WINDOM v. STATE

WELLS, J., concurring.

I fully concur in the majority opinion.

I do join in Justice Cantero's excellent opinion on the retroactivity of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and on Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Justice Cantero has done great service with this work. I point out that my joining in Justice Cantero's opinion is not a variance from the views that I have expressed in Bottoson, King, and Duest v. State, 855 So.2d 33 (Fla. 2003), cert. denied, No. 03-8841, ___ U.S. ___, 124 S.Ct. 2023, 158 L.Ed.2d 500 (U.S. 2004), that Florida courts are to continue to follow the United States Supreme Court's precedent expressly approving the constitutionality of Florida's capital sentencing statute. In initial proceedings, trial courts are to continue to apply the capital sentencing statute, which has now been in effect for twenty-nine years. I join Justice Cantero's opinion because I agree with his opinion that retroactivity is a threshold issue and recognizing that Ring is not retroactive will serve to reduce the presentation and argument of other issues related to Ring in post-conviction proceedings in this Court and in the trial courts.

I further agree with Justice Cantero that the adoption of the Teague analysis for retroactivity in post-conviction collateral proceedings would serve the interests of the proper administration of justice in Florida.

CANTERO and BELL, JJ., concur.

PARIENTE, J., specially concurring.

I concur in the majority opinion, and write separately in response to Justice Cantero's specially concurring opinion to explain why I would not address the retroactivity of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), in this case. First, I believe that deciding the issue now is unnecessary in light of our consistent rejection of Ring claims. Second, deciding retroactivity is premature because we have not determined whether Ring has any applicability to Florida's capital sentencing scheme, and a proper retroactivity analysis would need to take into account the substance of any new principle of law. Third, and related to the second point, this Court has never before decided retroactivity before deciding the applicable principle of law, and there is no sound reason for taking this step in this case when there is another basis for denial. Fourth, deciding retroactivity will not save us judicial labor because the issue of retroactivity is also pending before the United States Supreme Court. Lastly, since we can decide this case on other grounds without deciding retroactivity, this appears to me to be an inappropriate case in which to reconsider our precedent of Witt v. State, 387 So.2d 922 (Fla. 1980). I address each of these points in turn.

First, because a majority of this Court has been able to dispose of post-conviction Ring claims on other grounds, there is no need to decide retroactivity now. In every post-conviction appeal in which a Ring claim has been raised and discussed, this Court has determined on the merits that Ring did not warrant reversal of the defendant's sentence of death. This very case serves as an example of a consensus on Ring claims. Six of us have concurred in the majority opinion's rejection of Windom's Ring claim in reliance not only on the decisions in Bottoson and King but also on the prior violent felony aggravator and the unanimous death recommendation. See majority op. at 930.

Majority decisions of this Court in other cases reflect the same or a similar consensus. See Johnston v. State, 863 So.2d 271, 286 (Fla. 2003) (holding that "prior violent conviction [aggravator] alone" satisfies the mandate of Ring), cert. denied, ___ U.S. ___, 124 S.Ct. 1676, 158 L.Ed.2d 372 (2004); Anderson v. State, 863 So.2d 169, 189 (Fla. 2003) (relying in part on unanimous death recommendation and prior violent felony conviction to reject Ring claim), cert. denied, ___ U.S. ___, 124 S.Ct. 1662, 158 L.Ed.2d 363 (2004); Belcher v. State, 851 So.2d 678, 685 (Fla.) (concluding that aggravators of prior violent felony conviction and murder in the course a felony supported by separate guilty verdict exempt sentence from holding in Ring, cert. denied, 540 U.S. 1054, 124 S.Ct. 816, 157 L.Ed.2d 706 (2003)). Whether one concludes that Ring has no application in Florida and that an other-conviction aggravator is a supplemental basis to deny relief under Ring, or that Ring applies and that an other-conviction aggravator is the sole reason for denial of relief under Ring in the absence of a unanimous death recommendation, the fact remains that this Court has reached a consensus that has resulted in the denial of Ring relief in the vast majority of cases. Because a majority of the members of this Court appears to have reached a bottom-line determination that has resulted in the denial of Ring claims without reliance on the decisions in Bottoson and King, I conclude that at this point, we need not take the next step and determine whether Ring applies to cases in which the sentence of death is final.

Second, we should not address retroactivity until and unless any part of Florida's death penalty scheme is declared unconstitutional. Deciding retroactivity before applicability would be putting the proverbial cart before the horse. This is because under Witt an essential consideration in determining retroactivity is whether the decision is of fundamental significance. See Witt, 387 So.2d at 931. We explained:

The doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications. Thus, society recognizes that a sweeping change of law can so drastically alter the substantive or procedural underpinnings of a final conviction and sentence that the machinery of post-conviction relief is necessary to avoid individual instances of obvious injustice.

Third, this Court has never before decided retroactivity as a threshold matter before deciding the merits of the substantive issue. To do so now when it is unnecessary to reach the issue in this case would not be sound precedent because the nature of the new principle of law and the issue of whether that principle should be given retroactive effect are interrelated. In short, we cannot determine whether Ring constitutes a "development of fundamental significance," Witt, 387 So.2d at 931, until we have ascertained its effect, if any, on Florida's capital sentencing scheme. In other situations in which we have addressed retroactivity of a new rule of law, we knew precisely what rule of law we were applying. See, e.g., State v. Stevens, 714 So.2d 347, 348 (Fla. 1998) (holding that decision limiting sentence enhancement for attempted murder of a law enforcement officer to attempted first-degree murder was retroactive); State v. Woodley, 695 So.2d 297, 298 (Fla. 1997) (determining that decision holding that attempted felony murder was a nonexistent crime was not retroactive). In contrast, because we cannot yet ascertain the effect of Ring in Florida, we cannot yet reliably determine retroactivity. If and when either this Court or the United States Supreme Court determines in a specific case that Ring has invalidated a Florida death sentence in some respect, it is that decision's retroactivity that will be in issue, not Ring itself, which did not directly apply to the Florida death scheme.

