1. On July 3, 2003, this Court issued an opinion denying Mr. Wright=s appeal and his habeas petition in the above-entitled matters. On July 15, 2003, a brief seven-day unopposed extension of time was sought for preparing and submitting this motion for rehearing. The motion for extension was accompanied by a motion to toll. This motion for rehearing is timely filed. Fla.R.App.Pro. 9.330(a).

2. In denying Mr. Wright=s appeal and habeas petition, this Court established new law regarding a litigant=s obligation to file a motion for rehearing. This Court stated:

On direct appeal, we affirmed the trial court=s order finding there were no mitigating circumstances. See Wright, 473 So.2d at 1282. Wright did not raise this claim in a motion for rehearing following our opinion in his direct appeal. We therefore conclude that he abandoned this claim. See Lightbourne, 841 So.2d 431, 442 (Fla. 2003)(finding that a claim which could have been raised in a motion for rehearing but was not was abandoned and procedurally barred from consideration in a postconviction proceeding); see also Garcia v. State, 816 So.2d 554, 569 (Fla. 2002). Therefore, to the extent Wright argues this Court erred in failing to find the existence of mitigation, this claim is procedurally barred.

Slip Op. at 33. However, in Lightbourne, this Court indicated that after its failure to address an issue raised in a prior post-conviction appeal, the issue was abandoned by the failure to file a motion for rehearing. In Garcia, this Court indicated that after its failure to address the appellant=s Tedder claim in a prior appeal granting a new trial, the issue was abandoned by the failure to file a motion for rehearing. These cases do not involve the situation present in Mr. Wright=s case. On direct appeal, this Court specifically addressed the matter and said there were no mitigating circumstances after it struck an aggravating circumstance. This is not a situation where this Court failed to address an issue raised by Mr. Wright.

3. The new rule announced by this Court in Mr. Wright=s case means that in a motion for rehearing a litigant must raise every single disagreement with the analysis contained in this Court=s opinion or risk abandoning any argument that this Court erred. Certainly, this has not previously been the rule of this Court. Recently, the State of Florida opposed a motion for rehearing in Jennings v. Crosby, Case No. SC02-2143, in which it stated its understanding of this Court=s rule regarding motions for rehearing:

The motion is improper because it constitutes an attempt to re-argue the case. Fla. R. App. P. 9.330(a); Whipple v. State, 431 So.2d 1011 (Fla. @d DCA 1983). The motion for rehearing does nothing more than quarrel with this Court=s decision. That is not the purpose of a motion for rehearing. Department of Leadership Housing, Inc., 322 So.2d 7, 9 (Fla. 1975); Elliott v. Elliott, 648 So.2d 137 (Fla. 4^th DCA 1994); Parker v. Baker, 499 So.2d 843 (Fla. 2d DCA 1986).

Response to Motion for Rehearing, Jennings v. Crosby, Case No. SC02-2143, at 1. This Court=s ruling in Mr. Wright=s case is not the application of a regular and consistent rule of this Court applying a procedural bar. Johnson v. Mississippi, 486 U.S. 578, 587 (1988). To the contrary, this Court=s ruling creates a trap for the unwary. This Court should grant a rehearing to reconsider its adoption of a requirement that litigants must set forth their disagreements with an opinion in a rehearing or risk a finding that the failure to set forth disagreements constitutes an abandonment of the issue upon which the disagreement arises.

4. In denying Mr. Wright=s first argument in his appeal, this Court overlooked the facts and the record that establish that the police reports made by Wanda Brown, Kimberly Holt, and Charlene Luce were not disclosed to Mr. Wright=s defense team prior to his trial. Wright, Slip Op. at 9 (AAbsent a showing that Wright did not know, or could not have known, of the alleged misconstrued facts during the first postconviction proceeding, the trial court in this proceeding properly denied relief.@). Thus, this Court relies upon a factual determination made in the prior 3.850 proceeding that is absolutely not supported by the record. Id. at 9-10 (AWe will not entertain a second appeal of claims that were raised, or should have been raised, in a prior postconviction proceeding.@). The undisputed evidence in this case is that the police reports at issue implicated Henry Jackson and Clayton Strickland. This Court=s failure in the prior appeal or in this appeal to actually consider that fact is a violation of due process. See Parker v. Dugger, 498 U.S. 308, 321 (1991)(Athere is a sense in which the court did not review Parker=s sentence at all@).

