          Supreme Court of Florida
                                   ____________

                                   No. SC18-245
                                   ____________

                             STATE OF FLORIDA,
                             Appellant/Cross-Appellee,

                                         vs.

                           MARK ANTHONY POOLE,
                            Appellee/Cross-Appellant.

                                  January 23, 2020

PER CURIAM.

      The State of Florida appeals from a postconviction order setting aside Mark

Anthony Poole’s 2011 death sentence for the 2001 murder of Noah Scott. The

sentence became final in 2015. Poole v. State (Poole II), 151 So. 3d 402 (Fla.

2014), cert. denied, 135 S. Ct. 2052 (2015). 1 The trial court set aside the sentence

and ordered a new penalty phase proceeding after finding the sentence to have

been imposed in violation of the United States and Florida Constitutions as

interpreted and applied in Hurst v. State, 202 So. 3d 40 (Fla. 2016). Arguing that




       1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.; State v. Fourth
Dist. Court of Appeal, 697 So. 2d 70, 71 (Fla. 1997).
Poole suffered no constitutional deprivation in his sentencing proceeding, the State

requests that we reexamine and partially recede from Hurst v. State.

       Poole filed a cross-appeal, arguing that his trial counsel’s concession of guilt

on related non-homicide offenses violated his Sixth Amendment right to counsel

and constituted structural error requiring reversal of his convictions and a new guilt

phase trial.

       We address the cross-appeal first because relief on Poole’s guilt phase

postconviction claim would moot the sentencing issue. The trial court rejected the

guilt phase claim, and we affirm the trial court as to this issue because Poole did

not preserve the issue for review on appeal. As for the sentencing issue, we agree

with the State that we must recede from Hurst v. State except to the extent that it

held that a jury must unanimously find the existence of a statutory aggravating

circumstance beyond a reasonable doubt. Accordingly, we reverse the portion of

the trial court’s order setting aside Poole’s sentence.

                                  BACKGROUND

       The opinion on direct appeal set out the following facts:

             Mark Anthony Poole was convicted of the first-degree murder
       of Noah Scott, attempted first-degree murder of Loretta White, armed
       burglary, sexual battery of Loretta White, and armed robbery. Poole
       was convicted based on the following facts presented at trial. On the
       evening of October 12, 2001, after playing some video games in the
       bedroom of their mobile home, Noah Scott and Loretta White went to
       bed sometime between 11:30 p.m. and 12 a.m. Later during the night,
       White woke up with a pillow over her face and Poole sitting on top of

                                         -2-
her. Poole began to rape and sexually assault her as she begged Poole
not to hurt her because she was pregnant. As White struggled and
resisted, Poole repeatedly struck her with a tire iron. She put her hand
up to protect her head, and one of her fingers and part of another
finger were severed by the tire iron. While repeatedly striking White,
Poole asked her where the money was. During this attack on White,
Scott attempted to stop Poole, but was also repeatedly struck with the
tire iron. As Scott struggled to defend White, Poole continued to
strike Scott in the head until Scott died of blunt force head trauma. At
some point after the attack, Poole left the bedroom and White was
able to get off the bed and put on clothes but she passed out before
leaving the bedroom. Poole came back in the bedroom and touched
her vaginal area and said “thank you.” White was in and out of
consciousness for the rest of the night. She was next aware of the
time around 8 a.m. and 8:30 a.m. when her alarm went off.

        When her alarm went off, White retrieved her cell phone and
called 911. Shortly thereafter, police officers were dispatched to the
home. They found Scott unconscious in the bedroom and White
severely injured in the hallway by the bedroom. White suffered a
concussion and multiple face and head wounds and was missing part
of her fingers. Scott was pronounced dead at the scene. Evidence at
the crime scene and in the surrounding area linked Poole to the
crimes. Several witnesses told police officers that they saw Poole or a
man matching Poole’s description near the victims’ trailer on the night
of the crimes. Stanley Carter stated that when he went to the trailer
park around 11:30 that night, he noticed a black male walking towards
the victims’ trailer. Carter’s observations were consistent with that of
Dawn Brisendine, who knew Poole and saw him walking towards the
victims’ trailer around 11:30 p.m. Pamela Johnson, Poole’s live-in
girlfriend, testified that on that evening, Poole left his house sometime
in the evening and did not return until 4:50 a.m.

       Poole was also identified as the person selling video game
systems owned by Scott and stolen during the crime. Ventura Rico,
who lived in the same trailer park as the victims, testified that on that
night, while he was home with his cousin’s girlfriend, Melissa Nixon,
a black male came to his trailer and offered to sell him some video
game systems. Rico agreed to buy them for $50, at which point the
black male handed him a plastic trash bag. During this exchange,

                                  -3-
      Nixon got a good look at the man and later identified Poole when the
      police showed her several photographs. Nixon testified that the next
      morning, when her son was going through the trash bag, he noticed
      that one of the systems had blood on it.

             Pamela Johnson also testified that on the same morning, she
      found a game controller at the doorstep of Poole’s house, she handed
      it to Poole, and Poole put it in his nightstand. She indicated that she
      had never seen that game controller before that morning and did not
      know what it would be used for because neither she nor Poole owned
      any video game systems. During the search of Poole’s residence, the
      police retrieved this controller. In addition, the police retrieved a blue
      Tommy Hilfiger polo shirt and a pair of Poole’s Van shoes, shoes
      Poole said he had been wearing on the night of the crimes. A DNA
      analysis confirmed that the blood found on the Sega Genesis box,
      Super Nintendo, Sega Dreamcast box and controller matched the
      DNA profile of Scott. Also, a stain found on the left sleeve of Poole’s
      blue polo shirt matched White’s blood type. The testing of a vaginal
      swab also confirmed that the semen in White was that of Poole. A
      footwear examination revealed that one of the two footwear
      impressions found on a notebook in the victims’ trailer matched
      Poole’s left Van shoe. The tire iron used in the crimes was found
      underneath a motor home located near the victims’ trailer. A DNA
      analysis determined that the blood found on this tire iron matched
      Scott’s DNA profile.

Poole v. State (Poole), 997 So. 2d 382, 387-88 (Fla. 2008) (footnote omitted).

      The trial began on April 21, 2005, and the jury returned a verdict six days

later finding Poole guilty of all charges, namely first-degree murder of Noah Scott,

attempted first-degree murder of Loretta White, armed burglary, sexual battery of

Loretta White, and armed robbery. The penalty phase began on May 2, 2005. The

jury recommended death by a vote of twelve to zero two days later, which allowed




                                        -4-
the trial court to consider a death sentence under section 921.141, Florida Statutes

(2005). On August 25, 2005, the trial court sentenced Poole to death.

      On direct appeal Poole raised a number of challenges to his convictions and

death sentence, including that his death sentence violated the dictates of Ring v.

Arizona, 536 U.S. 584 (2002), because Florida’s statutory sentencing scheme did

not require the jury to unanimously find all of the aggravators necessary to impose

a death sentence. Poole, 997 So. 2d at 396. This Court rejected that argument,

holding that Florida’s capital sentencing scheme was not unconstitutional pursuant

to Ring. Id. Alternatively, we held that Poole’s case fell outside the scope of Ring

because the jury had unanimously found that Poole committed other violent

felonies during the murder—specifically attempted first-degree murder, sexual

battery, armed burglary, and armed robbery. Id. Those convictions unanimously

found by Poole’s jury formed the basis of one of the statutory aggravators found by

the trial court—that Poole had prior violent felony convictions. Id. Thus, this case

fell “outside the scope of Ring.” Id. However, this Court determined that Poole

was entitled to a new penalty phase proceeding because the prosecutor improperly

introduced inadmissible nonstatutory aggravation by cross-examining witnesses

about unproven prior arrests and the unproven content of a tattoo on Poole’s body.

Id. at 393-94. We vacated Poole’s sentence of death and remanded for a new

penalty phase. Id. at 394.


                                        -5-
      On June 29, 2011, following a new penalty phase, the jury recommended

death by a vote of 11 to 1. Poole II, 151 So. 3d at 408. The trial court found four

aggravating circumstances: (1) the contemporaneous conviction for the attempted

murder of Loretta White (very great weight); (2) the capital felony occurred during

the commission of burglary, robbery, and sexual battery (great weight); (3) the

capital felony was committed for financial gain (merged with robbery but not

burglary or sexual battery) (less than moderate weight); and (4) the capital felony

was committed in a heinous, atrocious, or cruel (HAC) manner (very great weight).

Id. Again, three of these four aggravators were found unanimously by the jury

because the jury found Poole guilty of the other charged crimes on which these

aggravators are based.

      The trial court found two statutory mitigating circumstances: (1) the capital

felony was committed while the defendant was under the influence of extreme

mental or emotional disturbance (moderate to great weight); and (2) the

defendant’s capacity to appreciate the criminality of his conduct or conform his

conduct to the requirements of the law was substantially impaired (great weight).

It found eleven nonstatutory mitigating circumstances:

      (1) borderline intelligence (little weight); (2) defendant dropped out of
      school (very little weight); (3) loss of father figure had emotional effect
      and led to his drug abuse (very little weight); (4) defendant sought help
      for drug problem (very little weight); (5) defendant had an alcohol
      problem at time of crime (very little weight); (6) drug abuse problem at
      time of crime (very little weight); (7) defendant has a relationship with

                                         -6-
      son (very little weight); (8) strong work ethic (very little weight); (9)
      defendant is a religious person (very little weight); (10) dedicated uncle
      (very little weight); and (11) defendant needs treatment for mental
      disorder unrelated to substance abuse (very little weight). The trial
      court determined that the proposed mitigator that the defendant has
      severe chronic alcohol and cocaine problem for which he needs
      treatment was not proven.

Id.

