The state seeks certiorari review of an order finding the record evidence to be insufficient to warrant jury instructions on the aggravating circumstance of section 921.141(h), Florida Statutes (1997), that the capital felony was especially heinous, atrocious or cruel and section 921.141(d), Florida Statutes (1997), that the capital felony was committed while the respondent was engaged in the commission of, or an attempt to commit a kidnapping. We have jurisdiction to entertain this petition. See State v. Matute-Chirinos, 713 So.2d 1006 (Fla. 1998).

We conclude that the trial court did not depart from the essential requirements of the law when it determined, as a matter- of law, that the evidence presented in this case did not support a finding that the homicide was especially heinous, atrocious or cruel, see Donaldson v. State, 23 Fla. L. Weekly S245, 722 So.2d 177 (Fla. 1998); Buckner v. State, 714 So.2d 384 (Fla. 1998); Richardson v. State, 604 So.2d 1107 (Fla. 1992); Cheshire v. State, 568 So.2d 908 (Fla. 1990); Hardwick v. State, 521 So.2d 1071 (Fla. 1988), or that the homicide was committed while the respondent was engaged in the commission of or attempted commission of a kidnapping, see Faison v. State, 426 So.2d 963, 965-66 (Fla. 1983); see also Berry v. State, 668 So.2d 967, 969 (Fla. 1996). The petition is therefore denied.

Petition denied.