5. Additionally, in the proceeding below, Mr. Wright presented the testimony of the trial investigator to establish that the finding of fact made in the prior proceeding was absolutely wrong. Mr. Wright presented this evidence in order to establish that the ends of justice required reconsideration in light of the erroneous factfinding made previously. State v. McBride, 2003 Fla. LEXIS 805, at 10-11 (Fla. May 15, 2003)(AThis Court has long recognized res judicata will not be invoked where it would defeat the ends of justice.@). Yet, contrary to the law of this State as set forth in McBride, this Court indicated that the principles of finality could only be overcome not by a showing of a miscarriage of justice, but by a showing that Mr. Wright could not have previously known that the factfinding was false. Certainly, the residents of the State of Florida have the right to expect that this Court will not let justice be vanquished in the name of finality. See Amrine v. State, 102 S.W.3d 541 (Mo. 2003).

6. As the Ninth Circuit has explained, Aevidence that someone other than the defendant may have committed the crime is critical exculpatory evidence that the defendant is entitled to adduce.@ Gray v. Klauser, 282 F.3d 633, 649 (9^th Cir. 2002), quoting Thomas v. Hubbard, 273 F.3d 1164, 1177 (9^th Cir. 2001). Yet, Mr. Wright was precluded from presenting the wealth of evidence implicating Henry Jackson and Clayton Strickland because the State did not turn this critical evidence over to the defense.

7. In denying Mr. Wright=s first argument in his appeal, this Court addressed Mr. Wright=s claim that in the prior 3.850 proceeding, the State presented false testimony that Henry Jackson and Clayton Strickland were eliminated as suspects when they passed polygraph examinations. This Court stated in its opinion, AWright admits that he sought production of the polygraph results for the first time in 1997.@ Slip Op. at 11. This Court=s assertion is factually wrong and legally insignificant. In 1988, Mr. Wright sought all files and records regarding his case from both the State Attorney and the Sheriff=s Department. He was led to believe that he received all of the files and records. However, Mr. Wright=s collateral counsel was advised in 1991 that not all of the public records had been disclosed, and an additional packet was provided. Based upon the new 119 disclosures, an amended Rule 3.850 motion was filed. Again, Mr. Wright was led to believe that full 119 compliance had now occurred. Mr. Wright=s collateral counsel subsequently learned in 1996 in another Putnam County case involving Manuel Colina that the Putnam County Sheriff=s Office had systemically failed to properly respond to all prior Chapter 119 requests in every capital case (PC-R2. 704, 2194). Based upon this new information, Mr. Wright sought and received extensive Chapter 119 discovery during which additional Chapter 119 records were disclosed.

8. At every turn--in 1988, in 1991 and in 1996--Mr. Wright=s counsel was advised that polygraph records did not exist. And no polygraph records of Henry Jackson or Clayton Strickland have to this day been disclosed. While deposing Taylor Douglas pursuant to the discovery allowed because of the revelation in Mr. Colina=s case that the Putnam County Sheriff=s Department had systematically not complied with public records requests, Mr. Wright again asked about the missing polygraph records. It was then that Taylor Douglas abandoned his previous testimony that Jackson and Strickland had been polygraphed. This Court overlooked the record when it concluded that AWright admits that he sought production of the polygraph results for the first time in 1997.@

9. Moreover, this Court=s statement in this regard demonstrates a complete misapprehension of Mr. Wright=s claim. Taylor Douglas= testimony in 1988 was false or misleading, as he revealed during his testimony in 1997. The law is clear. The prosecution not only has the constitutional duty not to deceive through the presentation of false or misleading evidence, United States v. Bagley, 473 U.S. 667 (1985), but also has a duty to alert the defense when a State=s witness gives false testimony, Napue v. Illinois, 360 U.S. 264 (1959), and to refrain from deception of either the court or the jury. Mooney v. Holohan. 294 U.S. 103, 112 (1935). A prosecutor must not knowingly rely on false impressions to obtain or uphold a conviction. Alcorta v. Texas, 355 U.S. 28 (1957). Where, as here, the State uses false or misleading argument to deliberately deceive the court in order to convince the court to deny post-conviction relief, due process is violated.

