          Supreme Court of Florida
                                   ____________

                                   No. SC17-453
                                   ____________

                           JAMES ARMANDO CARD,
                                  Petitioner,

                                         vs.

                              JULIE L. JONES, etc.,
                                  Respondent.

                                [May 4, 2017]
                            CORRECTED OPINION

PER CURIAM.

      James Armando Card petitions this Court for a writ of habeas corpus seeking

relief under Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616 (2016), and Hurst v.

State (Hurst), 202 So. 3d 40 (Fla. 2016) petition for cert. filed, No. 16-998 (U.S.

Feb. 13, 2017). We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

      Card’s sentence of death, which his penalty phase jury recommended by a

vote of eleven to one, became final when the United States Supreme Court denied

Card’s petition for writ of certiorari on June 28, 2002. See Card v. State, 803 So.

2d 613 (Fla. 2001) cert. denied Card v. Florida, 536 U.S. 963 (2002); see also Fla.

R. Crim. P. 3.851(d)(1)(B). We have held that Hurst applies retroactively to
“defendants whose sentences became final after the United States Supreme Court

issued its opinion in Ring [v. Arizona, 536 U.S. 584 (2002)].” Mosley v. State,

209 So. 3d 1248, 1276 (Fla. 2016). Thus, Hurst applies retroactively to Card,

whose sentence became final four days after the United States Supreme Court

issued its opinion in Ring.

      Accordingly, we must determine whether the Hurst error in Card’s penalty

phase proceeding was harmless beyond a reasonable doubt. “[I]n the context of a

Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to

prove beyond a reasonable doubt that the jury’s failure to unanimously find all the

facts necessary for imposition of the death penalty did not contribute to [the] death

sentence.” Hurst, 202 So. 3d at 68. As applied to the right to a jury trial with

regard to the factual findings necessary to impose a sentence of death, it must be

clear beyond a reasonable doubt that a rational jury would have unanimously found

that each aggravating factor was proven beyond a reasonable doubt, that the

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

factors outweighed the mitigating circumstances. See id. at 44.

      We conclude that the State cannot establish that the Hurst error in Card’s

case was harmless beyond a reasonable doubt. In Card’s case, the jury did not

unanimously make the requisite factual findings and did not unanimously

recommend a sentence of death. Instead, the jury recommended the sentence of


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death by a vote of eleven to one. Card, 803 So. 2d at 619. This Court has no way

of knowing if the jury unanimously found each aggravating factor, whether the

aggravating factors were sufficient to impose a death sentence, or whether the

aggravating factors outweighed the mitigating circumstances. Further, this Court

cannot speculate why the one juror who voted to recommend a sentence of life

imprisonment determined that a sentence of death was not the appropriate

punishment. Thus, we conclude that the Hurst error in Card’s case was not

harmless. The petition for writ of habeas corpus is hereby granted. Accordingly,

we vacate the death sentence and remand this matter to the circuit court for a new

penalty phase.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, POLSTON, and LAWSON, JJ., dissent.

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

Original Proceeding – Habeas Corpus

Leor Veleanu, Federal Community Defender, Philadelphia, Pennsylvania; and
Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,
Northern District of Florida, Tallahassee, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney
General, Tallahassee, Florida,

      for Respondent

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