rocuronium, the three drugs used in the State of Florida’s lethal injection

protocol, as well as Sodium Chloride, Hydroxyzine, and Lidocaine Hydrochloride.

After Florida’s governor signed Petitioner’s warrant scheduling his execution,

Petitioner was prevented from obtaining additional records from FDOC regarding

their supply of etomidate during a well-documented ongoing shortage for the period

from February 18, 2025 through June 30, 2026. App. A.

Occhicone argued to Florida’s state courts that FDOC’s pattern of protocol

deviation caused reason for alarm, indicating the department of corrections had failed

to properly comply with their protocols especially during this shortage of a critical

life-saving medication creating a substantial risk they will also violate Petitioner’s

1 Florida Lethal Injection Protocols – App. G

2 Walls v. Dixon, No.4:25-cv-0488, ECF 1 (N.D. Fla. Nov. 26, 2025)

equal protection rights. FSC denied Petitioner’s claim for relief. Appendix A, Dominck

Occhicone v. State of Florida et al., --- So. 3d ---, 2026 WL (Fla. July 2026). This

petition follows.

[SPACE INTENTIONALLY LEFT BLANK]

REASONS FOR GRANTING THIS PETITION

OCCHICONE’S CASE PRESENTS AN EXTREME EXCEPTION TO

THE PRESUMPTION AGAINST JUDICIAL INTERVENTION IN

THE ELEVENTH HOUR BEFORE AN EXECUTION.

It is the role of the judiciary to ensure challenges to lawfully issued sentences

are resolved fairly and expeditiously. Bucklew v. Precythe, 587 U.S. 119, 150 (2019).

Occhicone raises a claim for judicial review which could not have been brought at an

earlier time. The limited records giving rise to Occhicone’s Fourteenth Amendment

concerns were only made public in late 2025 in Walls v. Dixon, No.4:25-cv-0488, ECF

1 (N.D. Fla. Nov. 26, 2025). Additionally, Occhicone could not have known the

ongoing etomidate shortage would still be a concern until his execution was scheduled

by the signing of his death warrant by Governor Ron DeSantis on June 26, 2026.

Therefore, it is not an attempt to manipulate the judicial branch to delay his

execution.

To distinguish his claims from prior claims raised in post warrant litigation in

Florida, in addition to raising his claims based on due process and equal protection

violations, Occhicone presented evidence regarding the ongoing shortage of etomidate,

which provides support for the plain reading of the Walls records and indicates a valid

claim he will not be treated the same as all inmates subjected to lethal injection

pursuant to the current protocols. The etomidate shortage has been an ongoing

concern for pharmacists, as well as the United States military. In the November 2023,

the United States Department of Defense published a report on the pharmaceutical

supply chain risks which considered the Food and Drug Administration and

American Society of Health System Pharmacists drug shortage databases, both of

which listed etomidate starting in October 2022. 3 US Pharmacopeia published a list

of vulnerable medicines due to ongoing supply concerns. Etomidate identified as an

essential medicine by the FDA/WHO, was on the shortage list as of February 2026,

but was carried over from the same list in 2024. 4 In March 2026, The Hill reported

on how the ongoing war with Iran has further added to the concerns over the shortage

of etomidate as one of the key countries being impacted by the closure of the Strait of

Hormuz is Jordan, which produces approximately half the world’s supply of

etomidate. 5

Etomidate is a short-acting intravenous anesthetic agent used to induce

general anesthesia and for sedation in critically ill patients. It has particular value

in emergency medicine and intensive care units due to its hemodynamic stability and

is specifically used for patients at risk of hypotension, it is preferred for use in rapid

sequence intubation procedures, 6 and is a valuable tool for anesthesiologists and

critical care physicians. 7 As of April 7, 2026, less than 13 weeks before Governor

3Report on the Department of Defense Pharmaceutical Supply Chain Risks, (November 2023),

https://www.warren.senate.gov/wpcontent/uploads/media/doc/FY23%20NDAA%20sec%20860%20Risk%20management%20for%20DoD

%20Pharmceuticals1.pdf (Last accessed July 24, 2026)

4USP, Addressing Strategic Constraints to Strengthen the US Medicine Supply Chain (Apr. 7, 2026),

https://www.usp.org/sites/default/files/usp/document/public-policy/vulnerable-medicines-list-2025.pdf

(Last accessed July, 24, 2026)

5Joseph Choi, Pharmaceutical Supply Chains Get Tangled in War with Iran, (March 29,

2026) https://thehill.com/policy/healthcare/5805149-iran-war-pharmaceutical-supply-chain/ (Last

accessed July 24, 2026)

6Synapse, What is Etomidate Used For?, (June 14, 2024) https://synapse.patsnap.com/article/what-isetomidate-used-for (Last accessed July 24, 2026)

7Rachel Tyndale, Etomidate Mechanism of Action, Clinical Uses and Side Effects, (August, 02, 2023)

https://www.longdom.org/open-access/etomidate-mechanism-of-action-clinical-uses-and-side-effects101923.html (Last accessed July 24, 2026)

DeSantis signed the execution warrant for Occhicone, the American Society of

Health-System Pharmacists reported an ongoing shortage of etomidate. 8

Pharmaceutical Executive also reported this shortage in its April 2026 issue, 9 The

results of pharmaceutical shortages have wide-reaching impacts across society, not

just for Occhicone. This shortage of a critical and beneficial drug creates ethical

issues based on overall human rights forcing physicians to allocate resources to the

individuals who will benefit most of the use of the available drugs. 10 “Doctors and

pharmaceutical experts have raised growing concerns about the shortages in recent

months. The American Medical Association has reiterated its concern drug shortages

are an "urgent public health crisis" and a threat to national security.” 11 As recently

as July 1, 2026, the Utah Bureau of Emergency Medical Services also reported on the

shortage of this critical medication. 12

The standard therapeutic dose for etomidate in adult patients is a range of 0.2

to 0.6 milligrams per kilogram of body weight and should be calculated and

8ASHP, Etomidate Injection (April 7, 2026) https://www.ashp.org/drug-shortages/current-

shortages/drug-shortage-detail.aspx?id=873&loginreturnUrl=SSOCheckOnly (Last accessed July 24,

2026)