10. Moreover, the defense is not obligated to assume that the State has violated its constitutional obligations. The State=s duty to disclose exculpatory evidence is applicable even though there has been no request by the defendant. Strickler v. Greene 119 S.Ct. 1936, 1948 (1999). The State also has a duty to learn of any favorable evidence known to individuals acting on the government's behalf. Id. It is the State=s duty to comply with due process. This Court overlooked this principle when it held that it was Mr. Wright=s obligation to divine that the State did not honor its constitutional duty and that it had presented false or misleading testimony.

11. In addressing Mr. Wright=s Brady claim, this Court failed to comply with the United States Supreme Court=s requirement that cumulative consideration be given to the various pieces of undisclosed exculpatory evidence. Moreover, this Court completely failed to follow the decision in Strickler when it relied upon its statement in Carroll v. State, 815 So.2d 601, 620 (Fla. 2002), that the State was not obligated to disclose Aall information regarding its investigatory work.@ Slip Op. at 14. As was explained in Strickler, the duty to disclose exists. The questions that arise when non-disclosure of evidence occurs are whether the undisclosed evidence was favorable to the defense and the failure to disclose undermines confidence in the outcome.

12. This Court=s opinion stated, A[t]he fact of other criminal activities and the existence of other criminals in the same neighborhood where the murder occurred does not affect the guilt or punishment of this defendant.@ Slip Op. at 15. This assertion is legally wrong. As the Ninth Circuit has explained, Aevidence that someone other than the defendant may have committed the crime is critical exculpatory evidence that the defendant is entitled to adduce.@ Gray v. Klauser, 282 F.3d 633, 649 (9^th Cir. 2002), quoting Thomas v. Hubbard, 273 F.3d 1164, 1177 (9^th Cir. 2001). The fact that the undisclosed evidence could have led to a witness who saw Jackson and Strickland drinking in the empty lot next to the victim=s house during the hours that were within the estimated time of death is hardly speculative and would have been admissible.

13. This Court misapplied its own jurisprudence when it denied Mr. Wright=s newly discovered evidence claim by stating, A[n]one of these documents existed at the time of Wright=s trial in 1983, so they are not >newly discovered= evidence.@ Slip Op. at 16. However, that is precisely why the information contained in the documents qualifies as newly discovered evidence--it could not have been discovered by trial counsel through the exercise of diligence. Scott v. Dugger, 604 So.2d 465, 468-69 (Fla. 1992)(co-defendant=s life sentence which was entered subsequently to defendant=s death sentence qualified as newly discovered evidence because it occurred after the imposition of the death sentence against the defendant). This Court=s analysis overlooked the law as to newly discovered evidence claims.

14. In denying Mr. Wright=s cumulative consideration argument, this Court said, AWright may not relitigate the merits of his first postconviction claims.@ Slip Op. at 16. This Court completely overlooked the fact that Mr. Wright had been provided previously undisclosed exculpatory evidence that had to be evaluated cumulatively with the undisclosed evidence presented in the prior postconviction proceedings. By this Court=s misapprehension of Kyles v. Whitley, 514 U.S. 419, (1995), the State was permitted to deprive Mr. Wright of cumulative consideration of the undisclosed exculpatory evidence as a result of its improper piecemeal disclosures. This Court further failed to discuss or acknowledge the numerous nondisclosures that were established in the record. For example, this Court did not address any of the undisclosed evidence presented in Exh. 47. This Court completely overlooked that evidence and failed to apply the proper standard under Kyles and Strickler.

15. In denying Mr. Wright=s ineffective assistance of counsel claim, this Court indicated that it would not consider the evidence supporting the ineffectiveness claim that was previously presented. In this regard, this Court overlooked the fact that the materiality standard contained in Kyles applies to ineffective assistance of counsel claims as well. This Court overlooked United States Supreme Court=s jurisprudence.

16. This Court also overlooked the evidence from the prior hearing that demonstrate the effect that Mr. Pearl=s conflict had on his performance as counsel. A fair reading of the entire record in this case establishes that Mr. Wright did not receive the representation to which he was entitled.

17. As to Judge Perry=s conflict arising out of his undisclosed relationship with the Putnam County Sheriff, this Court indicated that the status would not warrant disqualification, but never discussed the testimony that explained the significance of the Aspecial deputy@ card. However, the testimony established that the tie between the Sheriff and Judge Perry did warrant disqualification.