      The trial court concluded that the aggravating factors far outweighed the

mitigating circumstances; specifically, the HAC aggravator alone outweighed all

mitigating circumstances. Id. Accordingly, the trial court sentenced Poole to death

on August 19, 2011, and we upheld the trial court’s resentencing on June 26, 2014.

Id. at 419.

      On April 8, 2016, Poole filed his initial postconviction motion, raising two

issues pertinent to this appeal: (1) counsel was ineffective for conceding that Poole

committed the nonhomicide offenses; and (2) Poole is entitled to resentencing

because the jury did not make the findings required by Hurst v. State.

      The trial court entered an interim order vacating Poole’s death sentence

pursuant to Hurst v. State, finding the error was not harmless because the jury’s

recommendation of death was not unanimous. Following an evidentiary hearing,

the trial court denied Poole’s claim that counsel was ineffective for conceding guilt

on the nonhomicide offenses. The trial court granted the State’s request for a stay

of its order requiring a new penalty phase, pending this appeal.


                                        -7-
                             GUILT PHASE CLAIM

      Poole argues that he is entitled to a new trial because, over his express

objections, defense counsel conceded Poole’s guilt on the non-homicide offenses.

Poole bases this claim on McCoy v. Louisiana, 138 S. Ct. 1500 (2018).2 The State

argues that Poole failed to preserve the specific legal argument that he raises on

appeal and thus this issue was waived. We agree.

      “In order to preserve an issue for appeal, the issue ‘must be presented to the

lower court and the specific legal argument or grounds to be argued on appeal

must be part of that presentation.’ ” Bryant v. State, 901 So. 2d 810, 822 (Fla.

2005) (emphasis added) (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993)).

Raising a claim for the first time during closing arguments is insufficient to

preserve a postconviction claim. Deparvine v. State, 146 So. 3d 1071, 1103 (Fla.

2014). Rather, the specific legal argument must be raised in the postconviction

motion. Wickham v. State, 124 So. 3d 841, 853 (Fla. 2013). Applying these

principles here, we conclude that Poole did not preserve this claim for appellate

review.



       2. In McCoy, the Supreme Court reviewed a state supreme court decision
affirming the petitioner’s murder conviction on direct appeal. See McCoy, 138 S.
Ct. at 1507. The Supreme Court decided McCoy on direct appeal. Because we
have concluded that Poole did not preserve his guilt phase claim for appellate
review, we need not address how McCoy’s holding applies in the postconviction
context. See Weaver v. Massachusetts, 137 S. Ct. 1899 (2017).

                                         -8-
      In his postconviction motion, Poole argued that counsel’s concession of guilt

on the nonhomicide offenses violated Poole’s rights to remain silent and to the

attorney-client privilege under the Fifth and Sixth Amendments. Poole

emphasized the specific wording of counsel’s concession, noting that counsel told

the jury that Poole “acknowledges” that he committed burglary, sexual battery, and

robbery. Poole contrasted “acknowledging” that a defendant committed a crime

with simply conceding that a charge has been proven by the state. In the former

case, according to Poole’s motion, “the attorney-client privilege is violated, and the

right to remain silent is waived, opening the door to rebuttal evidence and

argument.”

      The argument that Poole now raises on appeal did not appear until written

closing argument. Only then did Poole assert that counsel’s concession of guilt

without Poole’s consent violated Poole’s constitutional rights. Poole’s written

closing argument presented this argument as one of “two errors,” each of which

“individually would constitute grounds for vacating Mr. Poole’s conviction.” (The

other error, of course, was the one he asserted in his postconviction motion—the

alleged violation of Poole’s rights to remain silent and to the attorney client

privilege.) Poole presented each argument under a separate heading in his closing

argument memorandum and said that the second argument (his original argument)

provided “additional grounds for vacating Mr. Poole’s conviction.”


                                         -9-
      Poole’s postconviction motion did not present the specific legal argument

that he now presses on appeal. Raising the argument in his post-hearing, written

closing argument memorandum was insufficient. Therefore, we hold that Poole

did not preserve his guilt phase argument for our review on appeal.

                          SENTENCING PHASE CLAIM

      We now turn to the State’s argument that Poole suffered no constitutional

deprivation in his sentencing proceeding and that we should partially recede from

Hurst v. State.

                     I.    Statutory and Legal Background

   A. Florida’s Capital Sentencing Law

      Poole was sentenced to death under the familiar statutory framework that

governed Florida’s capital sentencing proceedings from 1973 until 2016. Florida

adopted that framework in response to the Supreme Court’s decision in Furman v.

Georgia, 408 U.S. 238 (1972). “A fair statement of the consensus expressed by

the Court in Furman is that ‘where discretion is afforded a sentencing body on a

matter so grave as the determination of whether a human life should be taken or

spared, that discretion must be suitably directed and limited so as to minimize the

risk of wholly arbitrary and capricious action.’ ” Zant v. Stephens, 462 U.S. 862,

874 (1983) (quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976) (plurality

opinion)). The Supreme Court has fleshed out this principle by requiring states to


                                       - 10 -
narrow the class of death-eligible murders and by mandating individualized

sentencing that considers offender-specific mitigating circumstances.

      Florida’s capital sentencing procedures begin with an evidentiary hearing at

which the judge and jury hear evidence relevant to the nature of the crime and the

character of the defendant, including statutory aggravating and mitigating

circumstances. § 921.141(1), Fla. Stat. (2011).3 Next the jury deliberates and

renders an “advisory sentence” to the court. § 921.141(2), Fla. Stat. Finally,

“[n]otwithstanding the recommendation of a majority of the jury, the court, after

weighing the aggravating and mitigating circumstances,” must enter a sentence of

life imprisonment or death. § 921.141(3), Fla. Stat. If the court imposes a

sentence of death, it is required to issue written findings “upon which the sentence

of death is based as to the facts: (a) [t]hat sufficient aggravating circumstances

exist as enumerated in subsection (5); and (b) [t]hat there are insufficient

mitigating circumstances to outweigh the aggravating circumstances.” Id.

      Soon after the legislature adopted this capital sentencing framework, this

Court in State v. Dixon, 283 So. 2d 1 (Fla. 1973), considered whether the new law

passed muster under Furman. The Court concluded that it did, because the




       3. For simplicity, unless otherwise indicated, throughout our discussion we
refer in the present tense to Florida’s capital sentencing law as it existed in 2011,
when Poole was resentenced.

                                        - 11 -
statutory scheme “controlled and channeled” discretion “until the sentencing

process becomes a matter of reasoned judgment.” Id. at 10.

   B. From Proffitt to Walton

      In several cases that are directly relevant to the issues before us now, the

Supreme Court itself considered and rejected Sixth and Eighth Amendment

challenges to Florida’s post-Furman capital sentencing law. In Proffitt v. Florida,

428 U.S. 242 (1976), the Court took up the question whether Florida’s capital

sentencing system complied with the Eighth Amendment. The Court noted that, in

Florida, the “jury’s verdict is determined by majority vote. It is only advisory; the

actual sentence is determined by the trial judge.” Id. at 248-49. No matter, the

Court concluded, because the Court’s decisions had “never suggested that jury

sentencing is constitutionally required.” Id. at 252. The Court’s ultimate holding

in Proffitt was that “[o]n its face the Florida system . . . satisfies the constitutional

deficiencies identified in Furman.” Id. at 253.

      Next, in Spaziano v. Florida, 468 U.S. 447, 457 (1984), the Supreme Court

considered whether Florida’s capital sentencing system violated the Sixth or

Eighth Amendment by allowing the trial judge to override a jury’s

recommendation of life. Id. at 457. As to the Sixth Amendment, the Court

observed that, “despite its unique aspects, a capital sentencing proceeding involves

the same fundamental issue involved in any other sentencing proceeding—a


                                          - 12 -
determination of the appropriate punishment to be imposed on an individual.” Id.

at 459. And “[t]he Sixth Amendment never has been thought to guarantee a right

to a jury determination of that issue.” Id. The Court also found no Eighth

Amendment violation in the possibility of a jury override: “We are not persuaded

that placing the responsibility on a trial judge to impose the sentence in a capital

case is so fundamentally at odds with contemporary standards of fairness and

decency that Florida must be required to alter its scheme and give final authority to

the jury to make the life-or-death decision.” Id. at 465. The Court concluded that

“there is no constitutional imperative that a jury have the responsibility of deciding

whether the death penalty should be imposed.” Id.

      Finally, in Hildwin v. Florida, 490 U.S. 638, 639 (1989), the Supreme Court

considered a claim that “the Florida capital sentencing scheme violates the Sixth

Amendment because it permits the imposition of death without a specific finding

by the jury that sufficient aggravating circumstances exist to qualify the defendant

for capital punishment.” The Court rejected the claim, reasoning that “the

existence of an aggravating factor here is not an element of the offense but instead

is ‘a sentencing factor that comes into play only after the defendant has been found

guilty.’ ” Id. at 640 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986)).

Based on that premise, the Court held that “the Sixth Amendment does not require




                                        - 13 -
that the specific findings authorizing the imposition of the sentence of death be

made by the jury.” Id. at 640-41.

      A final, non-Florida case bears explaining before we turn to the cases that

led directly to Hurst v. State. Decided one year after Spaziano, Walton v. Arizona,

497 U.S. 639 (1990), involved a challenge to Arizona’s capital sentencing law,

which required the trial court to find and weigh aggravating and mitigating

circumstances before imposing a death sentence. The Arizona law under review

did not include any role for the jury in the capital sentencing process. The

petitioner in Walton argued that “every finding of fact underlying the sentencing

decision must be made by a jury, not by a judge” and that therefore “the Arizona

scheme would be constitutional only if a jury decides what aggravating and

mitigating circumstances are present in a given case and the trial judge then

imposes sentence based on those findings.” Id. at 647. The Court rejected that

claim, relying largely on Hildwin and the Court’s other decisions upholding

Florida’s capital sentencing system.