Further, there is scant precedent in the decisions of other courts for determining the retroactivity of a new rule of law before deciding whether the rule would apply in a particular case. Justice Cantero cites to Turner v. Crosby, 339 F.3d 1247 (11th Cir. 2003), cert. denied, No. 03-9251, ___ U.S. ___, 124 S.Ct. 2104, 158 L.Ed.2d 718 (U.S. 2004), as a case in which the court decided that Ring was not retroactive without determining whether it applied to Florida's death scheme. See specially concurring op. at 939. However, the Eleventh Circuit in Turner decided nonretroactivity as an alternative to its holding that the claim was procedurally barred when presented initially in a federal habeas petition, arguably making the discussion of retroactivity dicta. See 339 F.3d at 1282 ("Alternatively, if Turner is not procedurally barred from bringing a Ring claim, Ring does not apply retroactively to Turner's § 2254 petition in any event.").

Fourth, a decision by this Court that Ring is not retroactive will not promote greater judicial efficiency. The issue of the retroactivity of Ring is presently pending review in the United States Supreme Court. See Summerlin v. Stewart, 341 F.3d 1082 (9th Cir.), cert. granted in part sub nom. Schriro v. Summerlin, 540 U.S. 1045, 124 S.Ct. 833, 157 L.Ed.2d 692 (2003). While Summerlin is pending, defendants will continue to raise the issue at the state level to preserve it for eventual federal review. In his specially concurring opinion, Justice Cantero suggests that deciding retroactivity now will clarify the Court's position to the growing number of appellants who have argued that this Court has already decided that Ring applies retroactively. The fact that some defendants have made this assertion incorrectly should not press us into deciding retroactivity prematurely.

Finally, and for some of the same reasons discussed above, I do not consider this the appropriate case in which to reconsider our decision in Witt. Although I am not averse to revisiting the proper retroactivity standard in applying precedent from the United States Supreme Court, I think it prudent to await a case in which retroactive application would require either that a conviction be reversed or a sentence vacated. Because a majority of this Court would deny Ring relief to Windom even if we were to conclude that Ring applies retroactively, this is not the proper case to revisit Witt.

In conclusion, I believe that because of the uncertainties in the law created by Ring and yet to be resolved in this State, we would be acting unnecessarily, prematurely, and with no significant conservation of judicial resources in determining at this point whether Ring is retroactive.

CANTERO, J., specially concurring.

I concur in the majority's opinion. I write separately because the appellant, like many others before him (and many others that will follow), argues that the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), renders unconstitutional Florida's death penalty sentencing scheme. I believe we should finally decide the question of whether, even if Ring did apply in Florida (members of this Court disagree on whether it does, and under what circumstances), it would apply retroactively. I would hold that it does not.

I also write separately because I believe that we should answer questions about the retroactivity of decisions of the United States Supreme Court based on that Court's own standards, as articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and not based on the now-outmoded test we announced in Witt v. State, 387 So.2d 922, 925 (Fla. 1980).

I discuss below (I) the history of Ring and our discussions about whether it applies in Florida; and (II) whether Ring should apply retroactively, by (A) explaining the different standards for determining retroactivity, and then analyzing the retroactivity of Ring under (B) the Teague standard or (C) the Witt standard.

I begin by analyzing the decision in Ring and our subsequent interpretations. In June 2002, the United States Supreme Court decided Ring v. Arizona, in which it held that a jury, not a judge, must determine facts relevant to whether the death penalty is the appropriate punishment. This decision affected the death penalty law of many states. All states where, in capital cases, a judge was partially or totally responsible for the sentencing decision had to determine whether and under what circumstances Ring applied and whether it required anywhere from a slight change to a total revamping of the sentencing process. In this Court, no majority view has emerged. We have not considered, however, whether, if Ring did apply, it would apply retroactively. In my view, this is a threshold issue that should precede any discussion of Ring's applicability.

The Supreme Court's decision in Ring merely applied another case, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), decided two years earlier, to death penalty cases. Therefore, to understand Ring and its holding, we must first analyze Apprendi. The defendant in Apprendi was charged with possession of a firearm for an unlawful purpose, which under New Jersey law carried a maximum sentence of ten years' imprisonment. 530 U.S. at 468-70, 120 S.Ct. 2348. The trial court also found, however, that the defendant committed the offense while motivated by racial bias. The judge therefore imposed an enhanced eighteen-year sentence under the state's "hate crime" statute. The issue in the case was "whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt." Id. at 469, 120 S.Ct. 2348. The Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348.

Two years after Apprendi, the Supreme Court decided Ring, which applied Apprendi to death penalty cases. Although the Court in Apprendi had excluded death penalty cases from its holding, 530 U.S. at 497, 120 S.Ct. 2348, in Ring it retreated from that position. The Court instead stated that under the Sixth Amendment right to a jury trial, "[c]apital defendants, no less than noncapital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." 536 U.S. at 589, 122 S.Ct. 2428.

We first analyzed the effect of Ring on Florida law in two cases decided four months after Ring. See Bottoson v. Moore, 833 So.2d 693, 695 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002); King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). Neither case commanded a majority, however. In Bottoson, three justices joined the per curiam opinion denying relief. That opinion noted that the United States Supreme Court has repeatedly upheld Florida's capital sentencing statute. It then cited that court's admonition that "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [other courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), quoted in Bottoson, 833 So.2d at 695.

Several justices wrote separate opinions in Bottoson explaining their concerns with Ring, some believing that Ring may apply to Florida's sentencing scheme in some circumstances. No majority view emerged, however.