18. While denying Mr. Wright=s claim of a due process violation when the sentencing order was prepared ex parte by the State, this Court acknowledged that the issue was Araised by the defendant in the supplemental 3.850 motion,@ but Awas not addressed in the trial court=s order denying postconviction relief.@ Slip Op. at 21 n.4. This Court thereupon denied relief indicating that there was no evidence in this case to support the claim. This Court overlooked the fact that Mr. Wright was not afforded the opportunity to present evidence on this claim. An evidentiary hearing was not granted on this claim. Mr. Wright was in fact denied the opportunity to depose Judge Perry in the years prior to his death. In determining whether an evidentiary hearing is warranted the allegations are supposed to be taken as true. This Court overlooked that well established law. Mr. Wright should have been granted an evidentiary hearing on this constitutional claim.

19. This Court also overlooked the fact that Mr. Wright=s due process claim included the fact that under Judge Perry=s standard practice, his 1988 order denying postconviction relief would have been prepared by the State ex parte. It also overlooked the fact that Judge Perry should have disqualified himself. At a minimum, an evidentiary hearing was required. See Roberts v. State, 840 So.2d 962 (Fla. 2002).

20. This Court denied Mr. Wright=s due process claim under Jones v. State, 740 So.2d 520 (Fla. 1999), saying that Mr. Wright=s claim was conclusory. However, in his briefs, Mr. Wright spelled out the years that passed while Judge Nichols sat on Mr. Wright=s request to depose Judge Perry. Because of the delay, Judge Perry died, and Mr. Wright lost the opportunity that was granted Rickey Roberts and led to a resentencing. See Roberts v. State, 840 So.2d 962 (Fla. 2002). The delay is the prejudice denying Mr. Wright due process.

21. This Court denied Mr. Wright=s claim that Sochor v. Florida, 504 U.S. 527 (1992), was violated in his case. This Court indicated that Mr. Wright=s claim premised upon a new decision from the United States Supreme Court could not be presented in a Rule 3.850 motion. This Court overlooked its decision in James v. State, 615 So.2d 668 (Fla. 1993), where this Court found that a United States Supreme Court decision that established that this Court erroneously denied an issue raised on direct appeal could be raised in a Rule 3.850 proceeding.

22. As to Mr. Wright=s habeas petition, this Court acknowledged that the habeas process is Amost often used in death penalty cases to challenge the effectiveness of appellate counsel.@ Slip Op. at 23. As to the matters raised in Claim I of the petition, this Court refused to address Mr. Wright=s due process claim that the State possessed information that was relevant to the issues raised in Mr. Wright=s direct appeal and that this information would have established that this Court erred in its analysis denying the appeal. The State breached its duty under due process and failed to disclose the information necessary for this Court to correctly analyze the issues presented. Since the undisclosed evidence deprived this Court of the information necessary to correctly resolve the issues, the claim raised by Mr. Wright Arelates to this Court=s opinion on direct appeal.@ In this Court=s opinion, two pages before this Court ruled that this claim was improperly raised in a habeas petition and should have been presented in a 3.850 motion, this Court indicated that issues Arelat[ing] to this Court=s opinion on direct appeal@ are Ainappropriate for 3.850 proceedings.@ This Court overlooked the obvious catch-22 that it created when it refused to consider the State=s violation of its due process obligation to disclose pertinent information during a direct appeal.

23. In denying the habeas petition, this Court indicated that Mr. Wright=s allegations that direct appeal counsel=s failure Ato address the State=s misrepresentations in [Mr. Wright=s] reply brief@ was inadequate to meet his burden of proof. Slip Op. at 25. This Court overlooked the fact that the State=s factual misrepresentations in the direct appeal answer brief was detailed in over four pages of the habeas petition. In the Petition, Mr. Wright carefully detailed the false arguments made by the State and demonstrated how the record established that the statements were false. This Court overlooked the fact that Mr. Wright fully pled and proved this claim. See Clark v. Crist, C F.3d C (11^th Cir. July 2, 2003).

24. In considering Mr. Wright=s claim that he received ineffective assistance of appellate counsel, this Court did a piecemeal analysis that fails to comport with the due process requirement that cumulative consideration be afforded. The constitutional guarantee of effective assistance of appellate counsel exists to insure that an adequate testing occurs in order to produce a just result. The refusal to consider aspects of the ineffectiveness claim that were previously considered without reference to the full context of counsel=s deficiencies does not comport with due process. This Court=s analysis overlooked this principle detailed in Kyles v. Whitley.