9 Nicholas Jacobus, Top Drugs at Risk of Supply Shortages: Report, (April 22, 2026)

https://www.pharmexec.com/view/top-drugs-risk-supply-shortages-report (Last accessed July 24,

2026)

10Maya C. Wai, Drug Shortage and Ethical Issues: Integrating Multidisciplinary Perspectives with a

Shared Ethical Framework (September 2024)

11Sofia Quaglia, 'An urgent public health crisis': Why so many people are struggling to get medicine

(October 22, 2025) https://www.bbc.com/future/article/20251021-why-youre-having-trouble-gettingyour-meds (Last accessed July 24, 2026)

12Bureau of Emergency Medical Services; Utah Department of Public Safety, Utah EMS Medication

Shortage Procedure, (July 1, 2026) https://ems.utah.gov/utah-ems-education-shortage-information/

(Last accessed July 24, 2026)

administered by trained professionals who can properly evaluate adjustments based

on specific patient considerations, such as the elderly or individuals with certain

medical conditions. 13 The protocols require the administration of a 200mg dose of

etomidate without regard to the weight of the individual involved, which is the

equivalent dosage for an approximately 350 pound person. Rather than using this

critically important medication as it was intended to be used to sedate people who

need lifesaving medical procedures, the state is implementing a manifest injustice on

the people of the State of Florida by not only continuing to use etomidate in this

manner, but also to do so in such large quantities and at such an incredible and

unprecedented rate.

Considering the ongoing shortage, it is unconscionable for FDOC to proceed

considering the quantity of the etomidate used for executions and the pace of death

warrants in Florida. When there has been emergency use authorization14 for the use

of etomidate after its expiration date, it has only been extended by six months, 1516

which was exceeded by FDOC in these executions. The Federal Drug Administration

requires manufacturers to provide data regarding the shelf-life of their medications,

as well as expiration dates so the public is guaranteed the medications being

administered have not degraded to the point of not providing the intended benefit or

13SCIENCEINSIGHTS, What is the Standard Etomidate Dose for Intubation? (November 26,

2025)https://scienceinsights.org/what-is-the-standard-etomidate-dose-for-intubation/ (Last accessed

July 24, 2026)

14Utah EMS Medication Shortage Information, supra at 11

15Fresenius Kabi (December 20, 2022) https://www.fda.gov/media/164122/download (Last accessed

July 24, 2026)

16Utah EMS Medication Shortage Information, supra at 11

causing unintended side effects. 17 Without being able to further investigate the drugs

to be used in his execution, Occhicone has reason to assert his equal protection rights

will be violated by the use of extremely expired etomidate during his execution.

This Court has the ability and responsibility to intervene and correct this

manifest injustice. There are exceptions to the law of the case and stare decisis which

apply to the facts and circumstances surrounding the pending execution of Occhicone,

as well as the other inmates scheduled for execution in Florida. In Dobbs v. Jackson

Women's Health Org., 597 U.S. 215, 264–65, 142 S. Ct. 2228, 2262, 213 L. Ed. 2d 545

(2022), this Court said:

And it restrains judicial hubris and reminds us to respect the judgment

of those who have grappled with important questions in the past.

“Precedent is a way of accumulating and passing down the learning of

past generations, a font of established wisdom richer than what can be

found in any single judge or panel of judges.” N. Gorsuch, A Republic, If

You Can Keep It 217 (2019).

1617 We have long recognized, however, that stare decisis is “not an

inexorable command,” Pearson v. Callahan, 555 U.S. 223, 233, 129 S.Ct.

808, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted), and it

“is at its weakest when we interpret the Constitution,” Agostini v. Felton,

521 U.S. 203, 235, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). It has been

said that it is sometimes more important that an issue “ ‘be settled than

that it be settled right.’ ” Kimble, 576 U.S. at 455, 135 S.Ct. 2401

(quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct.

443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting)). But when it comes

to the interpretation of the Constitution—the “great charter of our

liberties,” which was meant “to endure through a long lapse of ages,”

Martin v. Hunter's Lessee, 1 Wheat. 304, 326, 14 U.S. 304, 4 L.Ed. 97

17US Food & Drug Administration, Expiration Dates - Questions and Answers (November 21, 2025)

https://www.fda.gov/drugs/pharmaceutical-quality-resources/expiration-dates-questions-and-answers

(Last accessed July 24, 2026)

(1816) (opinion for the Court by Story, J.)—we place a high value on

having the matter “settled right.” In addition, when one of our

constitutional decisions goes astray, the country is usually stuck with

the bad decision unless we correct our own mistake. An erroneous

constitutional decision can be fixed by amending the Constitution, but

our Constitution is notoriously hard to amend. See Art. V; Kimble, 576

U.S. at 456, 135 S.Ct. 2401. Therefore, in appropriate circumstances we

must be willing to reconsider and, if necessary, overrule constitutional

decisions.

This Court went on to say it doesn’t require a change “during the intervening period

other than the Court’s belated recognition that its earlier decision had been seriously

wrong,” when discussing the overruling of Minersville School Dist. v. Gobitis, 310 U.S.

586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940), after only three years in West Virginia Bd.

of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Id. at 2263.

Although simply correcting earlier egregious decisions can be sufficient to

overlook stare decisis, there is also historical precedent for considering public policy

when determining whether to look past the law of the case. In Brown v. Bd. of Ed. of

Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 492–93, 74 S. Ct. 686, 691, 98 L. Ed. 873

(1954), supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294,

75 S. Ct. 753, 99 L. Ed. 1083 (1955), this Court determined a proper interpretation of

the Fourteenth Amendment did not require

turn[ing] the clock back to 1868 when the Amendment was adopted, or

even to 1896 when Plessy v. Ferguson was written. We must consider

public education in the light of its full development and its present place

in American life throughout *493 the Nation. Only in this way can it be

determined if segregation in public schools deprives these plaintiffs of

the equal protection of the laws.

In this case the ongoing worldwide shortage of etomidate creates a valid and

important public policy reason for this Court to step in and correct the manifest

injustice which continues to occur in Florida where executions are being carried out

at an unprecedented pace using massive dosages of a critical medication which could

be used to save lives rather than end them.