In King, 831 So.2d at 143, decided the same day as Bottoson, the Court was similarly splintered. This time, the per curiam opinion, based on essentially the same reasoning as the one in Bottoson, garnered only two votes. Again, the justices filed separate opinions, but no majority view prevailed.

Neither Bottoson nor King, therefore, finally settled the question of whether Ring applies in Florida. As if to emphasize that fact, virtually every post-conviction appeal filed in this Court continues to raise the Ring issue. In the ensuing months, we have repeatedly denied relief under Ring in both direct appeals and post-conviction cases, relying for the most part on citations to Bottoson and King. Chief Justice Anstead has reminded us, however, that neither Bottoson nor King garnered a majority.

Despite the ever-growing mountain of cases raising this issue, we have come no closer to forging a majority view about whether Ring applies in Florida than we did in Bottoson and King. See Allen v. State, 854 So.2d 1255, 1263 (Fla. 2003) (noting that "we have not yet as a Court determined whether Ring has any applicability to Florida's death penalty scheme or if so, whether any aspect of that holding would be retroactive to cases already final") (Pariente, J., specially concurring). Some of us, however, have staked out clear positions. For example, Justice Wells, Justice Quince, and I rely on the United States Supreme Court's admonition not to assume that the Court has overruled its prior decisions unless it does so explicitly. Chief Justice Anstead, on the other hand, believes that Ring applies in Florida and that it requires a jury to determine all aggravating factors. And Justice Pariente believes that Ring applies but that its requirements are satisfied as long as the jury finds one aggravating factor — which in most cases will be the prior violent felony aggravator — because that finding renders the defendant eligible for the death penalty.

Curiously, although both Bottoson and King involved post-conviction relief — that is, the convictions of both defendants had become final — and although the State contended that Ring did not apply retroactively, only Justice Shaw, in his separate opinion in Bottoson, has analyzed whether Ring applies retroactively. 833 So.2d at 711-19. Even after Bottoson and King, none of our cases have addressed that issue; and neither Chief Justice Anstead nor Justice Pariente, who believe that Ring requires a Florida jury to determine either some (J. Pariente) or all (C.J. Anstead) aggravators, has analyzed whether such requirements apply retroactively.

The United States Supreme Court has long considered retroactivity a threshold issue, which must be considered first in determining whether a defendant seeking post-conviction relief is entitled to the benefits of a new decision. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), in which the Supreme Court changed the standard for determining whether a newly created criminal rule should be applied retroactively, the Court noted that retroactivity "is properly treated as a threshold question." Id. at 300, 109 S.Ct. 1060 (plurality opinion). Florida courts, too, consider the issue of retroactivity as a threshold matter. See State v. Will, 645 So.2d 91, 94 (Fla. 3d DCA 1994); Dupont v. State, 514 So.2d 1159, 1160 (Fla. 2d DCA 1987).

Recently, the Eleventh Circuit considered retroactivity as a threshold issue. On appeal from denial of federal habeas relief, the court refused to consider whether Florida's capital sentencing scheme violates Ring because it determined the issue was procedurally barred and that under Teague, Ring did not apply retroactively anyway. See Turner v. Crosby, 339 F.3d 1247 (11th Cir. 2003), cert. denied, No. 03-9251, ___ U.S. ___, 124 S.Ct. 2104, 158 L.Ed.2d 718 (U.S. 2004).

Considering retroactivity first makes sense because, if we address the merits of a claim in a post-conviction case but then decide that a prior case does not apply retroactively, our discussion of the merits becomes mere dictum. Yet by discussing the merits, we risk creating confusion in the bench and bar because many — perhaps even we — will interpret our discussion as a holding or will assume that we have implicitly held the prior decision retroactive. We should not announce broad statements of law, or even address such issues — as we did in Bottoson and King — unless and until we decide that such a discussion would apply to the case under review.

That this Court has not routinely addressed retroactivity first, as Justice Pariente contends, specially concurring op. at 933, provides no justification for continuing the practice. Before considering the merits of any claims raised in the appeals and petitions before it, this Court generally addresses a number of asserted procedural and jurisdictional bars. We determine whether the issue was preserved, whether a claimed error constitutes fundamental error that may be raised for the first time on appeal, or whether notice of appeal was timely filed. The retroactivity of new decisions presents a similar procedural issue.

Nor does it matter, as Justice Pariente suggests, specially concurring op. at 934, that the issue of Ring's retroactivity is currently pending in the United States Supreme Court. Unless this Court adopts my view that we should apply a Teague analysis to retroactivity issues (see part II A below), that case will not determine Ring's retroactivity under this Court's Witt analysis (which is precisely why I believe we should adopt the same test the Supreme Court uses).

Because we continue to address the Ring issue on the merits, even in post-conviction appeals, a growing number of petitioners have argued that we already have decided that Ring applies retroactively. Of course that is not the case. As I stated earlier, only one justice on this Court has even addressed the issue of retroactivity. But the fact that we have not addressed it, coupled with our repeated discussion of the merits of Ring claims, apparently has created this impression. Therefore, because many post-conviction appeals we decide raise the Ring issue, because the issue of retroactivity should be a threshold question in a post-conviction case determining the applicability of a new case, and because a majority of this Court thus far has been unable to agree on whether Ring applies to Florida's death penalty scheme, we should address whether Ring would apply retroactively. I now turn to that issue.

When the United States Supreme Court or this Court renders a decision that affects criminal defendants, the question becomes: who may benefit from the decision? We have held that such decisions apply in all cases to convictions that are not yet final — that is, convictions for which an appellate court mandate has not yet issued. Smith v. State, 598 So.2d 1063, 1066 (Fla. 1992) (holding that "any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final"), limited by Wuornos v. State, 644 So.2d 1000, 1007 n. 4 (Fla. 1994) (reading Smith"to mean that new points of law established by this Court shall be deemed retrospective with respect to all non-final cases unless this Court says otherwise").

