DC#   058293
DOB:   04/05/56

Ninth Judicial Circuit, Orange County, Case # 76-1942
Sentencing Judge, Trial I: The Honorable Maurice M. Paul
Sentencing Judge, Resentencing I: The Honorable Gary L. Formet
Sentencing Judge, Resentencing II: The Honorable Gary L. Formet
Sentencing Judge, Resentencing III: The Honorable Richard F. Conrad
Attorney, Trial I: Charles Tabscott – Assistant Public Defender
Attorney, Resentencing: Patricia Cashman – Assistant Public Defender
Attorney, Second resentencing: Patricia Cashman – Assistant Public Defender
Attorney, Third resentencing: Patricia Cashman – Assistant Public Defender
Attorneys, Direct Appeal I: Craig S. Barnard & Richard B. Greene – Assistant Public
Defenders
Attorneys, Direct Appeal II: Steven Malone & Eric Cumfer – Assistant Public Defenders
Attorney, Direct Appeal III: Steven Malone – Assistant Public Defender
Attorneys, Direct Appeal IV:Steven Malone & Gary Caldwell – Assistant Public Defenders
Attorneys, Direct Appeal V: Richard Greene & Gary Caldwell – Assistant Public
Defenders
Attorney, Collateral Appeals: Eric Pinkard & James Driscoll – CCRC-M

Date of Offense: 07/31/76

Date of Sentence: 02/11/77

Date of Resentencing: 02/24/88

Date of Second Resentencing: 08/30/93

Date of Third Resentencing: 10/10/96

Circumstances of Offense:

The defendant, James Hitchcock, was unemployed and moved in with his brother, Richard, and Richard’s family in Orlando several weeks before the murder. 

Hitchcock watched television with Richard and his family on the evening of the murder until approximately 11 p.m.  At that time, Hitchcock left the house and spent the next several hours smoking marijuana and drinking beer with some friends in Winter Garden.

Based on a statement that Hitchcock gave to the police after his arrest, Hitchcock came back to the house at approximately 2:30 a.m.  Hitchcock entered the residence from a window in the dining room and proceeded upstairs to the victim’s bedroom. 

He engaged in sexual intercourse with the victim, Richard’s 13-year-old stepdaughter.  Afterwards, the victim told Hitchcock that she was injured and that she was going to tell her mother what happened. 

When Hitchcock stopped the victim from leaving the bedroom, the victim began to yell.  Hitchcock choked the victim to prevent her from yelling and took her outside. 

The victim continued to make noise, so Hitchcock beat and choked the victim until she was silent and then left her body in some bushes near the house.  Hitchcock returned to the house after the crime and showered before he went to bed.

Hitchcock withdrew his prior statement at trial.  Hitchcock now claimed that the victim gave him entry into the house and willingly allowed him into her room to engage in consensual intercourse. 

Hitchcock said that his brother, Richard, entered the bedroom shortly after the sexual act, took the victim outside, and proceeded to choke her.  Hitchcock claimed that the victim was deceased before he successfully pulled Richard off of the victim. 

Richard had reportedly told Hitchcock that he had no intention of actually killing his stepdaughter.  Hitchcock told Richard that he would cover for him.  Hitchcock said that he gave his prior statement for the sole purpose of protecting Richard.

Additional Information:

08/06/76          Defendant indicted with the following:

Count I:           First-Degree Murder

01/26/77          Defendant found guilty of First-Degree Murder

02/04/77          The jury voted for a sentence of death by a majority

02/11/77          Defendant was sentenced as follows:

Count I:           First-Degree Murder – Death

04/22/87          United States Supreme Court granted Certiorari and remanded the case to the trial court for resentencing

First Resentencing:

02/20/88          Jury recommended death by a vote of 7-5

02/24/88          Defendant was resentenced as follows:

Count I:           First-Degree Murder – Death

01/28/93          Florida Supreme Court remanded case to trial court for resentencing

Second Resentencing:

08/27/93          Jury recommended death by a vote of 12-0

08/30/93          Defendant was resentenced as follows:

Count I:           First-Degree Murder – Death

03/21/96          Florida Supreme Court remanded case to trial court for resentencing

Third Resentencing:

09/11/96          Jury recommended death by a vote of 10-2

10/10/96          Defendant was resentenced as follows:

A Direct Appeal was filed with the Florida Supreme Court (FSC) on 02/17/77.  Issues that were raised included whether there was sufficient evidence to convict Hitchcock of First-Degree Murder and whether the trial judge improperly assessed the aggravating and mitigating factors.  The FSC ruled that all of the issues raised were either without merit or harmless and affirmed the conviction and sentence of Death on 02/25/82.