25. In denying the ineffective assistance of appellate counsel claim, this Court mischaracterized Mr. Wright=s argument. For example, at one point this Court=s said that the objection to the hair expert=s testimony Awas not on the ground that the testimony was self-vouching, as Wright argues here.@ Slip Op. at 29. However, Mr. Wright in his petition asserted the testimony in question was irrelevant and noted that trial counsel had objected to the testimony as irrelevant. Petition at 43-44. This Court=s opinion misrepresents Mr. Wright=s claims and then denies those claims on the basis of the misrepresentation. This technique violates due process. See Parker v. Dugger, 498 U.S. 308, 321 (1991)(Athere is a sense in which the court did not review Parker=s sentence at all@).

27. In Ring, the Supreme Court held that the Sixth Amendment to the United States Constitution requires that when aggravating factors are statutorily necessary for imposition of the death penalty, they must be found beyond a reasonable doubt by a jury:

[W]e overrule Walton [v. Arizona, 497 U.S. 639 (1990),] to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. . . . Because Arizona=s enumerated aggravating factors operate as >the functional equivalent of an element of a greater offense,= . . . the Sixth Amendment requires that they be found by a jury.

Ring, 536 U.S. at 609 (citations omitted). This was in conformity with its earlier ruling in Apprendi v. New Jersey, where the Supreme Court held, AIf a State makes an increase in a defendant=s authorized punishment contingent on the finding of a fact, that fact--no matter how the State labels it--must be found by a jury beyond a reasonable doubt.@ 530 U.S. at 482-83. Ring applied Apprendi to the category of capital murder cases and concluded any fact rendering a person eligible for a death sentence is an element of the offense. 536 U.S. at 604, quoting Apprendi, 530 U.S. at 494 (AIn effect, >the required finding [of an aggravating circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury=s guilty verdict=@). The Supreme Court has even more recently elaborated upon the meaning of Ring. In Sattazahn v. Pennsylvania, 123 S.Ct. 732, 739 (2003), the Supreme Court explained:

Put simply, if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that factBno matter how the State labels itB constitutes an element, and must be found by a jury beyond a reasonable doubt.

28. In Ring, the Supreme Court noted that Arizona was one of five states that committed sentencing factfinding and the ultimate sentencing decision to judges. Ring, 536 U.S. at 609 n. 6 (the other four were identified as Colorado, Idaho, Montana, and Nebraska). The Supreme Court further noted that four additional states had hybrid capital sentencing schemes. Id. (Alabama, Delaware, Florida, and Indiana). Subsequently, it has been recognized that additional hybrid states were overlooked by the United States Supreme Court. Johnson v. State, 59 P.3d 450, 460 (Nev. 2002)(under Nevada law, the judge determines the sentence in a capital case if the jury is unable to return a unanimous verdict imposing either a death or a life sentence); State v. Whitfield, 2003 WL 21386276 (Mo. June 17, 2003)(under Missouri law, the judge determines the sentence in a capital case if the jury is unable to return a unanimous verdict imposing either a death or a life sentence). Even in a state with jury sentencing in capital cases, error has been found. In Esparza v. Mitchell, 310 F.3d 414 (6^th Cir. 2002), the Sixth Circuit granted federal habeas relief because the jury was not required to return a verdict identifying the aggravating factors that were present and that rendered the defendant death eligible under state law. 29. In denying Mr. Wright=s petition, this Court failed to look at the jurisprudence that has developed in the wake of Ring. Not surprisingly, the states labeled by the United States Supreme as being in the same category as Arizona have generally recognized that Sixth Amendment error pervades their capital sentencing schemes. State v. Fetterly, 52 P.3d 875 (Idaho 2002)(in light of Ring, death sentence vacated and remanded for further proceedings); State v. Gales, 658 N.W.2d 604, 624 (Neb. 2003)(AIt is clear that the jury made no explicit determination that any of the statutory aggravating circumstance existed in this case. Instead, that determination was made by a judge.@); Woldt v. People, 64 P.3d 256 (Colo. 2003)(death sentences vacated in consolidated direct appeal for two of the three individuals sentenced to death under 1995 scheme providing for three-judge panel to conduct capital sentencing factfinding and cases remanded for the imposition of life sentences); State v. Ring, 65 P.3d 915 (Ariz. 2003)(in a consolidated case involving those on Arizona=s death row, Arizona Supreme Court established parameters for evaluating each case for harmless error analysis). Each of these states has found that the necessary facts under Ring to render the defendant death eligible were not made by the jury at the guilt phase of the capital case.

