Harry PHILLIPS, Petitioner, v. Richard L. DUGGER, etc., Respondent, 515 So. 2d 227

PER CURIAM. Harry Phillips, under a sentence and warrant of death, files this petition for extraordinary relief, for a writ of habeas corpus, request for stay of execution, and application for stay of execution pending disposition of petition for writ of certiorari. We have jurisdiction. Art. V, § (3)(b)(9), Fla. Const. Phillips was convicted in 1983 of the murder of a parole supervisor who was the superior of several probation officers in charge of Phillips’s parole. The jury recommended the death penalty and the trial judge sentenced Phillips to death. The verdict and sentence were affirmed by this court.

Phillips v. State, 476 So.2d 194 (Fla.1985). In that appeal Phillips raised several issues: testimony concerning collateral crimes, excessively prejudicial testimony of a fellow inmate, the trial court’s refusal to give a requested instruction on alibi, and the court’s findings that the murder was especially heinous, atrocious and cruel and committed in a cold, calculated and premeditated manner. In this petition Phillips now raises a challenge to the sentencing proceeding based on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

As grounds for his writ of habeas corpus Phillips maintains that comments from the prosecutor and the judge to the effect that the jury’s role in the sentencing proceeding was advisory and that the trial judge would make the final determination of sentence diminished the jury’s sense of responsibility for its actions. Thus, petitioner argues, he was denied a fair and individualized sentencing proceeding, which is guaranteed by the eighth amendment to the United States Constitution.

Phillips’s trial counsel did not object to these comments at the time they were made, and his direct appeal did not argue that the jury was in any way adversely influenced by them. The failure to raise this issue at trial and on direct appeal means the claim is procedurally barred. Caldwell, which was based in part on prior Florida case law, was not a sufficiently significant change in the law upon which to base a collateral attack. Witt v. State, 387 So.2d 922 (Fla.), cert, denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

In any event, Caldwell was decided while Phillips’s appeal was still pending in this Court. Without implying that his contention has substantive merit, we hold that Phillips’s claim is procedurally barred. We deny Phillips’s petition. No petition for rehearing shall be permitted. It is so ordered. McDonald, C.J., and OVERTON, EHRLICH, SHAW, GRIMES and KOGAN, JJ., concur. BARKETT, J., concurs specially with an opinion.