The circuit court’s decision to prohibit Occhicone from a full investigation into

the drugs to be used for his lethal injection further violates the Fourteenth

Amendment, as all prisoners being executed by the State of Florida are entitled to be

treated the same, as well as be guaranteed FDOC is following its self-imposed

protocols, rather than being differentiated between in arbitrary and capricious

manners by being given different drugs, whether those differences are the drugs

injected, the amounts of the drugs injected, or expired drugs being injected. This

prohibition results in a manifest injustice which “shocks the conscience,” and

demands correction. 18

Occhicone is entitled to due process of law as established by the Fourteenth

Amendment to the United States Constitution. “The fundamental requirement of due

process is the opportunity to be heard ‘at a meaningful time and in a meaningful

manner’.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)(quoting Armstrong v. Manzo,

380 U.S. 545, 552 (1965)). Because Occhicone has been denied access to the records

he demanded, his ability to present additional evidence of the State’s violation of his

equal protection and due process rights, based on the use of expired etomidate during

18LSD Law Legal Dictionary (March 2026) What is manifest injustice? simple definition & meaning ·

LSD Law. Available at: https://definitions.lsd.law/manifest-injustice (Last Accessed July 2, 2026)

multiple executions as shown in the Walls’ records, his due process rights have been

violated. “[T]he process due in any given instance is determined by weighing ‘the

private interest that will be affected by the official action against the Government’s

asserted interest, ‘including the function involved’ and the burdens the Government

would face in providing greater process.” Hamdi v. Rumsfeld, 542 U.S. 507, 529(2004)

(quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). “It is axiomatic that due

process is flexible and calls for such procedural protection as the situation demands.”

Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 13

(1979) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

The trial court abused its discretion in denying Occhicone’s demand for

additional public records pursuant to Rule 3.852, Florida Rules of Criminal Procedure,

and in summarily denying his claims without conducting an evidentiary hearing to

allow Occhicone to present witnesses and evidence in support of his equal protection

claim. It has long been recognized “execution is the most irremediable and

unfathomable of penalties; that death is different.” Ford v. Wainwright, 477 U.S. 399,

411 (1986) (citing Woodson v. North Carolina, 428 U.S. 280, 305 (1976)). This

distinction is nowhere more critical than on the verge of executing an almost 81-yearold man using etomidate, when there are known shortages of this drug combined with

the evidence of ongoing maladministration by FDOC of their protocols involving the

exact same drug. The process which has been afforded to Occhicone by the State of

Florida is nothing more than a mere gesture and performative at best. Occhicone was

foreclosed from proper review of his postconviction claim for relief because the state

courts foreclosed any avenue for redress. Simply providing a system where Occhicone

can file public records demands or successive motions is meaningless when he is

denied meaningful access to records to support such a motion. “…[p]rocess which is a

mere gesture is not due process.” Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 315 (1950). Occhicone is the latest, in a long line of Florida death row

inmates, who has been denied access to the public records related to the current

protocols in violation of their due process and equal protection rights, not to mention

Florida law. 19

It is axiomatic the State has claimed Occhicone is asking the courts to

intervene and micromanage issues within the control of FDOC, when it is actually

the FSC which has consistently intervened in matters exclusively granted to the

legislature in by Fla. Const. art. I, § 24 which states:

(a) Every person has the right to inspect or copy any public record made

or received in connection with the official business of any public body,

officer, or employee of the state, or persons acting on their behalf,

except with respect to records exempted pursuant to this section or

specifically made confidential by this Constitution. This section

specifically includes the legislative, executive, and judicial branches

of government and each agency or department created thereunder;

counties, municipalities, and districts; and each constitutional

19 See, King v. State, --- So. 3d ---, 2026 WL 672101 (Fla. Mar. 10, 2026); Trotter v. State,

--- So. 3d ---,

2026 WL 444544 (Fla. Feb. 17, 2026); Heath v. State, 426 So. 3d 1253 (Fla. 2026); Randolph v. State,

422 So. 3d 166 (Fla. 2025); Bates v. State, 416 So. 3d 312 (Fla. 2025); Zakrzewski v. State, 415 So. 3d

203 (Fla. 2025); Rogers v. State, 409 So. 3d 1257 (Fla. 2025); Tanzi v. State, 407 So. 3d 385 (Fla. 2025);

Hutchinson v. State, 416 So. 3d 273 (Fla. 2025); Cole v. State, 392 So. 3d 1054 (Fla. 2024); Dailey v.

State, 383 So. 3d 782 (Fla. 2019); Long v. State, 271 So. 3d 938 (Fla. 2019); Jimenez v. State, 265 So.

3d 462 (Fla. 2018); Branch v. State, 236 So. 3d 981 (Fla. 2018); Asay v. State, 224 So. 3d 695 (Fla.

2017); Braddy v. State, 219 So. 3d 803 (Fla. 2017); Chavez v. State, 132 So. 3d 826 (Fla. 2014);

Muhammad v. State, 132 So. 3d 176 (Fla. 2013); Prado v. State, 108 So. 3d 558 (Fla. 2012); Valle v.

State, 70 So. 3d 530 (Fla. 2011); Tompkins v. State, 994 So. 2d 1072 (Fla. 2008); Schwab v. State, 969

So. 2d 318 (Fla. 2007)

officer, board, and commission, or entity created pursuant to law or

this Constitution.

…

provide by general law passed by a two-thirds vote of each house for

the exemption of records from the requirements of subsection (a) and

the exemption of meetings from the requirements of subsection (b),

provided that such law shall state with specificity the public

necessity justifying the exemption and shall be no broader than

necessary to accomplish the stated purpose of the law. The

legislature shall enact laws governing the enforcement of this section,

including the maintenance, control, destruction, disposal, and

disposition of records made public by this section, except that each

house of the legislature may adopt rules governing the enforcement

of this section in relation to records of the legislative branch. Laws

enacted pursuant to this subsection shall contain only exemptions

from the requirements of subsections (a) or (b) and provisions

governing the enforcement of this section, and shall relate to one

subject.

