Whether Florida's capital sentencing scheme violates the Sixth Amendment right to a jury trial by requiring the jury to find only aggravating factors but not the ultimate determination that the aggravating factors outweigh the mitigating circumstances

QUESTIONS PRESENTED This Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016) invalidated Florida’s capital sentencing scheme which had been in effect since December 8, 1972. On remand in Hurst v. State, 202 So. 3d 40, 57-58 (Fla. 2016), the Florida Supreme Court took the opportunity to review its capital sentencing scheme and attempt to correct deficiencies which this Court had not reached. Informed by this Court’s ruling in Hurst v. Floridathat the Sixth Amendment right to a jury trial required that under Florida’s capital sentencing scheme the jury must be the finder of every fact, and thus every element, necessary for the imposition of the death penalty, the Florida Supreme Court analyzed what those facts were: These necessary facts include, of course, each aggravating factor that the jury finds to be proven beyond a reasonable doubt. However, the imposition of a death sentence in Florida has in the past required, and continues to require, additional factfinding that now must be conducted by the jury...[U]nder Florida law, ‘The death penalty may be imposed only where sufficient aggravating circumstances exist that outweigh mitigating before a sentence of death may be considered by the trial court in Florida, the jury must find the existence of the aggravating factors proven beyond a reasonable doubt, that the aggravating factors are sufficient to impose death, and that the aggravating factors outweigh the mitigating circumstances. Hurst v. State, 202 So. 3d at 53. (citations omitted) (Florida Supreme Court’s emphasis). Noting the history in Florida of requiring unanimous jury verdicts as to elements of a crime, the Florida Supreme Court then held: ii [A]ll 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 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. Id. at 57-58. (emphasis added). The Florida Supreme Court’s opinion in Hurst v. State interpreted Fla. Stat. § 921.141 and found that it identified the ‘elements’ of capital murder that a jury was required to find to essentially “convict” someone of capital first degree murder: “We also conclude that, just as elements of a crime must be found unanimously by a Florida jury, all these findings necessary for the jury to essentially convict a defendant of capital murder—thus allowing imposition of the death penalty—are also elements that must be found unanimously by the jury. Thus, we hold that in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.” Id. at 53-54. In doing so, the Florida Supreme Court thus recognized that “capital murder” is a higher offense than first degree murder, with additional elements that must be found by a jury. The Florida Supreme Court further recognized that these iii elements of the substantive crime of capital murder were longstanding and appeared in the statute. See id. at 53 (‘As the Supreme Court long ago recognized in Parker v. Dugger, 498 U.S. 308 (1991), under Florida law, ‘The death penalty may be