      The argument that Florida’s advisory jury verdict materially distinguished

the two states’ systems did not persuade the Court. Instead, the Court emphasized

that Florida’s capital jury does not make specific factual findings about aggravators

and mitigators and that the jury’s recommendation is not binding on the trial judge.

Id. at 647-48. The Court reasoned that “[a] Florida trial court no more has the


                                        - 14 -
assistance of a jury’s findings of fact with respect to sentencing issues than does a

trial judge in Arizona.” Id. at 648. The Court also rejected the argument that, in

Arizona, aggravating factors were “elements of the offense.” Id. The Court

ultimately held that “the Arizona capital sentencing scheme does not violate the

Sixth Amendment.” Id. at 649.

   C. Apprendi and Ring

      The Court’s retreat from the rationale underlying the Sixth Amendment

holdings of Spaziano, Hildwin, and Walton—specifically, that aggravators are

sentencing factors rather than de facto elements of the crime of capital murder—

began with the seminal case of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Apprendi had pleaded guilty to illegal possession of a firearm, an offense that

carried a maximum punishment of ten years’ imprisonment. Later, in a separate

sentencing proceeding, the trial court found by a preponderance of the evidence

that Apprendi had also violated a New Jersey hate crime sentencing statute. That

judicial finding resulted in Apprendi being sentenced to a term of imprisonment

two years above the statutory maximum for the base firearm offense. The

Supreme Court described the question presented in Apprendi as whether the

Fourteenth Amendment’s Due Process Clause “requires that a factual

determination authorizing an increase in the maximum prison sentence for an




                                        - 15 -
offense from 10 to 20 years be made by a jury on the basis of proof beyond a

reasonable doubt.” Id. at 469.

      The Court’s analysis proceeded from the foundational principle that the Fifth

Amendment (due process) and the Sixth Amendment (jury trial) combine to

“entitle a criminal defendant to a ‘jury determination . . . of every element of the

crime with which he is charged, beyond a reasonable doubt.’ ” Id. at 477 (quoting

United States v. Gaudin, 515 U.S. 506, 510 (1995)). From that principle the Court

derived the more specific rule that is the central holding of Apprendi: “[I]t is

unconstitutional for a legislature to remove from the jury the assessment of facts

that increase the prescribed range of penalties to which a criminal defendant is

exposed. It is equally clear that such facts must be established by proof beyond a

reasonable doubt.” Id. at 490 (Stevens, J., concurring) (alteration in original)

(quoting Jones v. United States, 526 U.S. 227, 252-53 (1999)). The only exception

to this rule is “the fact of a prior conviction.” Id.

      Most pertinent to our case here, the Court in Apprendi rejected New Jersey’s

argument that the factual finding supporting Apprendi’s hate crime sentencing

enhancement was a mere “sentencing factor,” rather than a fact that constitutes an

element of the offense. Id. at 494. The Court stated: “Despite what appears to us

the clear ‘elemental’ nature of the factor here, the relevant inquiry is one not of




                                          - 16 -
form but of effect—does the required finding expose the defendant to a greater

punishment than that authorized by the jury’s guilty verdict[.]” Id.

      In the penultimate paragraph of its opinion, the Court anticipated and

rejected the argument that “the principles guiding” its decision “render invalid state

capital sentencing schemes requiring judges, after a jury verdict holding a

defendant guilty of a capital crime, to find specific aggravating factors before

imposing a sentence of death.” Id. at 496. The Court deemed the capital cases

“not controlling” because, according to the Court, the offenses of conviction in

those cases already subjected the defendant to a sentence of death; the aggravating

factor findings merely informed the judge’s choice of life or death. Id. This

reasoning turned out to be short-lived.

      Two years later, Ring v. Arizona, 536 U.S. 584 (2002), gave the Supreme

Court the opportunity to apply its Apprendi rule in the capital sentencing context.

As we explained earlier, capital sentencing hearings under Arizona law were

conducted by the trial court alone, and the court made all required findings. Id. at

592. As in Florida, Arizona law provided that a death sentence could not be

imposed unless at least one aggravating factor was found to exist beyond a

reasonable doubt. Id. at 597. The Court framed the question presented as

“whether that aggravating factor may be found by the judge, as Arizona law




                                          - 17 -
specifies, or whether the Sixth Amendment’s jury trial guarantee . . . requires that

the aggravating factor determination be entrusted to the jury.” Id.

      The Court acknowledged its earlier decision in Walton upholding Arizona’s

capital sentencing scheme against a similar Sixth Amendment challenge. The

Court recognized that Walton had characterized Arizona’s required aggravating

factors as “sentencing considerations” rather than “elements of the offense.” Id. at

598. But the Court explained that Apprendi had since clarified that the Sixth

Amendment inquiry must focus on effect rather than form: “If a State makes an

increase in a defendant’s authorized punishment contingent on a finding of fact,

that fact—no matter how the State labels it—must be found by a jury beyond a

reasonable doubt.” Id. at 602.

      With that baseline established, the Court revisited whether, as the Walton

decision had assumed, a first-degree murder conviction in Arizona necessarily

included all the jury findings necessary to expose the defendant to a death

sentence. The Court looked to an Arizona Supreme Court decision holding that the

answer is no—“Defendant’s death sentence required the judge’s factual findings.”

Id. at 603 (quoting State v. Ring, 25 P.3d 1139, 1151 (Ariz. 2001)). “Recognizing

that the Arizona court’s construction of the State’s own law is authoritative,” the

Court concluded that “Walton, in relevant part, cannot survive the reasoning of

Apprendi.” Id. The Court ended its opinion:


                                        - 18 -
      [W]e overrule Walton to the extent that it allows a sentencing judge, sitting
      without a jury, to find an aggravating circumstance necessary for imposition
      of the death penalty. Because Arizona’s enumerated aggravating factors
      operate as “the functional equivalent of an element of a greater offense,” the
      Sixth Amendment requires that they be found by a jury.

Id. at 609 (citations omitted) (quoting Apprendi, 534 U.S. at 494 n.19).

      Justice Breyer declined to join the Court’s opinion. He concurred in the

judgment, however, on the ground that he “believe[d] that jury sentencing in

capital cases is mandated by the Eighth Amendment.” Id. at 614 (Breyer, J.,

concurring in the judgment).

   D. Hurst v. Florida

      It was not until Hurst v. Florida, 136 S. Ct. 616 (2016), that the Supreme

Court addressed the significance of Ring for the constitutionality of Florida’s

capital sentencing procedure. Although it ultimately chose to address only the

Sixth Amendment in its decision, the Supreme Court granted certiorari on the

question “[w]hether Florida’s death sentencing scheme violates the Sixth

Amendment or the Eighth Amendment in light of this Court’s decision in Ring v.

Arizona.” Hurst v. Florida, 575 U.S. 902, 902 (2015).

      In his briefing to the Supreme Court, Hurst made a Sixth Amendment

argument and an Eighth Amendment argument. His Sixth Amendment argument

was that “Florida’s capital sentencing scheme violates the Sixth Amendment under

Ring v. Arizona . . . because it assigns to the judge alone the power to render a


                                        - 19 -
defendant eligible for the death penalty by finding aggravating circumstances.”

Reply Brief for Petitioner at 2, Hurst v. Florida, 136 S. Ct. 616 (2016) (No. 14-

7505), 2015 WL 5138584 at * 2. Hurst’s Eighth Amendment argument was that

“Florida’s capital sentencing scheme also violates the Eighth Amendment because

it assigns to the judge the power to impose the death penalty.” Reply Brief for

Petitioner at 5.

       The Court had little trouble concluding that “the analysis the Ring Court

applied to Arizona’s sentencing scheme applies equally to Florida’s.” Hurst v.

Florida, 136 S. Ct. at 621-22. Pointing to section 921.141(3), Florida Statutes

(2010), the Court noted that Florida law required the judge, not the jury, to find the

“facts” necessary to impose the death penalty. Id. at 622. The Court said it was

“immaterial” that Florida’s system, unlike Arizona’s, incorporated an advisory jury

verdict. Id. The Court rejected the State’s argument that “when Hurst’s sentencing

jury recommended a death sentence, it ‘necessarily included a finding of an

aggravating circumstance.’ ” Id. (quoting the State’s brief). What mattered was

that “the Florida sentencing statute does not make a defendant eligible for death

until ‘findings by the court that such person shall be punished by death.’ ” Id.

(quoting § 775.082(1), Fla. Stat. (2010)).

       The Court ultimately held that “Florida’s sentencing scheme, which required

the judge alone to find the existence of an aggravating circumstance, is therefore


                                        - 20 -
unconstitutional.” Id. at 624. And, paralleling the language it used in Ring to

overrule Walton, the Court overruled Spaziano and Hildwin “to the extent they

allow a sentencing judge to find an aggravating circumstance, independent of a

jury’s factfinding, that is necessary for the imposition of the death penalty.” Id.

      As we noted earlier, the Court’s opinion did not address Hurst’s Eighth

Amendment argument. In fact, notwithstanding its earlier order, the Court

described itself as having granted certiorari to resolve only “whether Florida’s

capital sentencing scheme violates the Sixth Amendment in light of Ring.” Id. at

621. In a solo concurrence, Justice Breyer did address the Eighth Amendment

claim. Citing his own concurring opinion in Ring, he concluded that “the Eighth

Amendment requires that a jury, not a judge, make the decision to sentence a

defendant to death.” Id. at 624 (Breyer, J., concurring in the judgement) (quoting

Ring, 536 U.S. at 614).

   E. Hurst v. State

      When Hurst’s case returned to this Court on remand from the Supreme

Court, it would have been reasonable to expect that the application of Hurst v.