Although the State of Florida has a broad directive from the Florida

Constitution, followed by Chapter 119, Florida Statutes, granting every person the

right to access the public records of the State, the FSC has restricted this right for

postconviction

capital

defendants

through

its

implementation

and

later

interpretation of Fla. R. Crim. P. 3.852, which was originally modeled on the language

created by the Florida legislature in Fla. Stat. § 27.7081. Fl. Stat. § 119.01(a), states,

“General state policy on public records,” which provides “[i]t is the policy of this state

that all state, county, and municipal records are open for personal inspection and

copying by any person.” It goes on to say: “Providing access to public records is a duty

of each agency.” Id. The records Occhicone sought are clearly public records under §

119.011(12), Florida Statutes, which defines a public record as all documents and

records, regardless of form, “made or received pursuant to law or ordinance or in

connection with the transaction of official business by any agency” including “any

material prepared in connection with official business which is intended to perpetuate,

communicate, or formalize knowledge of some type.” Shevin v. Byron, Harless,

Schaffer, Reid, and Associates, Inc., 379 So. 2d 633, 640 (1980).

In § 922.105(7), Fla. Stat., the Florida Legislature delegated the creation of

procedures for the execution of inmates sentenced to death by lethal injection to

FDOC, rather than creating procedures within the Administrative Procedures Act in

Chapter 120, Florida Statutes. This procedure forces Occhicone to raise any concerns

about his equal protection rights in court pursuant to Fla. R. Crim. Proc. 3.852, where

he has been denied access to the additional records he has requested, despite neither

the state nor FDOC refuting Occhicone’s allegations. Based on these errors,

Occhicone has clearly established his entitlement to the records demanded from

FDOC regarding violations of his constitutionally protected equal protection rights.

The requirements for a demand for additional public records are set forth in Rule

3.852(i)(1), Fla. R. Crim. P., which requires capital postconviction counsel to file an

affidavit which:

(A) attests that collateral counsel has made a timely and diligent search

of the records repository; and

(B) identifies with specificity those public records not at the records

repository; and

the subject matter of the postconviction proceeding or are reasonably

calculated to lead to the discovery of admissible evidence; and

(D) shall be served in accord with subdivision (c)(1) of this rule.

There is no language in this rule, of any of the statutes implemented by the Florida

Legislature that there a requirement for Occhicone, or any defendant, to establish a

“colorable claim” as argued by FDOC in its objection to production of the records or

the trial court and FSC in their denial of his demand. The plain language of the rule

only requires Occhicone to establish 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 imposed by the trial court of a colorable claim which

was established by the FSC which held:

The language of section 119.19 and of rule 3.852 clearly provides for the

production of public records after the governor has signed a death

warrant. However, it is equally clear that this discovery tool is not

intended to be a procedure authorizing a fishing expedition for records

unrelated to a colorable claim for postconviction relief.

Sims v. State, 753 So. 2d 66, 70 (Fla. 2000). Later the FSC recognized the public

records act “is to be construed liberally in favor of openness, and all exemptions from

disclosure

are

to be construed narrowly

and

limited

their

designated

purpose.” Lightbourne v. McCollum, 969 So.2d 326, 332-333 (Fla. 2007), quoting City

of Riviera Beach v. Barfield, 642 So.2d 1135, 1136 (Fla. 4th DCA 1994).

Based on the plain language of the Florida Constitution, Chapter 119, Florida

Statutes, and § 27.708(3), Fla. Stat., it is clear the Florida Legislature intended for

capital postconviction inmates to have full access to the same public records any other

person would be entitled to receive. The FDOC records Occhicone requested fall

under the well-established public policy in the State of Florida of having an open and

transparent government. “The law provides any member of the public access to public

records, whether he or she be the most outstanding civic citizen or the most heinous

criminal.” 20 Considering the overreaching by the FSC to put further restrictions on

Occhicone’s right to meaningful access to the courts, the FSC has substituted its

beliefs for those of the legislative bodies. This Court has held:

courts cannot “substitute their social and economic beliefs for the

judgment of legislative bodies.” Ferguson, 372 U.S. at 729–730, 83 S.Ct.

1028; see also Dandridge v. Williams, 397 U.S. 471, 484–486, 90 S.Ct.

1153, 25 L.Ed.2d 491 (1970); United States v. Carolene Products Co., 304

U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). That respect for a

legislature's judgment applies even when the laws at issue concern

matters of great social significance and moral substance. See, e.g., Board

of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 365–368, 121 S.Ct.

955, 148 L.Ed.2d 866 (2001) (“treatment of the disabled”); Glucksberg,

521 U.S., at 728, 117 S.Ct. 2258 (“assisted suicide”); San Antonio

Independent School Dist. v. Rodriguez, 411 U.S. 1, 32–35, 55, 93 S.Ct.

1278, 36 L.Ed.2d 16 (1973) (“financing public education”).

Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 300, 142 S. Ct. 2228,

2284, 213 L. Ed. 2d 545 (2022)

Even considering the narrow exemption created by the Florida Legislature

in § 945.10, Fla. Stat. which exempts disclosure of:

Information or records that identify or could reasonably lead to the

identification of any person or entity that participates in, has

participated in, or will participate in an execution, including persons

or entities administering, compounding, dispensing, distributing,

maintaining, manufacturing, ordering, preparing, prescribing,

providing, purchasing, or supplying drugs, chemicals, supplies, or

equipment necessary to conduct an execution in compliance with

chapter 922.

2047, Florida Office of the Attorney General, GOVERNMENT-IN-THE-SUNSHINE MANUAL, A

Reference For Compliance with Florida’s Public Records and Open Meetings Laws, (2025 ed.)

p. 179-80. Downloadable PDF version is available at: Office of Attorney General, James Uthmeier,

Sunshine Manual,

myfloridalegal.com, https://www.myfloridalegal.com/sites/default/files/government-in-thesunshine-manual.pdf

The plain meaning of the statute shows that the Florida legislature did not intend

to prevent all access to records related to lethal injection, but rather only any

information leading to the identity of individuals or entities involved in the lethal

injection process. Occhicone does not seek any identifying information and agrees

any such information could and should be redacted according to the statute.

The separation of powers set forth in the Florida Constitution has long been

recognized in both the FSC and this Court

As previously noted, article II, section 3, of the Florida Constitution

provides that “[n]o person belonging to one branch shall exercise any

powers appertaining to either of the other branches unless expressly

provided herein.” This provision encompasses two fundamental *548

prohibitions. See Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260,

264 (Fla.1991). The first is that no branch may encroach upon the

powers of another. Id. The second is that no branch may delegate to

another branch its constitutionally assigned power. Id. However, the

separation of powers doctrine does not contemplate that every

governmental activity must be classified as belonging exclusively to a

single branch. See State v. Johnson, 345 So.2d 1069, 1071 (Fla.1977).