30. In denying Mr. Wright=s petition this Court also overlooked the decisions from those states lumped in the same category as Florida, hybrid states. For example in Indiana, the hybrid sentencing scheme is employed not just in determining whether to impose death, but also in determining what sentence to impose in murder cases not reaching the capital level. In Bostnick v. State, 773 N.E.2d 266 (Ind. 2002), the Indiana Supreme Court was faced with a case in which the judge overrode a jury=s recommendation against a sentence of life without parole. The Bostnick court concluded, A[t]he jury during the sentencing phase was unable to reach a unanimous recommendation, and thus there was no jury determination finding the qualifying aggravating circumstances beyond a reasonable doubt.@ Id. at 273. Under the Indiana sentencing scheme, the judge made the finding of the aggravating circumstances necessary to warrant the imposition of life without parole. ABecause of the absence of a jury determination that qualifying aggravating circumstances were proven beyond a reasonable doubt, we must therefore vacate the trial court=s sentence of life without parole.@ Id. See Esparza v. Mitchell, 310 F.3d at 420 (Athe jury never found the statutorily required aggravating circumstance@).

31. Another case further illuminates Indiana law and its interplay with Ring. In Overstreet v. State, 783 N.E.2d 1140, 1160-61 (Ind. 2003)(emphasis added), while addressing a capital case, the Indiana Supreme Court explained, A[u]nder the terms of our death penalty statute, before a jury can recommend a sentence of death, it must unanimously find that one or more of the charged aggravating circumstances was proven beyond a reasonable doubt.@ In Overstreet, the defense had requested to have a special finding to this effect made by the jury. The Indiana Supreme Court noted that on the basis of Hildwin v. Florida, 490 U.S. 638 (1989), the trial court had denied the requested special verdict. No reversible error was found because the jury had been explicitly instructed that this unanimous finding beyond a reasonable doubt was necessary before it could return a death recommendation.

32. In another hybrid state, the Delaware legislature enacted legislation following the decision in Ring. In pending capital prosecutions, four questions were certified to the Delaware Supreme Court in light of the new legislation passed in an effort to conform with Ring. The Delaware Supreme Court thereupon undertook a review of Delaware=s capital sentencing scheme. Brice v. State, 815 A.2d 314, 322 (Del. 2003). The new statutory language provided that a death sentence could not be imposed unless Aa jury (unless waived by the parties) first determines unanimously and beyond a reasonable doubt that at least one statutory aggravating circumstances exists.@ Further under Delaware law, first degree murder was defined by the statute in seven alternative ways. Delaware Code, Title 11, '636(a)(1-7). According to Delaware law, A[i]n any case where the defendant has been convicted of murder in the first degree in violation of any provision of '636(a)(2)-(7) of this title, that conviction shall establish the existence of a statutory aggravating circumstance and the jury, or judge where appropriate, shall be so instructed.@ Delaware Code, Title 11, '4209(e)(2). Thus, the Delaware legislature had defined first degree murder on the basis of the presence of six alternative aggravating circumstances and determined that a finding by the jury of the presence of one these circumstances constituted capital first degree murder subject to the death penalty. Accordingly, the Delaware Supreme Court found that the provisions complied with Ring. Brice, 815 A.2d at 322-23.

34. The Alabama Supreme Court has also analyzed its capital sentencing provisions in light of Ring. The Alabama Supreme Court has explained that under Alabama=s statutory definition of capital first degree murder, the jury must find an aggravating circumstance at the guilt phase of a capital trial to render a defendant death-eligible. Ex parte Waldrop, B So.2d B, 2002 Ala. LEXIS 336, *13 (Ala. November 22, 2002)(A>Unless at least one aggravating circumstance as defined in Section 13A- 5-49 exists, the sentence shall be life imprisonment without parole.=@); Martin v. State, B So.2d B , 2003 Ala. Crim. App. LEXIS 136, *55 (Ala. App. May 30, 2003)(Athe jury in the guilt phase entered a verdict finding Martin guilty of capital murder because it was committed for pecuniary gain. Murder committed for pecuniary gain is also an aggravating circumstance@). Thus, like Delaware, Alabama provides that unless there is a finding of an aggravating circumstance at the guilt phase proceeding, the sentence is life imprisonment. This clearly distinguishes Alabama law from Florida law in a critical fashion.