Florida would be straightforward. Hurst had asked the Supreme Court to find that

Florida’s capital sentencing statute violated the Sixth Amendment “because it

assigns to the judge alone the power to render a defendant eligible for the death

penalty by finding aggravating circumstances.” Reply Brief for Petitioner at 2,


                                        - 21 -
Hurst v. Florida, 136 S. Ct. 616 (2016) (No. 14-7505), 2015 WL 5138584 at *2.

In a relatively brief opinion that did not expand on Ring, the Supreme Court

agreed. As Justice Canady correctly observed in his Hurst v. State dissent, “Hurst

v. Florida simply applies the reasoning of Ring and Apprendi to Florida’s death

penalty statute and concludes that the jury’s advisory role under Florida law does

not satisfy the requirements of the Sixth Amendment.” 202 So. 3d at 79 (Canady,

J., dissenting). Years before, while it awaited definitive guidance from the

Supreme Court, this Court had already addressed what it would mean “if Ring did

apply in Florida”: “we read [Ring] as requiring only that the jury make the finding

of ‘an element of a greater offense.’ That finding would be that at least one

aggravator exists . . . .” State v. Steele, 921 So. 2d 538, 546 (Fla. 2005) (citation

omitted) (quoting Ring, 536 U.S. at 609).

      Nonetheless, this Court on remand concluded that Hurst v. Florida had far

greater implications for Florida’s capital sentencing law. The new rule announced

in Hurst v. State was as follows:

      [B]efore the trial judge may consider imposing a sentence of death, the jury
      in a capital case must unanimously and expressly find all the aggravating
      factors that were proven beyond a reasonable doubt, unanimously find that
      the aggravating factors are sufficient to impose death, unanimously find that
      the aggravating factors outweigh the mitigating factors, and unanimously
      recommend a sentence of death.

202 So. 3d at 57.




                                         - 22 -
      The Court based its holding on several sources of law. The Court looked to

Apprendi, Ring, and Hurst for the principle that the Sixth Amendment requires the

jury to find “every fact . . . necessary for the imposition of the death penalty” and

for the conclusion that each of these facts constitutes an “element.” Id. at 53.

Expanding on the Supreme Court’s concept of “facts,” the Court looked to the

Florida statutes to identify “those critical findings that underlie the imposition of a

death sentence.” Id. at 51. The Court looked to article I, section 22 of the Florida

Constitution4 for the principle that jury verdicts must be unanimous on all the

elements of criminal offenses—including the new capital sentencing “elements”

that the Court had purported to identify. See id. at 55. And finally, “in addition to

the requirements of unanimity that flow from the Sixth Amendment and from

Florida’s right to trial by jury,” the Court concluded that “juror unanimity in any

recommended verdict resulting in a death sentence is required under the Eighth

Amendment.” Id. at 59.

                                    II.    Analysis

      The State asks us to recede from Hurst v. State “to the extent its holding

requires anything more than the jury to find an aggravating circumstance—what

Hurst v. Florida requires.” We now explain how this Court erred in Hurst v. State



       4. Article I, section 22 provides in pertinent part: “The right of trial by jury
shall be secure to all and remain inviolate.”

                                          - 23 -
and why we have concluded that we must partially recede from our decision in that

case.

   A. The Correct Understanding of Hurst v. Florida

        It helps first to consider Hurst v. Florida in light of the principles underlying

the Supreme Court’s capital punishment cases. Those cases “address two different

aspects of the capital decisionmaking process: the eligibility decision and the

selection decision.” Tuilaepa v. California, 512 U.S. 967, 971 (1994). As to the

eligibility decision, the Court has required that the death penalty be reserved for

only a subset of those who commit murder. “To render a defendant eligible for the

death penalty in a homicide case, [the Supreme Court has] indicated that the trier

of fact must convict the defendant of murder and find one ‘aggravating

circumstance’ (or its equivalent) at either the guilt or penalty phase.” Id. at 971-72.

“[A]n aggravating circumstance must genuinely narrow the class of persons

eligible for the death penalty and must reasonably justify the imposition of a more

severe sentence on the defendant compared to others found guilty of murder.”

Zant, 462 U.S. at 877.

        By contrast, the selection decision involves determining “whether a

defendant eligible for the death penalty should in fact receive that sentence.”

Tuilaepa, 512 U.S. at 972. The Supreme Court’s cases require that the selection

decision be an individualized determination that assesses the defendant’s


                                          - 24 -
culpability, taking into account “relevant mitigating evidence of the character and

record of the defendant and the circumstances of the crime.” Id.

      Hurst v. Florida is about eligibility, not selection. We know this from the

face of the Court’s opinion: “Florida concedes that Ring required a jury to find

every fact necessary to render Hurst eligible for the death penalty.” Hurst v.

Florida, 136 S. Ct. at 622 (emphasis added). We know it from the opinion’s

exclusive focus on aggravating circumstances, the central object of the Court’s

death eligibility jurisprudence. We know it because Hurst’s counsel conceded it at

oral argument. Transcript of Oral Argument at 12, Hurst v. Florida, 136 S. Ct. 616

(2016) (No. 14-7505). And most fundamentally, we know it from the Apprendi-

based principle that animates the Court’s decision: “[I]t is unconstitutional for a

legislature to remove from the jury the assessment of facts that increase the

prescribed range of penalties to which a criminal defendant is exposed.” Apprendi,

530 U.S. at 490 (alteration in original) (quoting Jones, 526 U.S. at 252 (Stevens, J.,

concurring)).

      Justice Scalia explained “the import of Apprendi in the context of capital-

sentencing proceedings” this way:

      [F]or purposes of the Sixth Amendment’s jury-trial guarantee, the
      underlying offense of “murder” is a distinct, lesser included offense of
      “murder plus one or more aggravating circumstances.” Whereas the former
      exposes a defendant to a maximum penalty of life imprisonment, the latter
      increases the maximum permissible sentence to death.


                                        - 25 -
Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003).

      This of course describes Florida’s capital sentencing law. As the Supreme

Court itself noted in Hurst v. Florida, section 775.082(1), Florida Statutes, states

that the punishment for a capital felony is life imprisonment unless “the procedure

set forth in s. 921.141 results in findings by the court that such person shall be

punished by death.” The required trial court findings are set forth in section

921.141(3), Florida Statutes, which is titled “Findings in Support of Sentence of

Death.” When the Supreme Court referred to “the critical findings necessary to

impose the death penalty,” it referred to those findings as “facts” and cited section

921.141(3). Hurst v. Florida, 136 S. Ct. at 622. Tellingly, the Court did not cite

section 921.141(2), which sets out the process for the jury to render an advisory

verdict.

      Section 921.141(3) requires two findings. One is an eligibility finding, the

other a selection finding. The eligibility finding is in section 921.141(3)(a): “[t]hat

sufficient aggravating circumstances exist as enumerated in subsection (5).” The

selection finding is in section 921.141(3)(b): “[t]hat there are insufficient

mitigating circumstances to outweigh the aggravating circumstances.”

      We know that section 921.141(3)(a) is the eligibility finding because that is

what our Court said repeatedly and consistently for many decades prior to Hurst v.

State. In our first case interpreting Florida’s post-Furman capital sentencing law,


                                         - 26 -
we said: “When one or more of the aggravating circumstances is found, death is

presumed to be the proper sentence unless it or they are overridden by one or more

of the mitigating circumstances provided in Fla. Stat. s. 921.141(7).” State v.

Dixon, 283 So. 2d 1, 9 (Fla. 1973). Beginning with that holding, it has always

been understood that, for purposes of complying with section 921.141(3)(a),

“sufficient aggravating circumstances” means “one or more.” See Miller v. State,

42 So. 3d 204, 219 (Fla. 2010) (“sufficient aggravating circumstances” means “one

or more such circumstances”); Zommer v. State, 31 So. 3d 733, 754 (Fla. 2010)

(same); see also Douglas v. State, 878 So. 2d 1246, 1265 (Fla. 2004) (Pariente, J.,

concurring as to conviction and concurring in result only as to sentence) (“A

defendant convicted of first-degree murder cannot qualify for a death sentence

unless at least one statutory aggravating factor is found to exist.”).

      Poole’s suggestion that “sufficient” implies a qualitative assessment of the

aggravator—as opposed simply to finding that an aggravator exists—is

unpersuasive and contrary to this decades-old precedent. Likewise, our Court was

wrong in Hurst v. State when it held that the existence of an aggravator and the

sufficiency of an aggravator are two separate findings, each of which the jury must

find unanimously. Under longstanding Florida law, there is only one eligibility

finding required: the existence of one or more statutory aggravating circumstances.




                                         - 27 -
   B. The Errors of Hurst v. State

         This Court clearly erred in Hurst v. State by requiring that the jury make any

finding beyond the section 921.141(3)(a) eligibility finding of one or more

statutory aggravating circumstances. Neither Hurst v. Florida, nor the Sixth or

Eighth Amendment, nor the Florida Constitution mandates that the jury make the

section 941.121(3)(b) selection finding or that the jury recommend a sentence of

death.

   1. Sixth and Eighth Amendment Errors

         Weighing Under Section 941.121(3)(b). Again, the Apprendi rule drives the

Sixth Amendment inquiry: “[I]t is unconstitutional for a legislature to remove from

the jury the assessment of facts that increase the prescribed range of penalties to

which a criminal defendant is exposed.” Apprendi, 530 U.S. at 490 (alteration in

original) (quoting Jones, 526 U.S. at 252 (Stevens, J., concurring)). Only such

“facts” are “elements” that must be found by a jury. The section 921.141(3)(b)

selection finding—“that there are insufficient mitigating circumstances to

outweigh the aggravating circumstances”—fails both aspects of the Apprendi test.