Once a conviction is final, however, the state acquires an interest in the finality of the convictions. In Witt, we emphasized the importance of finality:

The importance of finality in any justice system, including the criminal justice system, cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end. In terms of the availability of judicial resources, cases must eventually become final simply to allow effective appellate review of other cases. There is no evidence that subsequent collateral review is generally better than contemporaneous appellate review for ensuring that a conviction or sentence is just. Moreover, an absence of finality casts a cloud of tentativeness over the criminal justice system, benefiting neither the person convicted nor society as a whole.

Therefore, the issue is whether such cases can be applied to defendants whose convictions already were final when the decision was rendered. Both federal and state courts, sometimes using different standards for determining retroactivity, have divided on whether Ring applies retroactively. The Seventh and Eleventh Circuits, as well as four state supreme courts, have held that Ring does not apply retroactively. See Turner, 339 F.3d at 1284; Lambert v. McBride, 365 F.3d 557 (7th Cir. 2004); State v. Towery, 204 Ariz. 386, 64 P.3d 828, 836, cert. dismissed, 539 U.S. 986, 124 S.Ct. 44, 156 L.Ed.2d 702 (2003); Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 619 (2003); State v. Lotter, 266 Neb. 245, 664 N.W.2d 892, 908 (2003), petition for cert. filed, No. 03-7361 (U.S. Nov. 7, 2003); Colwell v. State, 118 Nev. 807, 59 P.3d 463, 471 (2002), cert. denied, 540 U.S. 981, 124 S.Ct. 462, 157 L.Ed.2d 370 (2003). The Ninth Circuit, and one state supreme court, have held that it does. See Summerlin v. Stewart, 341 F.3d 1082, 1121 (9th Cir.) (en banc), cert. granted, 540 U.S. 1045, 124 S.Ct. 833, 157 L.Ed.2d 692 (2003); State v. Whitfield, 107 S.W.3d 253, 268 (Mo. 2003).

In part II A below, I analyze which standard for retroactivity should apply: the Witt standard we have been using, or the Teague standard the United States Supreme Court adopted nine years after Witt. In parts II B and II C, I conclude that under either standard, Ring does not apply retroactively.

The first question in determining retroactivity is which standard should apply. Although we have long used the standard announced in Witt, valid reasons exist for reconsidering it. Witt was based on then-existing United States Supreme Court jurisprudence on retroactivity. Since Witt, however, that jurisprudence has drastically changed.

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court first attempted to establish some standards for determining the retroactivity of new rules. The issue was whether Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which made the exclusionary rule for evidence applicable to the states, applied retroactively. 381 U.S. at 636-40, 85 S.Ct. 1731. To answer the question, the Court adopted a three-part test that considered (a) the purpose to be served by the new rule, (b) the extent of reliance on the prior rule, and (c) the effect retroactive application of the new rule would have on the administration of justice. Using that standard, the Court held that Mapp would only apply to trials commencing after that case was decided. 381 U.S. at 636-40, 85 S.Ct. 1731. Two years later, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court applied the Linkletter factors and held that the rule requiring exclusion of identification evidence tainted by exhibiting the accused for identifying witnesses before trial in the absence of counsel also did not apply retroactively. 388 U.S. at 300, 87 S.Ct. 1967. Stovall also held that the new rule would not apply even to cases pending on direct review. Id. at 300-01, 87 S.Ct. 1967.

In Witt, decided in 1980, we adopted the Linkletter standards. In that case, we held that a change in the law does not apply retroactively " unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance." 387 So.2d at 931. As to consideration (c), we stated that most major constitutional changes fall into one of two categories: (1) changes "which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties" and (2) those "which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall and Linkletter" (the Linkletter factors). 387 So.2d at 929.

In Witt, we were concerned that an expansive view of retroactivity would undermine the finality of judicial decisions. We noted that "[t]he reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice." 387 So.2d at 925 (quoting Addonizio, 442 U.S. at 184, 99 S.Ct. 2235). We also warned that "[t]he doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications." Id. We "declare[d] our adherence to the limited role for post-conviction relief proceedings, even in death penalty cases." Id. at 927 (emphasis added). Although when we decided Witt the United States Supreme Court's jurisprudence of retroactivity was extremely complex, we distilled the three essential factors outlined above as stated in Stovall and Linkletter.

Essentially, then, in Witt we adopted a narrow standard for the retroactivity of decisions, limiting retroactivity to cases involving constitutional issues of fundamental significance.

Nine years after we adopted the Linkletter factors in Witt, the United States Supreme Court revamped its retroactivity analysis. The plurality recognized that "[t]he Linkletter retroactivity standard has not led to consistent results," 489 U.S. at 302, 109 S.Ct. 1060, and that "commentators have `had a veritable field day' with the Linkletter standard, with much of the discussion being `more than mildly negative.'" Id. at 303, 109 S.Ct. 1060. Much of the criticism concerned the Court's refusal to apply new rules even to cases still pending on direct review. See, e.g., Johnson v. New Jersey, 384 U.S. 719, 733-35, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (holding that under the Linkletter standard Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), applied only to trials commencing after that decision had been announced). Therefore, by the time it decided Teague, the Court already had rejected that part of Linkletter in favor of applying new rules to cases pending on direct review. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

But, as the Supreme Court recognized in Teague, 489 U.S. at 305, 109 S.Ct. 1060, the problems with Linkletter were not limited to its refusal to apply new rules to cases pending on direct review. The Linkletter standard also led to disparity in the treatment of similarly situated defendants collaterally attacking their convictions. Whether a defendant received the benefit of a particular decision often depended on the jurisdiction. Id. In addition, the Linkletter factors are, to an extent, vague and malleable. The extent to which courts and the public have relied on a prior rule is difficult to calculate, and the effect retroactive application of a new rule will have on the administration of justice can sometimes be unpredictable.

