Whether the Eighth and Fourteenth Amendments require retroactive application of the Florida Supreme Court's decision in Hurst v. State to capital defendants whose convictions and sentences became final before the decision was issued

QUESTIONS PRESENTED--CAPITAL CASE Context In Hurst v. State, 202 So. 3d 40, 57-58 (Fla. 2016), the Florida Supreme Court held: [A]1l1 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. (Emphasis added). Chapter 2017-1, Laws of Florida, was enacted on March 13, 2017. It revised § 921.141, F.S. by confirming and incorporating Hurst v. State and its construction of the statute and the elements necessary for the range of punishment to include death. Foster v. State, 258 So.3d 1248, 1251 (Fla. 2018) (“section 921.141, Florida Statutes, which was revised to incorporate the Hurst requirements; and chapter 2017-1, Laws of Florida, which amended section 921.141 to require that a jury's recommendation of death be unanimous.”). At the time of the decision in Hurst v. State, Article X, section 9 of the Florida Constitution provided: “Repeal of criminal statutes.—Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime i previously committed.” The Florida Supreme Court has explained that “the purpose of the ‘Savings Clause’ [wa]ls to require the statute in effect at the time of the crime to govern the sentence an offender receives for the commission of that crime.” Horsley v. State, 160 So. 3d 393, 406 (Fla. 2015). The homicide at issue in Hurst v. State occurred on May 2, 1998. When the Florida Supreme Court identified the elements of what the State had to prove before the range of punishment included death, it was determining what the state of Florida’s criminal law was on May 2, 1998, the date of the homicide for which Mr. Hurst was being prosecuted.! The Florida Supreme Court’s reading of the statute in Hurst v. State was different from how the statute had been previously understood. It changed the facts or elements that were necessary for a death sentence to be authorized. The Florida Supreme Court had previously regarded the existence of one aggravating factor as all that was necessary to authorize the imposition of death. State v. Steele, 921 So. 2d 538, 545 (Fla. 2005) (“Under the law, therefore, the jury may recommend a sentence of death so long as a majority concludes that at least one aggravating circumstance exists.”). See also Ault v. State, 53 So. 3d 175, ‘Identifying the elements of a criminal offense or the facts to be proven beyond a reasonable doubt before a particular sentence is authorized is a matter of Florida substantive law and a legislative function under the separation of powers provision in the Florida Constitution. See § 921.002 (1) (“The provision of criminal penalties and of limitations upon the application of such penalties is a matter of predominantly substantive law and, as such, is a matter properly addressed by the Legislature.”) ; Smith v. State, 537 So. 2d 982, 986 (Fla. 1989). ii 206 (Fla. 2010) (“Under Florida law, in order to return an advisory sentence in favor of death a majority of the jury must find beyond a reasonable doubt the existence of at least one aggravating circumstance listed in the capital sentencing statute.”). Subsequently in Card v. Jones, 219 So. 3d 47, 48 (Fla. 2017), the Florida Supreme Court vacated a death s