Whether Petitioner's death sentence can remain intact even though his jury was not instructed that the State had to prove all of the elements of capital murder 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). (Emphasis added). Chapter 2017-1, Laws of Florida, was enacted on March 13, 2017. It confirmed and incorporated into Florida’s capital sentencing scheme the ruling in Hurst v. State and its construction of the statute and its identification of 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. The homicide at issue in Card occurred in 1981, and the conviction of first degree murder was final in 1984. Card v. State, 453 So. 2d 17, 18 (Fla. 1984). However, the death sentence was not final until i June 28, 2002. In Card v. Jones, the case was remanded for a new proceeding at which a jury will have to unanimously find the State proved the elements of capital murder beyond a reasonable doubt before a death sentence can be reimposed. In other words, the jury will have to convict Mr. Card of capital murder, a higher degree of murder than first degree murder. Only if the jury finds that the State carried its burden will the sentencing judge be authorized to consider death as a sentence as to the 1981 homicide at issue. In contrast to Card v. Jones, the homicide at issue in Petitioner’s case occurred in 1992, eleven years later. Mr. Jimenez stands convicted of first degree murder, not capital murder. The Florida Supreme Court has refused to require the State to obtain a conviction of capital murder in Petitioner's case and has left the death sentence intact even though it outside the range of punishment for first degree murder. 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 sentencing statute made by a defendant accused of committing a homicide in 2004: 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 ii first-degree murder is punishable. Thus, it does not constitute an ex post facto law, and Victorino is therefore not entitled to relief. Victorino, 241 So. 3d at 50. The Florida Supreme Court held that the revised statute enacted on March 13, 2017 which conformed to its 2016 ruling in Hurst v. State, was retrospectively applicable to a