To resolve these criticisms of Linkletter, in Teague the Supreme Court adopted the approach of Justice Harlan, expressed in cases such as Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments in part and dissenting in part), and Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). Under that approach, new rules should be applied to all cases pending on direct review and generally not be applied to cases on collateral review. The Court therefore held that decisions announcing new constitutional rules would only be applied retroactively on collateral review under two circumstances: (1) decisions placing conduct beyond the power of the government to proscribe; and (2) decisions announcing a "watershed" rule of criminal procedure that is "implicit in the concept of ordered liberty." 489 U.S. at 311, 109 S.Ct. 1060 (quoting Mackey v. United States, 401 U.S. at 693, 91 S.Ct. 1160 (Harlan, J., concurring in judgments in part and dissenting in part)). In other words, a rule "must implicate the fundamental fairness of the trial." Id. at 312, 109 S.Ct. 1060.

The new standard in Teague substantially narrowed the circumstances in which the Supreme Court's adoption of new criminal rules apply retroactively. After Teague, such rules are presumed not to.

Although under Teague state courts are free to adopt more expansive standards for retroactivity, 28 state supreme courts, as well as the District of Columbia, have adopted the Teague standard at least to cases stemming from a federal constitutional right, and the vast majority to all questions of retroactivity. Only six state supreme courts have decided against adopting Teague's retroactivity standards to questions of federal constitutional law. The remaining states have not reassessed their standards for retroactivity in light of Teague.

Florida is one of those states that have not addressed Teague in the fourteen years since it was decided. As several district courts of appeal have noted, even after Teague this Court has continued to apply the Linkletter factors. We have never consciously considered Teague, however. In fact, we have only mentioned the case once, in describing the Eleventh Circuit's denial of habeas relief to a defendant sentenced to death. See Glock v. Moore, 776 So.2d 243, 248 (Fla. 2001).

We should now adopt Teague in cases considering the retroactivity of decisions of the United States Supreme Court. We should not apply a different standard for determining the retroactivity of United States Supreme Court decisions than that Court itself applies. Consistency among the states — and between the state and federal courts — in applying decisions of the United States Supreme Court demands that, to the extent possible, standards for retroactivity be uniform. Otherwise, the retroactivity of a decision of the Supreme Court will depend on the jurisdiction in which the defendant was prosecuted. Although such a result is sometimes unavoidable, we should attempt as much as possible to limit such lack of uniformity. Also, even more than Linkletter, the Teague standards respect the finality of decisions, a concept we considered of utmost importance in Witt.

The Court's decision to alter its retroactivity standard in Teague was based on two overriding considerations: the interests of comity and finality. 489 U.S. at 308, 109 S.Ct. 1060. Although the concept of comity is not relevant to our analysis, the concept of finality is. Regarding the importance of finality, the Court noted that "[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect." Id. at 309, 109 S.Ct. 1060. See also Mackey, 401 U.S. at 691, 91 S.Ct. 1160 (Harlan, J., concurring in judgments in part and dissenting in part) ("No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing that a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation. . . ."), quoted in Teague, 489 U.S. at 309, 109 S.Ct. 1060.

Of course, this compelling interest in finality applies just as strongly to state court determinations of retroactivity. In fact, it is the very foundation of our analysis in Witt. As we acknowledged there, Florida Rule of Criminal Procedure 3.850 was originally patterned after the federal habeas corpus rule and was promulgated to provide "a method of reviewing a conviction based on a major change of law, where unfairness was so fundamental in either process or substance that the doctrine of finality had to be set aside." Witt, 387 So.2d at 927. In Witt, we recognized that only "a sweeping change of law . . . [that] drastically alter[s] the substantive or procedural underpinnings of a final conviction and sentence," id. at 925, should be applied retroactively because applying any other standard would "destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit." Id. at 929-30. Clearly, our interests in finality and the narrow retroactive application of new legal principles coincides with the interests the Supreme Court articulated in Teague. As illustrated in section II A of this opinion, however, the Supreme Court has found that the Linkletter factors, the underpinning of our retroactivity analysis in Witt, do not well serve these interests. Therefore, I believe we should adopt the retroactivity analysis announced in Teague in determining whether we should retroactively apply new constitutional rules emanating from the United States Supreme Court.

As I demonstrate below, although I believe we should adopt the Teague standard, I do not believe it ultimately matters in determining whether Ring applies retroactively. Whether we analyze the issue under Teague (as I do in part II B below) or under Witt (as I do in part II C), the result is the same: Ring does not apply retroactively.

In Teague, the Supreme Court held that new constitutional rules of criminal procedure would not apply to final cases, with two exceptions. 489 U.S. at 311, 109 S.Ct. 1060. Thus, the first consideration is whether Ring announced a new constitutional rule and, if so, whether the rule is procedural or substantive. See Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (stating that Teague"by its own terms applies only to procedural rules" and that the "distinction between substance and procedure is an important one in the habeas context"). If the rule is substantive, it must be applied retroactively. If it is procedural, it will not be applied retroactively unless (1) it places conduct beyond the power of the government to proscribe; or (2) it announces a "watershed" rule of criminal procedure that is "implicit in the concept of ordered liberty." 489 U.S. at 311, 109 S.Ct. 1060 (quoting Mackey, 401 U.S. at 693, 91 S.Ct. 1160 (Harlan, J., concurring in judgments in part and dissenting in part)).