         The section 921.141(3)(b) selection finding is not a “fact.” As the Supreme

Court observed in a case decided shortly after Hurst v. Florida, “the ultimate

question whether mitigating circumstances outweigh aggravating circumstances is

mostly a question of mercy.” Kansas v. Carr, 136 S. Ct. 633, 642 (2016). That


                                          - 28 -
stands in stark contrast to the “aggravating-factor determination,” which is “a

purely factual determination.” Id. A subjective determination like the one that

section 921.141(3)(b) calls for cannot be analogized to an element of a crime; it

does not lend itself to being objectively verifiable. Instead, it is a “discretionary

judgment call that neither the state nor the federal constitution entrusts exclusively

to the jury.” State v. Wood, 580 S.W.3d 566, 585 (Mo. 2019); see also Hurst v.

State, 202 So. 3d at 82 (Canady, J., dissenting) (weighing of mitigators and

aggravators is a determination that “require[s] subjective judgment”).

      We acknowledge that section 921.141(3)(b) requires a judicial finding “as to

the fact[]” that the mitigators do not outweigh the aggravators. But the

legislature’s use of a particular label is not what drives the Sixth Amendment

inquiry. See Apprendi, 530 U.S. at 494. In substance, what section 921.141(3)(b)

requires “is not a finding of fact, but a moral judgment.” United States v. Gabrion,

719 F.3d 511, 533 (6th Cir. 2013) (describing balancing provision in federal death

penalty statute).

      In any event, even if we were to consider the section 921.141(3)(b) selection

finding to be a fact, it still would not implicate the Sixth Amendment. The

selection finding does not “expose” the defendant to the death penalty by

increasing the legally authorized range of punishment. As we have explained,

under longstanding Florida law, it is the finding of an aggravating circumstance


                                         - 29 -
that exposes the defendant to a death sentence. The role of the section

921.141(3)(b) selection finding is to give the defendant an opportunity for mercy if

it is justified by the relevant mitigating circumstances and by the facts surrounding

his crime.

      This passage from the Supreme Court’s decision in Alleyne v. United States,

570 U.S. 99 (2013), illuminates this point:

      Juries must find any facts that increase either the statutory maximum or
      minimum because the Sixth Amendment applies where a finding of fact both
      alters the legally prescribed range and does so in a way that aggravates the
      penalty. Importantly, this is distinct from factfinding used to guide judicial
      discretion in selecting a punishment “within limits fixed by law.” While
      such findings of fact may lead judges to select sentences that are more
      severe than the ones they would have selected without those facts, the Sixth
      Amendment does not govern that element of sentencing.

Id. at 113 n.2 (quoting Williams v. New York, 337 U.S. 241, 246 (1949)). And

Alleyne merely echoes what the Supreme Court said in Apprendi: “We should be

clear that nothing in this history suggests that it is impermissible for judges to

exercise discretion—taking into consideration various factors relating both to

offense and offender—in imposing a judgment within the range prescribed by

statute.” Apprendi, 530 U.S. at 481.

      In sum, because the section 921.141(3)(b) selection finding is not a “fact”

that exposes the defendant to a greater punishment than that authorized by the

jury’s guilty verdict, it is not an element. And because it is not an element, it need




                                         - 30 -
not be submitted to a jury. See Hurst v. Florida, 136 S. Ct. at 621 (defining

“element”).

      Unanimous Jury Recommendation. The Hurst v. State requirement of a

unanimous jury recommendation similarly finds no support in Apprendi, Ring, or

Hurst v. Florida. As we have explained, the Supreme Court in Spaziano upheld

the constitutionality under the Sixth Amendment of a Florida judge imposing a

death sentence even in the face of a jury recommendation of life—a jury override.

It necessarily follows that the Sixth Amendment, as interpreted in Spaziano, does

not require any jury recommendation of death, much less a unanimous one. And

as we have also explained, the Court in Hurst v. Florida overruled Spaziano only

to the extent it allows a judge, rather than a jury, to find a necessary aggravating

circumstance. See Hurst v. Florida, 136 S. Ct. at 624.

      Even without Spaziano, the Apprendi line of cases cannot be read to require

a unanimous jury recommendation of death. Those cases are about what “facts”—

those that are the equivalent of elements of a crime—the Sixth Amendment

requires to be found by a jury. Sentencing recommendations are neither elements

nor facts. As Justice Scalia said, the judgment in Ring—and by extension the

judgment in Hurst v. Florida—“has nothing to do with jury sentencing.” Ring,

536 U.S. at 612 (Scalia, J., concurring).




                                        - 31 -
      Finally, we further erred in Hurst v. State when we held that the Eighth

Amendment requires a unanimous jury recommendation of death. The Supreme

Court rejected that exact argument in Spaziano. See Spaziano, 468 U.S. at 465; see

also Harris v. Alabama, 513 U.S. 504, 515 (1995) (“The Constitution permits the

trial judge, acting alone, to impose a capital sentence.”). We are bound by

Supreme Court precedents that construe the United States Constitution.

   2. State Law Errors

      For many decades, this Court considered Florida’s post-Furman sentencing

procedures to be facially consistent with our state constitution. Even after Ring, in

cases where the aggravator consisted of a prior violent felony, we rejected claims

that Florida’s capital sentencing scheme violated the right to a jury trial under our

state constitution. See, e.g., Doorbal v. State, 837 So. 2d 940, 963 (Fla. 2003).

      We departed from those precedents in Hurst v. State, when we decided that

article I, section 22 of the Florida Constitution requires a unanimous jury

recommendation of a sentence of death and unanimous jury findings as to all the

aggravating factors that were proven beyond a reasonable doubt, that the

aggravating factors are sufficient to impose death, and that the aggravating factors

outweigh the mitigating factors. We based that holding on our determination that

each of these findings is the equivalent of an element of an offense and on the




                                        - 32 -
longstanding principle of Florida law that all elements must be found unanimously

by the jury.

      Here we already have explained that our holding in Hurst v. State was based

on a mistaken view of what constitutes an element. Under the principles

established in Apprendi, Ring, and Hurst v. Florida, only one of the findings we

identified in Hurst v. State—the finding of the existence of an aggravating

circumstance—qualifies as an element, including for purposes of our state

constitution. There is no basis in state or federal law for treating as elements the

additional unanimous jury findings and recommendation that we mandated in

Hurst v. State. As to state law, subsequent to our decision in Hurst v. State, we

already have receded from the holding that the additional Hurst v. State findings

are elements. We held:

      To the extent that in Perry v. State, 210 So. 3d 630, 633 (Fla. 2016), we
      suggested that Hurst v. State held that the sufficiency and weight of the
      aggravating factors and the final recommendation of death are elements that
      must be determined by the jury beyond a reasonable doubt, we
      mischaracterized Hurst v. State, which did not require that these
      determinations be made beyond a reasonable doubt. Since Perry, in In re
      Standard Criminal Jury Instructions in Capital Cases and Foster [v. State,
      258 So. 3d 1248 (Fla. 2018)], we have implicitly receded from its
      mischaracterization of Hurst v. State. We now do so explicitly. Thus, these
      determinations are not subject to the beyond a reasonable doubt standard of
      proof, and the trial court did not err in instructing the jury.

Rogers v. State, 44 Fla. L. Weekly S208, S212 (Fla. Sept. 5, 2019).




                                        - 33 -
      Last, lest there be any doubt, we hold that our state constitution’s prohibition

on cruel and unusual punishment, article I, section 17, 5 does not require a

unanimous jury recommendation—or any jury recommendation—before a death

sentence can be imposed. The text of our constitution requires us to construe the

state cruel and unusual punishment provision in conformity with decisions of the

Supreme Court interpreting the Eighth Amendment. Binding Supreme Court

precedent in Spaziano holds that the Eighth Amendment does not require a jury’s

favorable recommendation before a death penalty can be imposed. See Spaziano,

468 U.S. at 464-65. Therefore, the same is true of article I, section 17.

   C. Stare Decisis

      While this Court has consistently acknowledged the importance of stare

decisis, it has been willing to correct its mistakes. In a recent discussion of stare

decisis, we said:

      Stare decisis provides stability to the law and to the society governed by that
      law. Yet stare decisis does not command blind allegiance to precedent.
      “Perpetuating an error in legal thinking under the guise of stare decisis


      5. Article I, section 17 provides in pertinent part: “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.”

                                         - 34 -
      serves no one well and only undermines the integrity and credibility of the
      court.”
Shepard v. State, 259 So. 3d 701, 707 (Fla. 2018) (quoting State v. Gray, 654 So.

2d 552, 554 (Fla. 1995)). Similarly, we have stated that “[t]he doctrine of stare

decisis bends . . . where there has been an error in legal analysis.” Puryear v.

State, 810 So. 2d 901, 905 (Fla. 2002). And elsewhere we have said that we will

abandon a decision that is “unsound in principle.” Robertson v. State, 143 So. 3d

907, 910 (Fla. 2014) (quoting Brown v. Nagelhout, 84 So. 3d 304, 309 (Fla.

2012)).

      It is no small matter for one Court to conclude that a predecessor Court has

clearly erred. The later Court must approach precedent presuming that the earlier

Court faithfully and competently carried out its duty. A conclusion that the earlier

Court erred must be based on a searching inquiry, conducted with minds open to

the possibility of reasonable differences of opinion. “[T]here is room for honest

disagreement, even as we endeavor to find the correct answer.” Gamble v. United

States, 139 S. Ct. 1960, 1986 (2019) (Thomas, J., concurring).

      In this case we cannot escape the conclusion that, to the extent it went

beyond what a correct interpretation of Hurst v. Florida required, our Court in

Hurst v. State got it wrong. We say that based on our thorough review of Hurst v.

Florida, of the Supreme Court’s Sixth and Eighth Amendment precedents, and of

our own state’s laws, constitution, and judicial precedents. Without legal


                                        - 35 -
justification, this Court used Hurst v. Florida—a narrow and predictable ruling that

should have had limited practical effect on the administration of the death penalty

in our state as an occasion to disregard decades of settled Supreme Court and

Florida precedent. Under these circumstances, it would be unreasonable for us not

to recede from Hurst v. State’s erroneous holdings.