Rather, a branch of government is prohibited from the exercise of power

that has been constitutionally assigned exclusively to another branch.

State v. Palmer, 791 So.2d 1181, 1183 (Fla. 1st DCA 2001), rev. denied,

817 So.2d 849 (Fla.2002).

Abdool v. Bondi, 141 So. 3d 529, 547–48 (Fla. 2014). See also Parole Comm'n v.

Lockett, 620 So. 2d 153, 154–55 (Fla. 1993); Ford v. Wainwright, 477 U.S. 399, 400,

106 S. Ct. 2595, 2597, 91 L. Ed. 2d 335 (1986).

The records Occhicone sought from FDOC are certainly capable of being

produced in response to lethal injection claims. See Pizzuto v. Tewalt, 136 F. 4th 855,

867-73 (9th Cir. 2025) (affirming district court’s orders requiring Idaho Department

of Corrections to share various pieces of information related to drug quality, including

types and location of sources, and dates associated with purchase orders and testing

results); Martin, 1:18-cv-4617, 2021 WL 1186749 at *5 (N.D. Ga. Mar. 30, 2021)

(ordering Georgia Department of Corrections to disclose information about how

chemicals were “created, stored, and transported” because the prisoner was

“attacking the potency of Georgia’s compounded pentobarbital.”). In Martin,

operating under a similar secrecy statute which protects the identity of execution

suppliers, a compounding pharmacist involved in executions was deposed after the

district court balanced Georgia’s interest in “enforce[ing] its laws” against the “basic

presumption…that the public is entitled to every person’s evidence.” Id. at *2, *9.

In other states, similar information has become part of the case record without

incident. See Jordan et al. v. Fisher et al., 3:15-cv-00295-HTW-LGI, ECF 310-18 (S.D.

Miss. Jun. 4, 2025) (witness’ chronology of Mississippi execution in the public record);

Pizzuto v. Derrick, et al., 1:21-cv-00359-BLW, ECF 183-6 (D. Id. Mar. 25, 2025) (chain

of custody of Idaho lethal injection drugs in the public record); Nance v. Oliver et al.,

1:20-cv-00107-JPB, ECF 132 (N.D. Ga. May 16, 2024) (transcripts of depositions of

Georgia execution team members in the public record); Petitioners’ Original Verified

Petition and Application for Temporary Injunction, Declaratory Relief, and

Permanent Injunction, Ruiz et al., v. Texas Dep’t of Criminal Justice et. al., D-1-GN22-007149, Travis County District Court (Dec. 14, 2022) (lab testing results, drug

logs, and purchase order forms of Texas lethal injection drugs in the public record);

In re Federal Bureau of Prisons’ Execution Protocol Cases, 1:19-mc-00145-TSC, ECF

69-1 (D. DC Jan. 14, 2020) (certificate of analysis of federal government’s supply of

compounded pentobarbital in the public record); Gray v. McAuliffe et al., No. 3:16-cv982-HEH, ECF 21 (E.D. Va. Dec. 23, 2016) (lethal injection drug labels, certificate of

analyses, and package inserts for Virginia lethal injection drugs in the public record).

Considering authority from other jurisdictions, and Florida’s continued refusal

to allow legitimate due process, this Court’s intervention is paramount. It has only

been after full and fair hearings, with presentation of witnesses and evidence, courts

have taken action to force compliance with properly drafted and administered

regulations and protocols. Occhicone has raised valid and concerning due process and

equal protection claims, but Florida is foreclosing record access and factual

development. Summarily denying Occhicone’s claims violates his right to due process

and access to the courts under the Fourteenth Amendments to the United States

Constitution and the corresponding provisions of the Florida Constitution.

The Walls records indicate FDOC is practicing its lethal injection protocol in

an ad hoc manner, devoid of uniformity in treatment and specifically indicating the

use of expired etomidate, Occhicone has a constitutional right pursuant to the Equal

Protection Clause of the Fourteenth Amendment as selectively incorporated into

state application. Occhicone’s claim applies to the actions of a state agency and

legitimately effects the way he will be put to death. As recently as March 2026,

Justice Sotomayor issued a statement connected to the United States’ Supreme

Court’s denial of certiorari in Trotter v. Florida, 607 U.S. ___, Case No. 25-6853

(25A926) (Feb. 24, 2026) (Sotomayor, J., respecting the denial of the application for

stay of execution and denial of certiorari), regarding the concerns raised by the

limited records by Walls, saying:

The record reflects at least the possibility that recent Florida

executions have involved—in addition to expired drugs—incorrect drug

doses, the use of nonprotocol drugs, and recordkeeping lapses that could

mask yet additional failings. The Florida Supreme Court, moreover,

has thus far not allowed further inquiry into these potential problems

and has recently denied requests for records that would prove or

disprove claims like Trotter’s. See, e.g. Heath ___ S.3d. at ____. It has

affirmed the denial of requests for records on these issues, at least in

part, because the prisoners do not yet have enough information to raise

a “colorable” Eighth Amendment claim. Ibid. the very reason the

prisoners are seeking the records, however, is to gather enough

information to raise a colorable Eighth Amendment claim. (footnote

excluded).

For over two centuries, this Court has been vested with

the whole judicial power of the United States in one supreme court, and

such inferior courts as congress shall, from time to time, ordain and

establish. This power is expressly extended to all cases arising under

the laws of the United States; and consequently, in some form, may be

exercised over the present *174 case; because the right claimed is given

by a law of the United States.

Marbury v. Madison, 5 U.S. 137, 173–74, 2 L. Ed. 60 (1803)

And the courts of our nation have been bound by the United States Constitution

to find a “law repugnant to the constitution is void; and that courts, as well as other

departments, are bound by that instrument. Id.

It is a settled and invariable principle, that every right, when withheld,

must have a remedy, and every injury its proper redress. 3 Bl. com. 109.

There are some injuries which can only be redressed by a writ of

mandamus, and others by a writ of prohibition. There must then be a

jurisdiction some where competent to issue that kind of process. Where

are we to look for it but in that court which the constitution and laws

have made supreme, and to which they have given appellate

jurisdiction? Blackstone, vol. 3, p. 110

Id. at 147.