A Petition for the Writ of Certiorari was filed with the United States Supreme Court (USSC) on 08/25/82 and denied on 10/18/82.

A 3.850 Motion was filed with the circuit court on 05/03/83 and denied on 05/10/83.

A 3.850 Appeal was filed with the FSC on 05/10/83.  Issues that were raised included whether the death sentence violated Hitchcock's Sixth, Eighth, and Fourteenth Amendment rights because the law prevented his trial counsel from presenting nonstatutory mitigating evidence at his sentencing hearing.  The FSC found all claims either without merit or harmless and affirmed the circuit court’s denial of the 3.850 Motion on 05/17/83.

A Petition for Habeas Corpus was filed with the United States District Court (Middle) on 05/13/83 and was dismissed on 09/22/83.

A Habeas Appeal was filed with the 11^th Circuit Court of Appeals on 10/03/83.  The 11^th Circuit Court of Appeals affirmed the USDC’s denial of the Habeas Petition on 10/18/84.  The rehearing was granted en banc on 01/18/85.  After rehearing the case, the 11^th Circuit Court of Appeals again affirmed the USDC’s denial of the Habeas Petition on 08/28/85.

A Petition for the Writ of Certiorari was filed with the USSC on 04/18/86. The USSC found that the trial judge had barred the consideration of nonstatutory mitigating factors and therefore the defendant’s Death sentence was invalid.  On 04/22/87, the USSC granted Certiorari and remanded the case to the USDC.

The USDC vacated the Habeas denial on 11/25/87 and remanded the case to the trial court to be resentenced within 60 days.

Hitchcock was resentenced on 02/24/88.

A second Direct Appeal was filed with the FSC on 03/23/88.  Issues raised on appeal included whether the trial court improperly refused to grant his challenges for cause to three prospective jurors and whether the trial court prevented Hitchcock from presenting additional mitigating evidence.  The sentence was affirmed by the FSC on 12/20/90.

A Petition for the Writ of Certiorari was filed with the USSC on 08/12/91 and denied on 10/15/91.  A rehearing was granted on 06/29/92 and the USSC granted Certiorari by vacating their 10/15/91 order denying Certiorari and remanded the case to the FSC for further consideration based on Espinosa v. Florida.

On 01/28/93, the FSC remanded the case to the trial court for a new sentencing hearing to take place within 90 days.

A third Direct Appeal was filed with the FSC on 09/13/93.  The case was remanded to the trial court on 03/21/96 because on appeal, Hitchcock argued that evidence was erroneously presented portraying him as a pedophile that deprived Hitchcock of a fair sentencing hearing.

A fourth Direct Appeal was filed with the FSC on 04/01/98.  Issues that were raised included whether the trial court erred in permitting the state to put into evidence a report concerning the results of a psychological test.  All of the claims were found to be either harmless or without merit and the FSC affirmed the sentence of Death on 03/23/00.

A Petition for the Writ of Certiorari was filed with the USSC on 09/29/00 and denied on 12/04/00.

A 3.850 Motion was filed with the circuit court on 02/07/01 and amended on 11/30/01.  The circuit court denied the Motion on 10/27/03.

A 3.853 Motion was filed with the circuit court on 12/29/01 and denied on 06/25/02. 

A 3.853 Motion Appeal was filed with the Florida Supreme Court on 08/07/02 and the denial of the 3.853 Motion was affirmed on 01/15/04.

A 3.850 Motion Appeal was filed with the Florida Supreme Court on 12/12/03 and is pending before the court.  On 05/03/05, the Florida Supreme Court relinquished jurisdiction relinquished to the Circuit Court for an Evidentiary Hearing on guilt phase issues.  On 03/07/06, an Evidentiary Hearing was held, and on 05/08/06, the Circuit Court denied the motion.