      Invoking North Florida Women’s Health & Counseling Services, Inc. v.

State, 866 So. 2d 612 (Fla. 2003), Poole urges us to stand by our decision in Hurst

v. State. Our opinion in North Florida Women’s Health said that, before deciding

to overrule a prior opinion, “we traditionally have asked several questions,

including the following”: whether the decision has proved unworkable; whether

the decision could be reversed “without serious injustice to those who have relied

on it and without serious disruption in the stability of the law;” and whether there

have been drastic changes in the factual premises underlying the decision. Id. at

637. Though we do not doubt that this list of considerations could have been

culled from our pre-North Florida Women’s Health precedents, we note that the

Court there offered no citation to support its compilation.

      In the years since our decision in North Florida Women’s Health, we have

not treated that case as having set forth a stare decisis test that we must follow in

every case. On the contrary, we have repeatedly receded from erroneous

precedents without citing North Florida Women’s Health or asking all the


                                         - 36 -
questions it poses. See, e.g., Shepard, 259 So. 3d at 707; State v. Sturdivant, 94

So. 3d 434, 440 (Fla. 2012); Westgate Miami Beach, Ltd. v. Newport Operating

Corp., 55 So. 3d 567, 574 (Fla. 2010); Allstate Indem. Co. v. Ruiz, 899 So. 2d

1121, 1131 (Fla. 2005).

       More fundamentally, we are wary of any invocation of multi-factor stare

decisis tests or frameworks like the one set out in North Florida Women’s Health.

They are malleable and do not lend themselves to objective, consistent, and

predictable application. They can distract us from the merits of a legal question

and encourage us to think more like a legislature than a court. And they can lead

us to decide cases on the basis of guesses about the consequences of our decisions,

which in turn can make those decisions less principled. Multi-factor tests or

frameworks like the one in North Florida Women’s Health often serve as little

more than a toolbox of excuses to justify a court’s unwillingness to examine a

precedent’s correctness on the merits.

      We believe that the proper approach to stare decisis is much more

straightforward. In a case where we are bound by a higher legal authority—

whether it be a constitutional provision, a statute, or a decision of the Supreme

Court—our job is to apply that law correctly to the case before us. When we are

convinced that a precedent clearly conflicts with the law we are sworn to uphold,

precedent normally must yield.


                                         - 37 -
      We say normally because “stare decisis means sticking to some wrong

decisions.” Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401, 2409 (2015).

“Indeed, stare decisis has consequence only to the extent it sustains incorrect

decisions; correct judgments have no need for that principle to prop them up.” Id.

But once we have chosen to reassess a precedent and have come to the conclusion

that it is clearly erroneous, the proper question becomes whether there is a valid

reason why not to recede from that precedent.

      The critical consideration ordinarily will be reliance. It is generally accepted

that reliance interests are “at their acme in cases involving property and contract

rights.” Payne v. Tennessee, 501 U.S. 808, 828 (1991). And reliance interests are

lowest in cases—like this one—“involving procedural and evidentiary rules.” Id.;

see also Alleyne, 570 U.S. at 119 (Sotomayor, J., concurring) (“[W]hen procedural

rules are at issue that do not govern primary conduct and do not implicate the

reliance interests of private parties, the force of stare decisis is reduced.”).

      Here any reliance considerations cut against Poole. No one, including

Poole, altered his behavior in expectation of the new procedural rules announced in

Hurst v. State. To the extent that reliance interests factor here at all, they lean

heavily in favor of the victims of Poole’s crimes and of society’s interest in

holding Poole to account and in the substantial resources that have been spent

litigating and adjudicating Poole’s case.


                                          - 38 -
      We acknowledge that the Legislature has changed our state’s capital

sentencing law in response to Hurst v. State. Our decision today is not a comment

on the merits of those changes or on whether they should be retained. We simply

have restored discretion that Hurst v. State wrongly took from the political

branches.

      Having thoroughly considered the State’s and Poole’s arguments in light of

the applicable law, we recede from Hurst v. State except to the extent it requires a

jury unanimously to find the existence of a statutory aggravating circumstance

beyond a reasonable doubt.

                                  CONCLUSION

      The jury in Poole’s case unanimously found that, during the course of the

first-degree murder of Noah Scott, Poole committed the crimes of attempted first-

degree murder of White, sexual battery of White, armed burglary, and armed

robbery. Under this Court’s longstanding precedent interpreting Ring v. Arizona

and under a correct understanding of Hurst v. Florida, this satisfied the

requirement that a jury unanimously find a statutory aggravating circumstance

beyond a reasonable doubt. See Poole II, 151 So. 3d at 419. In light of our

decision to recede from Hurst v. State except to the extent it requires a jury

unanimously to find the existence of a statutory aggravating circumstance, we

reverse the portion of the trial court’s order vacating Poole’s death sentence. We


                                        - 39 -
affirm the trial court’s denial of Poole’s guilt phase claim. And we remand to the

trial court with instructions that Poole’s sentence be reinstated and for proceedings

consistent with this opinion.

      It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, and MUÑIZ, JJ., concur.
LAWSON, J., concurs specially with an opinion.
LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

LAWSON, J., concurring specially.

      I fully concur in the majority opinion and write separately to address the

dissent’s contentions: (1) that “national consensus,” dissenting op. at 53, is relevant

to our consideration of any legal issue decided today; (2) that today’s decision

“returns Florida to its status as an absolute outlier among the jurisdictions in this

country that utilize the death penalty,” id. at 51; (3) that “settled [Florida] law

compelled this Court’s conclusion in Hurst v. State [202 So. 3d 40 (Fla. 2016)] that

the unanimity requirement applied not only to the jury’s duty to determine whether

to convict the defendant, but upon conviction, to the jury’s duty to determine

whether the defendant should receive the death penalty,” dissenting op. at 53-54;

and (4) that our decision “removes an important safeguard for ensuring that the

death penalty is only applied to the most aggravated and least mitigated of

murders,” id. at 51-52.

                                         - 40 -
      I.     National consensus is irrelevant to our legal analysis.

      It is axiomatic that we are bound by decisions of the United States Supreme

Court when construing provisions of the United States Constitution. Carnival

Corp. v. Carlisle, 953 So. 2d 461, 465 (Fla. 2007) (“[S]tate courts are bound by the

decisions of the United States Supreme Court construing federal law.” (quoting

Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 220-21 (1931))). While

political decisions by the various states are regularly considered in Eighth

Amendment analysis to gauge “evolving standards of decency,” see, e.g., Spaziano

v. Florida, 468 U.S. 447, 463-64 n. 9 (1984) (considering the statutory approaches

of a number of jurisdictions to capital sentencing), overruled in part by Hurst v.

Florida, 136 S. Ct. 616 (2016), a consideration when determining what constitutes

cruel and unusual punishment, the Supreme Court has held that the Eighth

Amendment does not require a jury determination on the ultimate question of

whether to impose a death sentence. Id. at 465. In conducting its Eighth

Amendment analysis of this issue in Spaziano v. Florida, the Supreme Court

acknowledged that a significant majority of jurisdictions entrusted the sentencing

decision to a jury in the death penalty context, id. at 463, making Florida one of

only three jurisdictions that permitted a judge to impose a death sentence in the

absence of a jury’s unanimous determination that a death sentence should be




                                        - 41 -
imposed. Id. Despite Florida’s minority position, the Supreme Court found no

Eighth Amendment violation, reasoning:

      The fact that a majority of jurisdictions have adopted a different
      practice, however, does not establish that contemporary standards of
      decency are offended by the jury override. The Eighth Amendment is
      not violated every time a State reaches a conclusion different from a
      majority of its sisters over how best to administer its criminal laws.
      “Although the judgments of legislatures, juries, and prosecutors weigh
      heavily in the balance, it is for us ultimately to judge whether the
      Eighth Amendment” is violated by a challenged practice. See
      Enmund v. Florida, 458 U.S. 782, 797 (1982); Coker v. Georgia, 433
      U.S. 584, 597 (1977) (plurality opinion). In light of the facts that the
      Sixth Amendment does not require jury sentencing, that the demands
      of fairness and reliability in capital cases do not require it, and that
      neither the nature of, nor the purpose behind, the death penalty
      requires jury sentencing, we cannot conclude that placing
      responsibility on the trial judge to impose the sentence in a capital
      case is unconstitutional.

Id. at 464. Because the Supreme Court has already considered arguments based

upon “national consensus” in its analysis of this precise issue, id., and because we

are bound by this precedent, Carlisle, 953 So. 2d at 465, we cannot conduct an

original Eighth Amendment analysis, consider national consensus, and reach a

different result than that of the Supreme Court on this same legal issue. Id.

      Moreover, because the Supreme Court in Spaziano expressly held that the

Eighth Amendment does not require jury sentencing in capital cases, the Florida

Constitution expressly prohibits us from reaching a different result under the

Florida Constitution. See art. I, § 17, Fla. Const. (“The prohibition against cruel or

unusual punishment, and the prohibition against cruel and unusual punishment,

                                        - 42 -
shall be construed in conformity with decisions of the Supreme Court which

interpret the prohibition against cruel and unusual punishment provided in the

Eighth Amendment to the United States Constitution.”).

      For these reasons, “national consensus” is irrelevant to our analysis of the

legal issues presented in this appeal, and its consideration is therefore properly

absent from the majority’s legal analysis.

      II.    Our decision today does not make Florida an “outlier.”

      The majority today decides constitutional questions, not political ones.

