Death is different, the court is divided, and death row inmates are split into two groups.

'Holding Hurst retroactive to when the United States Supreme Court decided Ring would not destroy the stability of the law, nor would it render punishments uncertain and ineffectual.'

In the wake of the U.S. Supreme Court declaring Florida's death penalty sentencing process unconstitutional, a divided Florida Supreme Court grappled with how to carry out the ultimate punishment with fairness and finality, and the majority decided December 22 to split 384 death row inmates into two groups.

Those whose death cases were final when Ring v. Arizona, 536 U.S. 584, was decided on June 24, 2002, will not be granted a new penalty phase hearing.

That was bad news for Mark James Asay, whose death warrant was signed on January 8, 2016, and was stayed after the landmark Hurst v. Florida decision, in which the U.S.S.C. found Florida's death sentencing process an unconstitutional violation of the Sixth Amendment right to trial by jury because judges rather than juries find facts necessary to impose the death penalty. Hurst was premised on Ring. Asay did not challenge Florida's capital sentencing procedure as unconstitutional pursuant to Ring until October 17, 2002. On December 22, the court lifted the stay of execution for Asay entered on March 2, 2016.

But those death row inmates whose sentences became final after the Ring decision should be afforded new sentencing hearings with Hurst applied retroactively.

That was good news for John F. Mosley, who was granted a new penalty phase hearing based upon the U.S.S.C.'s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and the Florida Supreme Court's decision in Hurst v. State, 202 So. 3d 40 (Fla. 2016). Mosley's death sentence became final after the U.S.S.C. ruled in Ring. Therefore, the Florida Supreme Court decided, Hurst should apply retroactively to Mosley.

"[B]ecause Hurst v. Florida held our capital sentencing statute unconstitutional under the Sixth Amendment to the United States Constitution, and Hurst further emphasized the critical importance of a unanimous verdict within Florida's independent constitutional right to trial by jury under article I, section 22, of the Florida Constitution, the purpose of these holdings weighs heavily in favor of retroactive application," the majority of justices agreed in Mosley's case.

"[I]t is undeniable that Hurst v. Florida changed the calculus of the constitutionality of capital sentencing in this state. Thus, this factor weighs in favor of granting retroactive...