Denying access to these records is problematic because there is no way for

anyone to ever challenge FDOC’s actions based on this “Catch-22” lethal injection

protocol loop. See Trotter v. Florida, 146 S. Ct. 755, 756 (2026) (Justice Sotomayor’s

Statement regarding the denial of the application for a stay of execution).

Accordingly, Florida’s public records litigation process for capital postconviction

inmates amounts to no process at all.

Occhicone respectfully requests this Court to enter a stay, reverse the lower

court’s ruling and remand with instructions to grant the additional records request

and allow for full factual development of his claims.

II.

THE STATE OF FLORIDA’S CONTENTION THERE IS NO

DISTINCTION BETWEEN CATEGORICAL AND AS-APPLIED

CHALLENGES

VIOLATIVE

OCCHICONE’S

CONSTITUTIONAL RIGHTS UNDER THE EIGHTH AND

FOURTEENTH AMENDMENTS

Occhicone presents this Court with a question only this Court can resolve.

Occhicone has been denied his Eighth Amendment rights against cruel and unusual

punishment despite having exhausted all remedies in state court. Occhicone has not

asserted his sentence is prohibited by the Eighth Amendment based on being in a

“class” of elderly people. Rather, the issue is the execution of the death sentence upon

Occhicone, after nearly four decades on death row, would constitute cruel and

unusual punishment based on his individual age and condition, as he is nearing 81

years old.

a. Procedural History of Old Age Related Claims in Florida

In litigating age-related claims, the FSC has consistently ruled that categorical

exemptions to the death penalty are ruled by the Conformity Clause of the Florida

Constitution (“Conformity Clause”):

Excessive punishments.—Excessive fines, cruel and unusual

punishment, attainder, forfeiture of estate, indefinite imprisonment,

and unreasonable detention of witnesses are forbidden. The death

penalty is an authorized punishment for capital crimes designated by

the legislature. The 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. Any method of execution shall be allowed, unless

prohibited by the United States Constitution. Methods of execution may

be designated by the legislature, and a change in any method of

execution may be applied retroactively. A sentence of death shall not be

reduced on the basis that a method of execution is invalid. In any case

in which an execution method is declared invalid, the death sentence

shall remain in force until the sentence can be lawfully executed by any

valid method. This section shall apply retroactively.

Fla. Const. art. I, § 17. (Emphasis added).

Similar age-related claims were raised in the post warrant litigation of Samuel

Smithers, Melvin Trotter, and Dusty Ray Spencer. In Smithers it was argued those

over the age of 65 should be exempt from execution. Smithers v. State, 420 So. 3d 460,

465 (Fla.), cert. denied sub nom. Smithers v. Florida, 146 S. Ct. 323, 223 L. Ed. 2d

143 (2025). The FSC in Smithers did not consider the issue on the merits of whether

executing the elderly is inconsistent with the evolving standards of decency or

whether executing the elderly violates federal and state constitutional prohibitions

against cruel and unusual punishment where the executions do not have a deterrent

or a retributive purpose because they found the Smithers claim to be untimely,

procedurally barred, and foreclosed by the conformity clause. The FSC affirmed the

circuit court’s ruling that Smithers, who was 72 at the time of his execution, could

and should have raised his claim when he was 65. Id.

While Smithers is correct that he could not have known exactly when

his death warrant would be signed, he has known for several years that

upon the signing of his death warrant and the exhaustion of any related

successive postconviction process, he would fall within the class of

individuals that he now seeks to exempt from execution due to advanced

age.

Id. Because they found the claim to be time barred; the court did not determine the

case on its merits. Id. Samuel Smithers was executed by the state on October 14, 2025.

Because the claim was not ruled upon its merits, Melvin Trotter attempted to

revive it. Since Trotter turned 65 mere weeks before his execution warrant was signed,

Trotter’s claim was timely and could not be procedurally barred. Trotter argued

imposition of his death sentence at 65 years of age offends the evolving standards of

decency and constitutes cruel and unusual punishment. The FSC denied the claim,

relying on its holding in Smithers v. State, 420 So. 3d 460 (Fla.), cert. denied, ––– U.S.

––––, 146 S. Ct. 323, 223 L.Ed.2d 143 (2025) and declined to expand the prohibition

against cruel and unusual punishment to include the class of individuals 65 years of

age and older. Trotter v. State, 428 So. 3d 68, 71 (Fla.), cert. denied sub nom. Trotter

v. Florida, 146 S. Ct. 755 (2026). Melvin Trotter was executed by the state on

February 24, 2026.

Months later, Dusty Ray Spencer, who was 74, also asked the Florida courts to

recognize a categorical exemption from execution based on advanced age. Spencer v.

State, No. SC2026-0880, 2026 WL 1757938, at *6 (Fla. June 18, 2026), cert. denied

sub nom. Spencer v. Fla., No. 25-7648, 2026 WL 1827690 (U.S. June 25, 2026). The

FSC denied his claim as untimely because he did not raise the claim until nearly a

decade after reaching the age at which he contended a categorical exemption from

execution should apply, that age being 65. Id. The FSC also ruled that the claim was

prohibited by the above Conformity Clause:

We have explained that the Supreme Court's interpretation of the

Eighth Amendment is both the floor and the ceiling for protection from

cruel and unusual punishment in Florida… No decision from the

Supreme Court has read the Eighth Amendment as categorically

exempting defendants of advanced age from execution, and we are not

about to create one now. Spencer is thus foreclosed from relief on this

basis.

Id. Dusty Ray Spencer was executed by the State of Florida on June 25, 2026, making

him the oldest man to ever be executed in the state. 21

The claims in Smithers, Trotter, and Spencer were all based on a categorical

bar to execution of those 65 and older. Each claim was denied based on the FSC’s

position that categorical exemptions to the Eighth Amendment are the purview of the

Supreme Court of the United States and thus barred by the Conformity Clause.

Occhicone’s claim can be distinguished from the cases above. Occhicone seeks Eighth

Amendment relief from execution based on his individual age and condition, he does

not seek a categorical bar to the execution of those 65 and above. Because he does not

21 Dusty Ray Spencer is no longer the oldest man executed in the State of Florida.

That title goes to Dennis Sochor who was subsequently executed by the state on July

14, 2026. Sochor, also 74, was 12 days older that Spencer and outlived him by 19 days.