Those constitutional questions are properly decided through legal reasoning, not

policy analysis. It is true that Congress has made a policy decision requiring a

unanimous jury recommendation before death can be imposed as a sentence under

federal law. 18 U.S.C. § 3593(e) (2019). It is also true, as already discussed, that

an overwhelming majority of states still authorizing death as a sentence have made

the same legislative policy choice. See Spaziano, 468 U.S. at 463; see also

Michael L. Radelet & G. Ben Cohen, The Decline of the Judicial Override, 15

Ann. Rev. L. & Soc. Sci. 539, 548-49 (2019). As for Florida law, today’s decision

does not alter section 921.141, Florida Statutes (2019), which still requires a

unanimous jury recommendation before death can be imposed. If the Florida

Legislature considers changing section 921.141 to eliminate the requirement for a

unanimous jury recommendation before a sentence of death can be imposed, the


                                        - 43 -
fact that this legislative change would make Florida an “outlier” will surely be

considered in the ensuing political debate. As for the constitutional questions

addressed in the majority opinion, our decision should be judged solely on the

quality, clarity, and force of its legal analysis—not on speculation regarding

possible future policy choices that are constitutionally entrusted to the political

branch. See art. II, § 3, Fla. Const. (“The powers of the state government shall be

divided into legislative, executive and judicial branches. No person belonging to

one branch shall exercise any powers appertaining to either of the other branches

unless expressly provided herein.”).

      III.   Settled Florida law did not compel “this Court’s conclusion in Hurst
             v. State that the unanimity requirement applied not only to the jury’s
             duty to determine whether to convict the defendant, but upon
             conviction, to the jury’s duty to determine whether the defendant
             should receive the death penalty.”

      Prior to this Court’s decision in Hurst v. State, this Court had repeatedly and

consistently held that Florida’s constitution was not violated by imposition of a

death sentence without unanimous jury determinations during the sentencing

proceeding, see majority op. at 32, including in Poole’s case. Poole v. State, 151

So. 3d 402, 419 (2014). This was the “settled [Florida] law” on the issue until

Hurst v. State. The dissent’s contrary claim, that “settled [Florida] law” compelled

a contrary conclusion in Hurst v. State, is inaccurate. The “settled law” cited by

the dissent is precedent existing “[f]or well more than a century . . . requir[ing] that


                                         - 44 -
a jury unanimously vote to convict a defendant of a criminal offense.” Dissenting

op. at 53. If Florida’s century-plus-old unanimous-verdict requirement so

obviously and necessarily applied to capital sentencing proceedings that it

compelled the conclusion reached for the first time in Hurst v. State, why was this

argument soundly and repeatedly rejected by the entirety of Florida’s judiciary

until 2016, when Hurst v. State was decided?

         Fundamentally, the dissent’s argument, and the Hurst v. State holding, are

premised on a mischaracterization of the jury’s ultimate sentencing

recommendation, and the penultimate considerations leading up to that

recommendation under section 921.141, as factual determinations that constitute

elements of the charged crime. This mischaracterization was neither grounded in

reason nor supported by analysis. Rather, the Hurst v. State majority simply

declared that the jury’s sentencing determinations were “also elements [of the

crime of capital murder] that must be found unanimously by the jury.” 202 So. 3d

at 54.

         The erroneous declaration that the jury sentencing determinations were

“elements” of the crime of capital murder—the sole basis stated for the Hurst v.

State majority’s conclusion that Florida’s Constitution required jury unanimity on

those determinations, id.—was initially corrected in Foster v. State, 258 So. 3d

1248, 1252 (Fla. 2018) (clarifying that “the Hurst [v. State] penalty phase findings


                                         - 45 -
are not elements of the capital felony of first-degree murder”), an opinion joined

by four members of the original Hurst v. State majority. More recently, in Rogers

v. State, 44 Fla. L. Weekly S208 (Fla. Sept. 5, 2019), we explained:

            To the extent that in Perry v. State, 210 So. 3d 630, 633 (Fla.
      2016), we suggested that Hurst v. State held that the sufficiency and
      weight of the aggravating factors and the final recommendation of
      death are elements that must be determined by the jury beyond a
      reasonable doubt, we mischaracterized Hurst v. State, which did not
      require that these determinations be made beyond a reasonable doubt.
      Since Perry, in In re Standard Criminal Jury Instructions in Capital
      Cases and Foster, we have implicitly receded from its
      mischaracterization of Hurst v. State. We now do so explicitly.

Id. at S212.

      Hurst v. State’s implied characterization of the jury’s capital sentencing

determinations as factual findings qualitatively indistinguishable from those made

by a jury when weighing evidence and rendering a guilt-phase verdict is also

incorrect. In reality, the recommendation is an individualized, conscience-based

exercise of discretion. This should be obvious when considering that a juror could

judge a crime to be highly aggravated and hardly mitigated but still recommend a

life sentence based upon some consideration personal to that individual juror. It

should also be obvious from the post-Hurst v. State penalty-phase jury instructions

authorized by this Court, which explain that “different [sentencing] factors or

circumstances may be given different weight or values by different jurors”; that

“each individual juror must decide what weight is to be given to a particular factor


                                       - 46 -
or circumstance”; and that “[r]egardless of the results of each juror’s individual

weighing process—even if [a juror] find[s] that the sufficient aggravators outweigh

the mitigators—the law neither compels nor requires [that juror] to determine that

the defendant should be sentenced to death.” In re Standard Criminal Jury

Instructions in Capital Cases, 244 So. 3d 172, 191 (Fla. 2018).

      While the penultimate “weighing” questions are phrased as fact-like

determinations (and are certainly more fact-like than the recommendation), they

are clearly designed as an analytical tool to guide individual jurors in making their

individual recommendations—not as facts to be determined by the jury as a whole.

Again, this is obvious from the instructions themselves, which do not even require

mitigation findings and tell jurors that the weight given to all factors, as well as

whether a fact is considered mitigating at all, are individual determinations.

      Because the ultimate jury recommendation and penultimate weighing

questions are neither “facts” historically entrusted to jurors under the Florida

Constitution, nor “elements” of a crime, Foster, 258 So. 3d at 1252, the Hurst v.

State majority demonstratively erred in stating that article I, section 22 of the

Florida Constitution supports or compels jury unanimity on anything other than the

existence of an aggravating circumstance. Settled Florida law was to the contrary.

      IV.    Today’s decision does not eliminate a safeguard needed to ensure that
             the death penalty is only applied to the most aggravated and least
             mitigated of murders.


                                         - 47 -
      The Eighth Amendment’s protection against cruel and unusual punishment

requires safeguards to assure that a death sentence is not imposed unless careful

consideration is first given to the “particular acts by which the crime was

committed . . . [and] the character and propensities of the offender,” Woodson v.

North Carolina, 428 U.S. 280, 304 (1976) (quoting Pennsylvania ex.rel. Sullivan v.

Ashe, 302 U.S. 51, 55 (1937)), to appropriately narrow the class of cases in which

the sentence can be imposed. Id. The procedures set forth in section 921.141 were

enacted to comply with the Eighth Amendment in this regard by requiring the State

to prove at least one statutorily defined “aggravating circumstance” before the

death penalty can be considered, § 921.141(2)(b)1., (6), and by providing for the

comprehensive consideration of mitigating circumstances. § 921.141(2)(b)2.,

(3)(a)2., (3)(b), (7). Additionally, before a death sentence can be imposed, the

sentencing judge must enter a written order reflecting findings that “there are

sufficient aggravating factors to warrant the death penalty . . . [and that] the

aggravating factors outweigh the mitigating circumstances reasonably established

by the evidence.” § 921.141(4). Appellate review assures that these standards are

met in every case. § 921.141(5) (“The judgment of conviction and sentence of

death shall be subject to automatic review by the Supreme Court of Florida and

disposition rendered within 2 years after the filing of a notice of appeal. Such

review by the Supreme Court shall have priority over all other cases and shall be


                                         - 48 -
heard in accordance with rules adopted by the Supreme Court.”); see also Pulley v.

Harris, 465 U.S. 37, 45-46 (1984) (discussing the importance of “meaningful

appellate review” in this context). Reviewing Florida’s death penalty procedure,

the Supreme Court has determined that a unanimous jury sentencing

recommendation is not required to comply with the Eighth Amendment’s demand

that discretion to impose the death penalty be appropriately directed and limited.

Spaziano, 468 U.S. at 464 (“[T]he demands of fairness and reliability in capital

cases do not require [jury sentencing].”). Review of this Court’s 2014 opinion

affirming Poole’s sentence of death illustrates why Florida’s system meets Eighth

Amendment demands of “fairness and reliability” without requiring a unanimous

jury recommendation.

      Loretta White and Noah Scott had gone to bed together in their mobile

home. Poole, 151 So. 3d at 406. White was startled awake to find a stranger,

Poole, attempting to rape her. Id. Scott repeatedly tried to stop the rape and, each

time, Poole hit Scott in the face with a tire iron—beating Scott to death. Id. Poole

ignored White’s cries for mercy, which were emphasized by the plea that she was

pregnant; he also beat her with the tire iron, severing some of her fingers as she

tried to defend herself against the attack. Id. After raping, beating, and sexually

assaulting White, Poole left her unconscious in the trailer. Id.




                                        - 49 -
      This murder was obviously highly aggravated by Poole’s contemporaneous

crimes. The trial judge appropriately found that these aggravators were sufficient

to warrant the death penalty under Florida law and that the aggravators outweighed

all mitigation so that a death sentence was appropriate. Id. at 419 (concluding that

the trial court “properly” weighed “the aggravators against the mitigators” and

affirming Poole’s sentence of death). Even with the jury’s 11-1 death

recommendation, this Court appropriately and without hesitation (or dissent on this

issue) determined that Florida’s sentencing procedure had reliably guided and

limited the sentencing decision in this case, as required by the Eighth Amendment.

Id.