Of course, by overruling its prior decision in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), to apply its more recent decision in Apprendi to death penalty cases, the Court necessarily issued a new constitutional rule. See Teague, 489 U.S. at 301, 109 S.Ct. 1060 (explaining that for retroactivity purposes a new rule "breaks new ground or imposes a new obligation on the States or the Federal Government," i.e., "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final"). Therefore, the remaining questions are (1) whether the rule is procedural or substantive; and if procedural, (2) whether one of the two exceptions to the rule of nonretroactivity applies. 489 U.S. at 311, 109 S.Ct. 1060. I address these questions below.

The next step is to determine whether the new constitutional rule in Ring is procedural or substantive. The decision in Ring, however, simply applied the Court's decision in Apprendi to the death penalty context. Therefore, before considering whether Ring created a substantive rule, I will first discuss whether Apprendi did.

The Supreme Court in Apprendi acknowledged that it was addressing New Jersey's criminal procedure, and not its substantive law. See Apprendi, 530 U.S. at 475, 120 S.Ct. 2348 ("The substantive basis for New Jersey's enhancement is thus not at issue; the adequacy of New Jersey's procedure is."). The effect of its rule was solely to shift factfinding responsibility from the judge to the jury and to increase the burden of proof for those facts that increase the penalty for a crime beyond its statutory maximum.

Several federal and Florida appellate courts have concluded that Apprendi's holding constituted a new procedural rule that did not apply retroactively. In Curtis v. United States, 294 F.3d 841, 843 (7th Cir.), cert. denied, 537 U.S. 976, 123 S.Ct. 451, 154 L.Ed.2d 334 (2002), for example, the court noted that " Apprendi is about nothing but procedure — who decides a given question (judge versus jury) and under what standard (preponderance versus reasonable doubt)." In Figarola v. State, 841 So.2d 576 (Fla. 4th DCA 2003), notice invoking discretionary jurisdiction filed, No. SC03-586 (Fla. Apr. 7, 2003), the Fourth District Court of Appeal recently noted that the Supreme Court itself characterized Apprendi as a procedural rule. Id. at 577 n. 3.

In Ring, the Court merely extended Apprendi to the death penalty context to hold that the Sixth Amendment requires that the aggravating factors in capital cases be found by a jury, not a judge alone. See 536 U.S. at 609, 122 S.Ct. 2428. The Court itself described the question before it in Ring as "who decides, judge or jury." 536 U.S. at 605, 122 S.Ct. 2428. Therefore, as the Eleventh Circuit recently acknowledged, "[j]ust as Apprendi `constitutes a procedural rule because it dictates what fact-finding procedure must be employed,' Ring constitutes a procedural rule because it dictates what fact-finding procedure must be employed in a capital sentencing hearing." Turner, 339 F.3d at 1284 (citations omitted). The Eleventh Circuit "agree[d] with other courts who have concluded that because Apprendi was a procedural rule, it automatically follows that Ring is also a procedural rule." Id.; see also Lambert, 365 F.3d at 562 ("Because the rule in Apprendi is not retroactive . . ., it stands to follow that the rule in Ring, an Apprendi child, is not retroactive for the same reasons."); Towery, 64 P.3d at 833 ("Logic dictates that if Apprendi announced a procedural rule, then, by extension, Ring . . . did also."); cf. Cannon v. Mullin, 297 F.3d 989, 994 (10th Cir. 2002) (concluding, in the context of a successive habeas petition, that "[i]t is clear . . . that Ring is simply an extension of Apprendi to the death penalty context"). In Turner, the Eleventh Circuit explained why Ring affected only procedure:

Ring changed neither the underlying conduct the state must prove to establish a defendant's crime warrants death nor the state's burden of proof. Ring affected neither the facts necessary to establish Florida's aggravating factors nor the state's burden to establish those factors beyond a reasonable doubt. Instead, Ring altered only who decides whether any aggravating circumstances exist and, thus, altered only the fact-finding procedure.

Only one court has held that Ring imposed a substantive rather than a procedural rule. In Summerlin, 341 F.3d at 1108, the Ninth Circuit recently concluded that Ring redefined Arizona's capital murder law, making murder and capital murder separate substantive offenses. The Ninth Circuit concluded that the rule in Ring is substantive and that Teague does not apply. In my opinion, Summerlin misinterprets the analysis in Ring.

The Supreme Court in Ring did not substantively change Arizona's death penalty law, as the Ninth Circuit claims. To the contrary, it deferred to the Arizona Supreme Court's interpretation of that law. The Court "[r]ecogniz[ed] that the Arizona court's construction of the State's own law is authoritative." 536 U.S. at 603, 122 S.Ct. 2428. Based on the Arizona Supreme Court's interpretation, the Court then stated, quoting from Apprendi, that "[b]ecause Arizona's enumerated aggravated factors operate as `the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury." 536 U.S. at 609, 122 S.Ct. 2428 (citation omitted). The Supreme Court's characterization of its holding in Apprendi, which it expressly stated addressed procedure, was no different. See id. at 602, 122 S.Ct. 2428. The Court explained that "[t]he right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death." Id. at 609, 122 S.Ct. 2428. In other words, the Court's analyses in Apprendi and Ring are identical. The hate crime aggravator in Apprendi operated the same way the aggravator necessary for imposition of the death penalty operated in Walton and Ring. Thus, the Court's holding in both Apprendi and Ring only specified the procedure required for determining a fact that increases a defendant's punishment beyond the statutory maximum. See Summerlin, 341 F.3d at 1126 (Rawlinson, J., dissenting) ("The linkage in Ring of the Walton death penalty factors and the Apprendi hate crime aggravator is fatal to the majority's syllogism."). The rule of Ring is thus procedural, not substantive.