If executed on July 28, the record will pass to Occhicone of being the oldest man

executed in Florida and the second oldest executed in the United States.

argue a categorical bar based on age, the FSC precedent in Smithers, Trotter, and

Spencer does not apply.

A ruling on Occhicone’s claim does not require the creation of a new class

exempt from execution. Nor does it conclusory exempt any other elderly person from

execution. Faced with that distinction the FSC ruled:

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 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 Florida. Barwick v. State, 361 So. 3d 785,

794 (Fla. 2023).

Occhicone v. State, 2026WL2097359 (Fla. 2026)(emphasis added)(App. A). However,

there is a very real difference between categorical and as-applied challenges to the

Eighth Amendment. Categorical challenges effectively block punishment for a group

or class, regardless of individual facts and circumstances, creating a bright-line rule

for exemption, such as the rule proposed by Spencer, Trotter, and Smithers, that those

over the age of 65 should not be executed. (See Roper v. Simmons, 543 U.S. 551, 551,

125 S. Ct. 1183, 1184, 161 L. Ed. 2d 1 (2005), in which it was held the Eighth and

Fourteenth Amendments forbid imposition of the death penalty on offenders who

were under the age of 18 when their crimes were committed; Atkins v. Virginia, 536

U.S. 304, 304, 122 S. Ct. 2242, 2243, 153 L. Ed. 2d 335 (2002) in which it was held

executions of mentally retarded criminals are “cruel and unusual punishments”

prohibited by the Eighth Amendment). As-applied challenges evaluate whether a

particular sentence is grossly disproportionate or cruel when applied to a specific

individual, as is Occhicone’s contention, and often rely on the proportionality of the

crime to the punishment. (See Coker v. Georgia, 433 U.S. 584, 599, 97 S. Ct. 2861,

2869, 53 L. Ed. 2d 982 (1977), holding a death sentence was unconstitutionally

excessive as-applied to a defendant convicted of rape of an adult woman where the

crime did not result in death; Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641,

2642, 171 L. Ed. 2d 525, as modified (Oct. 1, 2008), opinion modified on denial of reh'g,

554 U.S. 945, 129 S. Ct. 1, 171 L. Ed. 2d 932 (2008), holding the death penalty was

not constitutional as-applied to the crime of rape of a child when the crime did not

intend to, nor result in, the death of the victim).

b. Florida’s Failure to Distinguish Between Categorical and

As-Applied Challenges Denies Defendants the Right to

Individualized Sentencing Guaranteed in Capital Cases

Florida’s sudden erasure of this well-established legal distinction is

confounding and precludes Occhicone from a ruling on the true merits of his claim.

Rejection of as-applied challenges goes against the individualized capital sentencing

doctrine of this Court’s death penalty jurisprudence. This Court has long upheld the

philosophy that “the punishment should fit the offender and not merely the crime.”

Williams v. People of State of N.Y., 337 U.S. 241, 247, 69 S. Ct. 1079, 1083, 93 L. Ed.

1337 (1949). A capital sentence is cruel and unusual under the Eighth Amendment if

it is imposed without an individualized determination that the punishment is

“appropriate”—whether or not the sentence is “grossly disproportionate.” Harmelin

v. Michigan, 501 U.S. 957, 995, 111 S. Ct. 2680, 2701, 115 L. Ed. 2d 836 (1991).

The respect for human dignity underlying the Eighth Amendment, Trop

v. Dulles, supra, 356 U.S. at 100, 78 S.Ct. at 597 (plurality opinion),

requires consideration of aspects of the character of the individual

offender and the circumstances of the particular offense as a

constitutionally indispensable part of the process of imposing the

ultimate punishment of death.

Woodson v. North Carolina, 428 U.S. 280, 281, 96 S. Ct. 2978, 2980, 49 L. Ed. 2d 944

(1976). (Emphasis added). In Woodsen, this Court held North Caolina’s mandatory

imposition of death penalty upon all first-degree murder convictions to be

unconstitutional because the statute “impermissibly treats all persons convicted of a

designated offense not as uniquely individual human beings, but as members of a

faceless, undifferentiated mass to be subjected to the blind infliction of the death

penalty.”

Occhicone argues that the execution of the elderly defies the evolving

standards of decency of the Eighth Amendment and seeks exemption based on a

totality of the circumstances manifest at the time of execution, arguing the

determination of age is not based on class, but is a fact specific analysis of the

vulnerability of the individual at the time of injury. (See Appendix B, Claim Two for

full discussion of the claim). The FSC’s opinion in this matter analyzes neither the

evolving standards of decency nor whether age and vulnerability can even be a factor

in an Eighth Amendment analysis. (Appendix A). Florida’s disregard to Occhicone’s

as-applied challenge relegates him merely to one in a faceless class of elderly death

row inmates, distinguished only by their age and not by their individual

characteristics. It flies in the face of the idea propounded by this court in Williams,

that the punishment should fit Occhicone and not just the crime he committed four

decades ago. Williams v. People of State of N.Y., 337 U.S. 241, 247, 69 S. Ct. 1079,

1083, 93 L. Ed. 1337 (1949).

c. The State Of Florida’s Interpretation of the Conformity

Clause Denies Its Citizens Access to Their Eighth

Amendment Rights

Florida’s conformity clause does not preclude the expansion of Eighth

Amendment rights. It is true that neither the Eighth or the Fourteenth Amendment

require a state to “expand the protections afforded by the Eighth Amendment or to

interpret their own corresponding state constitutional prohibitions against cruel and

unusual punishment in a more expansive manner than the Supreme Court has

interpreted the federal prohibition.” Gudinas v. State, 412 So. 3d at 714 (Fla. 2025).

It is also true this Court has hitherto not determined a case based on whether the

elderly are categorically exempt from execution. However, Florida’s conclusion based

on those two facts is incorrect.

this Court is bound by those interpretations and is precluded from

interpreting Florida's prohibition against cruel and unusual

punishment to exempt ... those whose chronological age was over

eighteen years at the time of their capital crime(s).

