Dominic Culpepper, 14 when he fatally beat
16-year-old Frank Wesley McCool with a baseball bat in retaliation for
stealing marijuana in Sarasota County on June 25, 2001.
Sentenced to life in prison without possibility of parole on May
Sarasota teen's charge in bat beating now first-degree
The Associated Press
Thursday, October 25, 2001
SARASOTA, Fla. - A 14-year-old boy who allegedly beat another
teen-ager to death with a baseball bat over stolen drugs will be tried
for first-degree murder, a grand jury has decided.
If convicted at a trial in December, Dominic
Culpepper will become one of only two children under 16 sentenced to
spend the rest of their lives in Florida prisons.
After seeing the evidence and listening to
testimony from state witnesses Tuesday, the grand jury increased the
charge from second-degree to first-degree murder.
Culpepper's attorney, Assistant Public Defender
Adam Tebrugge, declined to comment on the indictment.
The grand jury also indicted Frank Tritschler, 15,
on a second-degree murder charge.
Culpepper is accused of masterminding a plan to
lure Wesley McCool, 16, to his Sarasota County condo on June 25 so he
could beat him up and retrieve a half-pound of marijuana that McCool
reportedly stole from him.
Another 14-year-old, Vincent Norcia, received an
18-month to seven-year sentence after pleading guilty to second-degree
murder in August. Norcia, who was charged as a juvenile, also agreed
to testify against Culpepper and Tritschler.
The only child 16 or younger currently serving a
life sentence without the hope of parole in Florida is 14-year-old
A Broward County jury convicted Tate earlier this
year of killing a 6-year-old girl in 1999. Tate, who was then 12,
stomped and beat Tiffany Eunick and flung her against a wall. He said
the slaying was an accident that occurred when he tried professional
wrestling moves upon the girl.
Tate is serving his sentence at the Okeechobee
Juvenile Offender Correction Center.
District Court of Appeal of Florida, Second
Culpepper v. State
Dominic CULPEPPER, Appellant, v. STATE of Florida, Appellee.
January 04, 2008
Bryan Stevenson, Equal Justice Initiative of
Alabama, Montgomery, Alabama; and Lynn Overmann, Miami, for
Dominic Culpepper appeals the circuit court's order
denying his motion for postconviction relief filed pursuant to Florida
Rule of Criminal Procedure 3.850. He claims that his sentence of
life without possibility of parole for the offense of first-degree
murder is cruel and unusual punishment because he committed the
offense when he was fourteen years old. We conclude that his motion
was untimely. Even if the motion were timely, case law does not
currently support his legal theory.
In June 2001, Mr. Culpepper believed that another
teenage boy had stolen a pound of marijuana from him. With the help
of some friends, Mr. Culpepper devised several plots to revenge this
theft. Ultimately, he tricked the victim into returning to Mr.
Culpepper's house to steal more marijuana. When the victim came to
the house, Mr. Culpepper hit him fifty times with a baseball bat and
dumped his body in the woods. For this, he was charged as an adult
and convicted of first-degree murder. The trial court had no option
except to sentence Mr. Culpepper to life in prison without possibility
He appealed his judgment and sentence to this
court. On direct appeal, he argued that his life sentence was cruel
and unusual punishment. We affirmed his judgment and sentence
without a written opinion. Culpepper v. State, 846 So.2d 515 (Fla. 2d
DCA 2003). Our mandate issued in that direct appeal in April 2003.
It is noteworthy that this court had issued a written opinion
declaring a similar sentence for a fourteen-year-old defendant to be
constitutional a few months earlier. See Phillips v. State, 807
So.2d 713 (Fla. 2d DCA 2002); see also Tate v. State, 864 So.2d 44
(Fla. 4th DCA 2003) (upholding life sentence for twelve-year-old).
Mr. Culpepper filed a prior postconviction motion
pursuant to rule 3.850 in 2005. That motion was denied, and this
court affirmed the order denying that motion. Culpepper v. State, 928
So.2d 344 (Fla. 2d DCA 2006) (table decision).
He filed this motion for postconviction relief
pursuant to rule 3.850 in the circuit court in April 2007. As he did
on direct appeal, he argues that his sentence of life without
possibility of parole is cruel and unusual punishment because of his
age at the time of the offense. This motion is obviously successive
and would be untimely unless Mr. Culpepper alleged one of the
exceptions to the standard two-year limitation contained in rule
3.850(b). He argues that this issue can be raised by postconviction
motion at this time because of the United States Supreme Court's
decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161
L.Ed.2d 1 (2005).
In Roper, the Court affirmed the Missouri Supreme
Court's decision in State ex rel. Simmons v. Roper, 112 S.W.3d 397
(Mo.2003), which held that the death penalty was unconstitutional as
applied to Simmons, who committed a first-degree murder when he was
seventeen. It is noteworthy that the remedy provided to Simmons when
Missouri held his death sentence to be unconstitutional was life
without possibility of parole. 112 S.W.3d at 413.
This case, of course, does not involve the death
penalty. Neither the United States Supreme Court nor the Supreme
Court of Florida has held that a sentence of life without possibility
of parole is unconstitutional when applied to a person under the age
of eighteen. Without such a ruling, Mr. Culpepper does not have an
issue raising a “fundamental constitutional right” that can be raised
at this time. See Fla. R.Crim. P. 3.850(b)(2); Witt v. State, 387
So.2d 922, 930 (Fla.1980); Margarejo v. State, No. 2D07-700, ---So.2d
----, 2007 WL 4404602 (Fla. 2d DCA Dec. 19, 2007); see also Sims v.
Commonwealth, 233 S.W.3d 731, 733 (Ky.App.2007) (holding that Roper
did not support a similar postconviction claim and noting that Roper
contained “obiter dictum to the effect that life imprisonment without
the possibility of parole remains a permissible sentence for [such]
We note that Mr. Culpepper's motion for
postconviction relief in the trial court discloses that he was filing
a federal habeas petition at the same time he filed for relief in
state court. In a brief filed on September 18, 2007, in this appeal,
his counsel did not disclose the extensive written decision of the
United States District Court for the Middle District of Florida issued
on July 13, 2007, denying the petition as untimely and without merit,
even though the lawyers who are counsel of record for Mr. Culpepper in
this case are also counsel of record in the federal proceeding.
Culpepper v. McDonough, 2007 WL 2050970 (M.D.Fla. July 13, 2007).
The issue these lawyers raise is worthy of public debate and they may
feel strongly about it, but they must know that this postconviction
claim is procedurally barred in state court at this time. They do
not assist their client or their cause by filing a motion that has no
legal merit or by failing to disclose the federal case law dealing
directly with their client.
FULMER and SALCINES, JJ., Concur.