Because the rule in Ring is procedural and presumed not to be retroactive, the next step in the Teague analysis is to determine whether the rule falls within one of Teague's two exceptions: a rule that places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe, or a rule that requires the observance of procedures implicit in the concept of ordered liberty. 489 U.S. at 307, 109 S.Ct. 1060. Ring obviously does not fall within the first exception. Ring does "not decriminalize any class of conduct or prohibit a certain category of punishment for a class of defendants." McCoy, 266 F.3d at 1256-57. As I explain below, it does not meet the requirements of the second, either.

The Court in Teague explained that the second exception applies to a watershed rule "without which the likelihood of an accurate conviction is seriously diminished" and which alters our understanding of the bedrock procedural elements necessary to the fundamental fairness of a proceeding. 489 U.S. at 313, 109 S.Ct. 1060. The Court emphasized that this was a narrow exception, noting that it was "unlikely that many such components of basic due process have yet to emerge." Id. at 313, 109 S.Ct. 1060. Ring's effect at most is to place the responsibility for factfinding in the penalty phase on a jury. It implicates neither the accuracy of the conviction nor the fundamental fairness of the process.

In Ring, Arizona contended that allowing a judge to find aggravating factors would better assure the fairness of the death penalty. The Court responded that "[t]he Sixth Amendment jury trial right, however, does not turn on the relative rationality, fairness, or efficiency of potential factfinders." 536 U.S. at 607, 122 S.Ct. 2428 (emphasis added). While allowing a judge to act as the factfinder "might be `an admirably fair and efficient scheme of criminal justice,'" the Court commented, the Constitution grants a right to a jury trial. Id. at 607, 122 S.Ct. 2428 (quoting Apprendi, 530 U.S. at 498, 120 S.Ct. 2348 (Scalia, J., concurring)).

Because it relied solely on the Sixth Amendment right to jury trial, the Court did not even suggest that its holding reflected concerns for the accuracy of the factfinding or the fairness of the penalty phase proceeding. As the Eleventh Circuit stated in determining that Ring does not apply retroactively, " Ring is based on the Sixth Amendment right to a jury trial and not on a perceived, much less documented, need to enhance accuracy or fairness of the fact-finding in a capital sentencing context." Turner, 339 F.3d at 1286. See also Colwell, 59 P.3d at 473 (noting that "we believe it is clear that Ring is based simply on the Sixth Amendment right to a jury trial, not on a perceived need to enhance accuracy in capital sentencings, and does not throw into doubt the accuracy of death sentences handed down by three-judge panels in this state").

The one court that has held Ring to apply retroactively under Teague overlooks this aspect of Ring. In Summerlin, the Ninth Circuit examined in detail Arizona's death penalty sentencing procedures and held that Ring created a watershed rule of procedure because a "requirement of capital findings made by a jury will improve the accuracy of Arizona capital murder trials" and that failure to have a jury act as factfinder during the penalty phase was a structural defect that affected the framework of the trial. 341 F.3d at 1116. The Supreme Court's own statements in Ring, cited above, belie such an interpretation. The Supreme Court did not weigh the relative merits of judge and jury factfinding and conclude that jury trials produced more accurate results. It simply held that the Constitution granted the absolute right to jury factfinding (whenever particular facts increased the maximum penalty provided by statute) regardless of its fairness or accuracy.

Other decisions of the Supreme Court concerning the right to a jury trial confirm that it does not consider such decisions watershed rules that implicate the concept of ordered liberty. For example, the Supreme Court has not previously treated denial of the right to have a jury decide an element of an offense as structural error. See, e.g., Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In Neder, the defendant was convicted of tax fraud after trial by jury in which the judge, in accordance with extant law, refused to instruct the jury on the essential element of materiality and decided the question himself. Before Neder's conviction became final, the Court decided United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), holding that materiality is an element that must be decided by the jury. In determining whether harmless error analysis applied to the trial court's undisputed error, the Court commented that structural error, which is not subject to such analysis, is a limited class of constitutional error that renders a trial fundamentally unfair, such that the trial cannot reliably serve as a basis for the determination of guilt or innocence or for criminal punishment. 527 U.S. at 8-9, 119 S.Ct. 1827. The Court held that failure to submit an element to the jury did not constitute structural error and recognized that although failure to submit an element of an offense to the jury violates the right to a jury trial, such error was subject to harmless error analysis. 527 U.S. at 9, 12, 119 S.Ct. 1827.

More recently, the Supreme Court held that an unpreserved Apprendi error did not constitute plain error. In United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the federal indictment charged the defendants with drug offenses, without specifying an amount. At sentencing, the court found a quantity that permitted imposition of enhanced sentences. The Supreme Court recognized that Apprendi error occurred, but concluded that even if the error affected "substantial rights," it did not seriously affect the fairness, integrity, or public reputation of the proceedings. 535 U.S. at 633-34, 122 S.Ct. 1781.

Finally, in yet another case, the Supreme Court held, under the less-stringent Linkletter standard, that its holding in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that the basic Sixth Amendment right to a jury trial applies to the States through the Fourteenth Amendment, did not apply retroactively. See DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). The Court stated that "[t]he values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial." Id. at 634, 88 S.Ct. 2093. If the right to a jury trial itself does not implicate such fundamental rights as to apply retroactively, I fail to see how a mere subset of that right — the right to have a jury determine facts relevant to sentencing — can do so.

Even if the Ninth Circuit were correct in Summerlin that Ring addressed structural error — despite the cases contradicting such a conclusion — the Supreme Court has clarified that classifying an error as structural does not necessarily implicate the second Teague exception. See Tyler, 533 U.S. at 666-67 n. 7, 121 S.Ct. 2478. The Court again emphasized that "the second Teague exception is reserved only for truly `watershed' rules." Id. at 667 n. 7, 121 S.Ct. 2478.

In light of the Supreme Court's own precedent and its own analysis in Ring, which rested solely on the Sixth Amendment right to jury trial, the new procedural rule announced in Ring fails to meet the requirements of the second Teague exception. Therefore, Ring does not apply retroactively.