Smithers v. State, 420 So. 3d 460, 465 (Fla.), cert. denied sub nom.

Smithers v. Fla., 146 S. Ct. 323, 223 L. Ed. 2d 143 (2025), quoting

Gudinas v. State, 412 So. 3d 701, 713 (Fla.).

this Court cannot interpret Florida's prohibition against cruel and

unusual punishment to provide protection that the Supreme Court has

decided is not afforded by the Eighth Amendment.

Ford v. State, 402 So. 3d 973, 979 (Fla.), cert. denied sub nom. Ford v.

Fla., 145 S. Ct. 1161, 221 L. Ed. 2d 225 (2025).

This Court simply does not have the authority to extend Roper to

Barwick based on his age of nineteen at the time of the murder.

Accordingly, Barwick is not entitled to relief.

Barwick v. State, 361 So. 3d 785, 794 (Fla. 2023).

Florida seems to believe not only that the expansion of the Eighth Amendment

beyond what is offered by this Court is not required, but that it is actually precluded

by the Conformity Clause, stripping them of jurisdiction over Eighth Amendment

matters. This effectively prohibits citizens of the state of Florida from ever having an

opportunity to have an Eighth Amendment claim meaningfully heard on its merits,

thus denying them access to their Eighth Amendment rights against cruel and/or

unusual punishment, unless the issue has already been heard by this court.

d. Florida’s Current Interpretation of the Conformity Clause

also Violates Capital Defendants’ Right to Due Process

Under the Fourteenth Amendment of United States

Constitution

Florida has previously created exemptions from execution despite its

Conformity Clause. In Ford v. Wainright the state created entitlement to avoid

execution during insanity was discussed and the process found to be lacking. Ford v.

Wainwright, 477 U.S. 399, 400, 106 S. Ct. 2595, 2597, 91 L. Ed. 2d 335 (1986). Justice

Marshall delivered the opinion that “the Eighth Amendment prohibits the State from

inflicting the death penalty upon a prisoner who is insane,” codifying the common law

right already recognized by the state of Florida into a Constitutionally protected right

for all Americans. Id. If Florida had not first afforded this right to its constituents,

independent of the Supreme Court of the United States, the right may never have

come before this Court to earn its constitutional protection.

Florida’s Conformity Clause does not prohibit Florida courts from finding on

the merits of Eighth Amendment claims. In essence, the Conformity Clause states

decisions construing the prohibition against cruel or unusual punishment must be

made in conformity with decisions of the United States Supreme Court. 22 Adoption of

the Eighth Amendment by the State of Florida implicitly carries with it the

Fourteenth Amendment’s guarantees of Due Process. “In considering whether the

Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we

ask whether the right guaranteed—not each and every particular application of that

right—is fundamental or deeply rooted.” Timbs v. Indiana, 586 U.S. 146, 156, 139 S.

Ct. 682, 690, 203 L. Ed. 2d 11 (2019). The fundamental right in question is the Eighth

Amendment’s prohibition of cruel and/or unusual punishment. Take for example

Packingham v. North Carolina, 582 U.S. ––––, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017),

in which this Court held a North Carolina statute prohibiting registered sex offenders

from accessing certain commonplace social media websites violated the First

Amendment right to freedom of speech. In reaching this conclusion, this Court noted

22 The Commentary to the 1998 Amendment of the Conformity Clause, by William A.

Buzzett and Deborah K. Kearney specifies that the purpose of the amendment was to

allow the Legislature to provide for any method of execution not prohibited by the

United States Constitution and so that changes in the method of execution may be

applied retroactively. Should the method of execution be held invalid, sentences of

death will remain in force until a valid method of execution is enacted. The

amendment was proposed after Florida’s electric chair malfunctioned for a second

time (see Jones v. State, 701 So. 2d 76 (Fla. 1997)). The Legislature wished to ensure

that should electrocution be held unconstitutional sometime in the future, death

sentences would not be commuted to life sentences, as happened in the wake of

Furman v. Georgia, 408 U. S. 238 (1972); Anderson v. State, 267 So. 2d 8 (Fla. 1972).

The commentary does not mention limiting or precluding the expansion of Eighth

Amendment rights.

the First Amendment's Free Speech Clause was “applicable to the States under the

Due Process Clause of the Fourteenth Amendment.” Id. This Court did not find

inquiry into whether the Free Speech Clause's application specifically to social media

websites was fundamental or deeply rooted. The particular application of that right

discussed here is whether age and vulnerability of an individual, such as Occhicone,

at the time of execution can be considered. It does not matter that “age and

vulnerability” is not in itself a fundamentally protected right, and does not

automatically entitle Occhicone to relief, it still requires full due process of the law in

making that determination.

In the earlier discussed case of Ford v. Wainright, Florida’s conduct in

determining the question of competency to be executed was found wanting. 477 U.S.

399, 400, 106 S. Ct. 2595, 2597, 91 L. Ed. 2d 335 (1986). This Court found that the

finding of competency required sufficient due process by allowing the defendant and

counsel to present material relevant evidence of the defendant’s individual condition

to the factfinder and a “full and fair hearing” on the critical issue where the defendant,

through counsel, may challenge or impeach the state’s experts. Similarly, by finding

that Occhicone’s claims are precluded by the Conformity Clause, the FSC denies

Occhicone full due process of the law and a determination on the merits of his claims.

Occhicone respectfully requests this Court enter a stay, reverse the lower

court’s ruling and remand with instructions to allow an evidentiary hearing on the

merits of the claims or alternatively a ruling on the merits of the claims raised in

Occhicone’s Initial Brief, to afford Occhicone due process in regard to his Eighth

Amendment claims.

CONCLUSION

This Court should grant this petition to resolve the conflicting holdings of this

Court and resolve how this Court’s precedent applies to Occhicone. It is this Court

and this Court alone that can resolve such a conflict.

Respectfully submitted,

/s/ Ali A. Shakoor

Florida Bar No. 0669830

Assistant CCRC-M

/s/ Debra R. Bell

DEBRA R. BELL

Florida Bar No. 0973068

Assistant CCRC-M

/s/ Mahham Syed

MAHHAM SYED

Florida Bar No. 1049535

Asssistant CCRC-M

Counsels of Record for Petitioner

*Member of the Bar of the Supreme

Court

July 24, 2026

Dated

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