                                     Conclusion

      The constitutionality of Poole’s sentence was already decided by this Court

in 2014. Id. Hurst v. State required the trial court to reevaluate the

constitutionality of Poole’s death sentence—and deciding this appeal required this

Court to address the State’s argument that Hurst v. State was incorrectly decided.

For the reasons explained in the majority opinion, and above, it is clear that Poole

suffered no constitutional deprivation in the imposition of his sentence and that we

cannot reach a correct legal result in this appeal without receding in part from

Hurst v. State. I fully agree with the majority’s determination that we should

partially recede from Hurst v. State because the State and those whose interests are


                                        - 50 -
represented by the State in this case, including the victims and their families, relied

heavily on the significant body of precedent upholding as constitutional the

relevant statutory procedures invalidated in Hurst v. State, cf. Johnson v. State, 904

So. 2d 400, 410 (Fla. 2005) (explaining that “Florida’s reliance on its capital

sentencing has been entirely in good faith” in light of the legal precedent upholding

its constitutionality); because the State and society’s interests in the finality of

Poole’s sentence are equally strong, see In re Baxter Int’l, Inc., 678 F.3d 1357,

1367 (Fed. Cir. 2012) (Newman, J., dissenting) (“Finality is fundamental to the

Rule of Law.” (citing S. Pac. R.R. v. United States, 168 U.S. 1, 18 (1897))); and,

because Poole’s reliance interest on the erroneous Hurst v. State precedent is

nonexistent. Majority op. at 38.

LABARGA, J., dissenting.

      Today, a majority of this Court recedes from the requirement that Florida

juries unanimously recommend that a defendant be sentenced to death. In doing

so, the majority returns Florida to its status as an absolute outlier among the

jurisdictions in this country that utilize the death penalty. The majority gives the

green light to return to a practice that is not only inconsistent with laws of all but

one of the twenty-nine states that retain the death penalty, but inconsistent with the

law governing the federal death penalty. Further, the majority removes an

important safeguard for ensuring that the death penalty is only applied to the most


                                          - 51 -
aggravated and least mitigated of murders. In the strongest possible terms, I

dissent.

      The requirement that a jury unanimously recommend a sentence of death

comports with the overwhelming majority of states that have the death penalty. At

the time that Hurst v. Florida was decided, of the thirty-one states that legalized

the capital punishment, only three states—Florida, Alabama, and Delaware—did

not require that a unanimous jury recommend the death penalty. Since that time,

the Delaware Supreme Court declared the state’s capital sentencing statute

unconstitutional, see Rauf v. Delaware, 145 A.3d 430 (Del. 2016), and we held in

Hurst v. State that unanimity was required in Florida. These developments left

Alabama as the sole death penalty state not requiring unanimity—until today.

      Not only does requiring a unanimous recommendation of a sentence of death

comport with the overwhelming majority of death penalty states, it also comports

with federal law governing the imposition of the federal death penalty. Title 18

U.S.C. § 3593(e) (2012) provides that after weighing the aggravating and

mitigating factors and determining that a sentence of death is justified, “the jury by

unanimous vote, or if there is no jury, the court, shall recommend whether the

defendant should be sentenced to death, to life imprisonment without possibility of

release or some other lesser sentence.” (Emphasis added.) As we explained in

Hurst v. State:


                                        - 52 -
      The vast majority of capital sentencing laws enacted in this country
      provide the clearest and most reliable evidence that contemporary
      values demand a defendant not be put to death except upon the
      unanimous consent of the jurors who have deliberated upon all the
      evidence of aggravating factors and mitigating circumstances. By
      requiring unanimity in a recommendation of death in order for death
      to be considered and imposed, Florida will achieve the important goal
      of bringing its capital sentencing laws into harmony with the direction
      of society reflected in all these states and with federal law.

202 So. 3d at 61. By receding from the unanimity requirement, we retreat from the

national consensus and take a huge step backward in Florida’s death penalty

jurisprudence.

      The historical treatment of unanimity in Florida underscores our conclusion

in Hurst v. State that Florida’s right to trial by jury, contained in article I, section

22, of the Florida Constitution, requires that a jury unanimously recommend a

sentence of death. For well more than a century, Florida law has required that a

jury unanimously vote to convict a defendant of a criminal offense. See Ayers v.

State, 57 So. 349, 350 (Fla. 1911) (“Of course, a verdict must be concurred in by

the unanimous vote of the entire jury . . . .”); On Motion to Call Circuit Judge to

Bench, 8 Fla. 459, 482 (Fla. 1859) (“The common law wisely requires the verdict

of a petit jury to be unanimous . . . .”). This settled law compelled this Court’s

conclusion in Hurst v. State that the unanimity requirement applied not only to the

jury’s duty to determine whether to convict the defendant, but upon conviction, to

the jury’s duty to determine whether the defendant should receive the death


                                          - 53 -
penalty. We said: “This recommendation is tantamount to the jury’s verdict in the

sentencing phase of trial; and historically, and under explicit Florida law, jury

verdicts are required to be unanimous.” Hurst, 202 So. 2d at 54. Given Florida’s

long history of requiring unanimous jury verdicts, it defies reason to require

unanimous juries for the conviction of a capital offense but to then reduce the

jury’s collective obligation when determining whether the defendant’s life should

be taken as punishment for that offense.

      As Justice Brennan explained: “[S]tate courts cannot rest when they have

afforded their citizens the full protections of the federal Constitution. State

constitutions, too, are a font of individual liberties, their protections often

extending beyond those required by the Supreme Court’s interpretation of federal

law. The legal revolution which has brought federal law to the fore must not be

allowed to inhibit the independent protective force of state law—for without it, the

full realization of our liberties cannot be guaranteed.” William J. Brennan, Jr.,

State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489,

491 (1977). Our determination that Florida’s right to trial by jury requires

unanimity fell squarely within our role as “the arbiters of the meaning and extent

of the safeguards provided under Florida’s Constitution.” Busby v. State, 894 So.

2d 88, 102 (Fla. 2004). “[W]e have the duty to independently examine and

determine questions of state law so long as we do not run afoul of federal


                                          - 54 -
constitutional protections or the provisions of the Florida Constitution that require

us to apply federal law in state-law contexts.” State v. Kelly, 999 So. 2d 1029,

1043 (Fla. 2008).

      In deciding Hurst v. State, this Court was ever mindful that “where

discretion is afforded a sentencing body on a matter so grave as the determination

of whether a human life should be taken or spared, that discretion must be suitably

directed and limited so as to minimize the risk of wholly arbitrary and capricious

action.” Gregg v. Georgia, 428 U.S. 153, 189 (1976) (citing Furman v. Georgia,

408 U.S. 238 (1972)). Requiring “that a jury must unanimously recommend death

in order to make a death sentence possible serves that narrowing function required

by the Eighth Amendment . . . and expresses the values of the community as they

currently relate to imposition of death as a penalty.” Hurst, 202 So. 3d at 60.

      The imperative for a just application of the death penalty is not a pie-in-the-

sky concept. “The unusual severity of death is manifested most clearly in its

finality and enormity. Death, in these respects, is in a class by itself.” Furman,

408 U.S. at 289 (Brennan, J., concurring). Florida holds the shameful national title

as the state with the most death row exonerations. Since 1973, twenty-nine death

row inmates have been exonerated, and those exonerations have continued to this

very year. Death Penalty Information Center, https://deathpenaltyinfo.org/state-

and-federal-info/state-by-state/florida (last visited December 23, 2019). Given this


                                        - 55 -
history, there is every reason to maintain reasonable safeguards for ensuring that

the death penalty is fairly administered.

      I strongly object to the characterization of this Court’s decision in Hurst v.

State as one where this Court “wrongly took [discretion] from the political

branches.” Majority op. at 39. As the court of last resort in Florida’s third and

co-equal branch of government—whose responsibility it is to interpret the law—

that is what this Court did in Hurst v. State. The constitutionality of a provision of

Florida’s death penalty law is uniquely this Court’s to interpret.

      Death is indeed different. When the government metes out the ultimate

sanction, it must do so narrowly and in response to the most aggravated and least

mitigated of murders. Florida’s former bare majority requirement permitted a jury,

with little more than a preponderance of the jurors, to recommend that a person be

put to death. This Court correctly decided that in Florida, the state and federal

constitutions require much more and, until today, for a “brief and shining

moment,” it did just that.6

      Sadly, this Court has retreated from the overwhelming majority of

jurisdictions in the United States that require a unanimous jury recommendation of

death. In so doing, this Court has taken a giant step backward and removed a



      6. Alan J. Lerner & Frederick Loewe, Camelot, act II, scene 7 (1960).


                                        - 56 -
significant safeguard for the just application of the death penalty in Florida.

      Although in 2017, in response to our decision in Hurst v. State, the

Legislature revised section 921.141(2), Florida Statutes, to require a unanimous

recommendation by the jury, nothing in the majority’s decision today requires the

Legislature to abandon the unanimity requirement. As the majority pointed out in

its decision: “Our decision today is not a comment on the merits of those changes

or on whether they should be retained.” Majority op. at 39.

      For these reasons, I dissent.

An Appeal from the Circuit Court in and for Polk County,
     Jalal A. Harb, Judge - Case No. 532001CF007078A0XXXX

Ashley Moody, Attorney General, Tallahassee, Florida, and Scott A. Browne,
Chief Assistant Attorney General, Tampa, Florida,

      for Appellant/Cross-Appellee

Eric Pinkard, Capital Collateral Regional Counsel, and James L. Driscoll Jr., David
Dixon Hendry, and Rachel P. Roebuck, Assistant Capital Collateral Regional
Counsel, Middle Region, Temple Terrace, Florida; and Mark J. MacDougall and
Z.W. Julius Chen, Washington, District of Columbia, and Parvin Daphne Moyne
of Akin Gump Strauss Hauer & Feld LLP, New York, New York,

      for Appellee/Cross-Appellant




                                        - 57 -
