Whether a death sentence can remain intact when the jury did not unanimously find the elements of capital murder proven beyond a reasonable doubt

QUESTIONS PRESENTED--CAPITAL CASE Context In Hurst v. State, 202 So. 3d 40, 57-58 (Fla. 2016), the Florida Supreme Court held: [A]11 the findings necessary for imposition of a death sentence are “elements” that must be found by a jury, and Florida law has long required that jury verdicts must be unanimous. Accordingly, we reiterate our holding that before 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 circumstances, and unanimously recommend a sentence of death. We equally emphasize that by so holding, we do not intend to diminish or impair the jury's right to recommend a sentence of life even if it finds aggravating factors were proven, were sufficient to impose death, and that they outweigh the mitigating circumstances. See Brooks v. State, 762 So.2d 879, 902 (Fla.2000) . Chapter 2017-1, Laws of Florida, was enacted on March 13, 2017, and confirmed and incorporated into the capital sentencing scheme the decision in Hurst v. State and its construction of the statute and its identification the elements of capital murder. In Card v. Jones, 219 So. 3d 47, 48 (Fla. 2017), the Florida Supreme Court vacated a death sentence on the basis of Hurst v. State because all of the elements necessary to convict of capital murder had not been found proven beyond a reasonable doubt by a unanimous jury at a 1999 resentencing which was not final until after June 24, 2002. The Florida Supreme Court remanded the case for a new proceeding at which a jury would have to unanimously find the elements of capital murder proven i by the State beyond a reasonable doubt before a death sentence could be reimposed. In another words, at the new proceedings the jury would have to find the elements necessary to convict Mr. Card of capital murder proven beyond a reasonable doubt before the judge would be authorized to reimpose a death sentence. The homicide at issue in Card v. Jones was committed on June 3, 1981. See Card v. State, 453 So. 2d 17, 18 (Fla. 1984). The homicide at issue in Petitioner’s case occurred on October 13, 1981. In Victorino v. State, 241 So. 3d 48 (Fla. 2018), the Florida Supreme Court rejected an ex post facto challenge to the retrospective application of the ruling in Hurst v. State and the revised capital sentence statute to case in which the homicide at issue was committed in 2004, twelve years before Hurst v. State: Florida's new capital sentencing scheme, which requires the jury to unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that sufficient aggravating factors exist to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death before the trial judge may consider imposing a sentence of death, see § 921.141(2), Fla. Stat. (2017), neither alters the definition of criminal conduct nor increases the penalty by which the crime of first-degree murder is punishable. Thus, it does not constitute an ex post facto law, and Victorino is therefore not entitled to relief. Victorino v. State, 241 So. 3d at 50. Applying the revised statute enacted on March 13, 2017 in order to conform with the ruling in Hurst v. State, retrospectively does not violate ex post facto because it did not alter the definition of criminal ai conduct nor increase the penalty for capital murder as that offense was defined in Hurst v. State. Victorino v. State, 23 So. 3d 87 (Fla. 2009). Questions 1, Given that the elements of capital murder which were identified by the Florida Supreme Court in Hurst v. State will be applied to determine if James Card is guilty of capital murder for a homicide committed in 1981 and subject t