Even if we ignore the United States Supreme Court's change of its own jurisprudence and continue applying the outdated Linkletter standard, the result is the same: Ring does not apply retroactively. As stated above, under that standard, a change in the law does not apply retroactively " unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance." 387 So.2d at 931. Clearly, the holding of Ring meets the first two prongs of Witt, i.e., the United States Supreme Court issued a new rule that is constitutional in nature. See Witt, 387 So.2d at 930. Therefore, the question of Ring's retroactive application rests on the third prong of Witt: whether the rule constitutes a development of fundamental significance.

In Witt, we stated that most major constitutional changes fall within one of two categories: changes "which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties" and those "which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall and Linkletter." 387 So.2d at 929. The holding in Ring, like the holding in Apprendi, does not fall within the first category — it does not prohibit the government from criminalizing certain conduct. Therefore, the question is whether Ring is of sufficient magnitude to require retroactive application. This leads us to the Linkletter factors: (a) the purpose to be served by the new rule, (b) the extent of reliance on the prior rule, and (c) the effect retroactive application of the new rule would have on the administration of justice. See Witt, 387 So.2d at 926. I address each factor in turn.

The first factor under the Linkletter test is the purpose the new rule is intended to serve. Witt, 387 So.2d at 926. As I explained at section II B 1 above, Ring creates a rule of procedure. It merely applied the Apprendi rule to death penalty cases. Thus, Ring's holding, too, constitutes a procedural rule. See Turner, 339 F.3d at 1284 (noting that "because Apprendi was a procedural rule, it axiomatically follows that Ring is also a procedural rule"). This transfer of factfinding responsibility thus does not impugn the fairness of any prior penalty phase process in death penalty cases. See Witt, 387 So.2d at 929 (stating that a change in law does not warrant retroactive application "in the absence of fundamental and constitutional law changes which cast serious doubt on the veracity or integrity of the original trial proceeding").

Other jurisdictions have arrived at the same conclusion. In Towery, 64 P.3d at 835, the Arizona Supreme Court examined Ring under the equivalent of the Linkletter test. Regarding the first prong of the test, the Arizona court concluded that because Ring was "not designed to improve [the] accuracy" of criminal trials, the rule's purpose did not support its retroactive application. Id. (citing Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), which stated that retroactive application is appropriate if a new rule is designed to enhance accuracy of criminal trials); accord Turner, 339 F.3d at 1286 (noting that " Ring is based on the Sixth Amendment right to a jury trial and not on a perceived, much less documented, need to enhance accuracy or fairness of the fact-finding in a capital sentencing context").

The United States Supreme Court has held that the right to a jury trial alone is not a sufficient basis for retroactive application of a new rule. In DeStefano, 392 U.S. at 633-34, 88 S.Ct. 2093, the Court, in applying the Linkletter test, reiterated that it did not believe that trial before a judge alone is unfair. Both the Missouri and Arizona Supreme Courts relied on DeStefano in concluding that this factor weighs against retroactivity. See Towery, 64 P.3d at 834; Whitfield, 107 S.W.3d at 268.

For these reasons, I too conclude that this prong — the purpose to be served by the rule — weighs against the retroactive application of Ring.

The second factor under the Linkletter test is the extent of reliance on the old rule. Witt, 387 So.2d at 926. This factor, too, weighs against retroactivity. The United States Supreme Court has examined and upheld Florida's capital sentencing statute for over a quarter of a century. See Bottoson, 833 So.2d at 695 (citing cases). Literally hundreds of defendants have been sentenced to death, and 58 inmates executed, since reinstatement of Florida's death penalty in 1972. In addition, as noted above, in Apprendi, decided in 2000, the Court held that the new rule did not apply in capital proceedings and specifically upheld its prior decision on the issue in Walton, 497 U.S. at 639, 110 S.Ct. 3047, which it then overruled in part in Ring. See Towery, 64 P.3d at 835 (noting that "[c]ertainly the Arizona justice system acted in good faith in applying the holding of Walton until the Court overruled its decade-old decision"). Thus, the extent of the reliance on Florida's death penalty statute has been vast and in good faith.

The third and final factor is the effect of retroactive application on the administration of justice. Witt, 387 So.2d at 926. In my opinion, applying Ring retroactively would have a potentially drastic effect on the administration of the death penalty in Florida. Over 360 inmates currently reside on Death Row. Many of their convictions are decades old. The retroactive application of Ring would require consideration of each of these cases to determine whether Ring requires new penalty phase sentencing proceedings. A substantial percentage of those cases will require new proceedings. The difficulties of such an enormous undertaking include lost evidence and unavailable witnesses. In addition, new proceedings would cause the further painful disruption of the lives of the families and friends of victims and affect the finality of judgments. To apply Ring retroactively would "destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit." Witt, 387 So.2d at 929-30.

Accordingly, none of the three Linkletter factors weighs in favor of the retroactive application of Ring. I would hold that Ring does not apply retroactively and would deny relief as to any Ring claim presented in this case and all future post-conviction proceedings on this basis alone.

I concur in affirming the trial court's denial of relief in this case. In addressing the Ring issue, given the number of petitions we regularly receive arguing violations of Ring, and given our prior lack of consensus about whether Ring applies in Florida, I would decide whether, even if Ring applied in Florida, it would apply retroactively to cases on collateral review. I would then adopt the standard for determining retroactivity enunciated in Teague and, applying that standard, hold that Ring does not apply retroactively. Even if we continue to apply the factors we adopted in Witt, however, the result would be the same.

WELLS and BELL, JJ., concur.

ANSTEAD, C.J., concurring in part and dissenting in part.

I concur in the majority opinion in all respects except for its discussion of the impact of the U.S. Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).