35. In denying Mr. Wright=s habeas petition, this Court also overlooked the decisions from two states not mentioned in Ring that have found reversible Ring error. Recently, the Nevada Supreme Court found that its capital scheme was a Ahybrid@ scheme because if the jury failed to return a unanimous verdict, the judge made the sentencing findings. Johnson v. State, 59 P.3d 450, 460 (Nev. 2002). Nevada law Arequires two distinct findings to render a defendant death-eligible.@ There must be at least one aggravating circumstance and no mitigation sufficient to outweigh the aggravating circumstances. Because in Johnson, the jury had been unable to return a unanimous verdict, the Nevada Supreme Court concluded that the error was not harmless, and it vacated the death sentence.

36. The Missouri Supreme Court also found that its death sentencing scheme was a Ahybrid@ scheme because the judge imposed the sentence whenever the jury could not return a unanimous verdict. That Court explained that in those circumstances Ring was violated because the first three steps of the Missouri procedure for determining death-eligibility had not been decided beyond a reasonable doubt by a jury:

37. The three steps in Florida=s statute, like the steps in Missouri, also Arequire factual findings that are prerequisites to the trier of fact=s determination that a defendant is death-eligible.@ Step 1 in the Florida procedure requires determining whether at least one aggravating circumstance exists. As in Missouri, Colorado, Indiana, Delaware, Arizona, and Nevada, this step involves a factual determination which is a prerequisite to rendering the defendant death-eligible.

whether Asufficient@ aggravating circumstances exist to justify imposition of death. Missouri=s Step 2 is indistinguishable, requiring a determination of whether the evidence of all aggravating circumstances Awarrants imposing the death sentence.@ This step is obviously not the ultimate step of determining whether death will or not be imposed because other steps remain. Rather, in Florida as well as Missouri, this step involves a factual determination which is a prerequisite to rendering a defendant death-eligible.

39. Step 3 in the Florida procedure requires determining whether Athere are insufficient mitigating circumstances to outweigh the aggravating circumstances.@ Missouri=s and Colorado=s Step 3, as well as Nevada=s and Arizona=s Step 2, are identical, requiring a determination of whether mitigating circumstances outweigh aggravating circumstances. Again, this step is not the ultimate determination of whether or not to impose death because an additional step remains. Rather, in Florida as well as these other states, this step involves a factual determination which is a prerequisite to rendering a defendant death-eligible.

40. In Florida, as in Missouri and the other states discussed in Whitfield, the sentencer does not consider the ultimate question of whether or not to impose death until the eligibility steps are completed. After the first three steps, the Florida statute directs the jury to determine, A[b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death.@ Section 921.141(2)(c), Fla. Stat. The structure of the statute clearly establishes that the steps which occur before this determination are necessary to make the defendant eligible for this ultimate determination, that is, to render the defendant death-eligible.

41. The question which Ring v. Arizona decided was what facts constitute Aelements@ in capital sentencing proceedings. Following the Supreme Court=s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), Mr. Ring raised an Apprendi challenge to his death sentence. In addressing that challenge, the Arizona Supreme Court stated that the United States Supreme Court=s description of Arizona=s capital sentencing scheme contained in Walton v. Arizona, 497 U.S. 639 (1990), was incorrect and provided the correct construction of the scheme. Ring, 122 S. Ct. at 2436. Based upon this correct construction, the United States Supreme Court then determined that Walton Acannot survive the reasoning of Apprendi.@ Ring, 122 S. Ct. at 2440.

42. The bulk of the Ring opinion addresses how to determine whether a fact is an Aelement@ of a crime. See Ring, 122 S. Ct. at 2437-43. The question in Ring was not whether the Sixth Amendment requires a jury to decide elements. That has been a given since the Bill of Rights was adopted. The question was what facts are elements. Justice Thomas explained this in his concurring opinion in Apprendi:

This case turns on the seemingly simple question of what constitutes a Acrime.@ Under the Federal Constitution, Athe accused@ has the right (1) Ato be informed of the nature and cause of the accusation@ (that is, the basis on which he is accused of a crime), (2) to be Aheld to answer for a capital, or otherwise infamous crime@ only on an indictment or presentment of a grand jury, and (3) to be tried by Aan impartial jury of the State and district wherein the crime shall have been committed.@ Amdts. 5 and 6. See also Art. III, [Sec.] 2, cl. 3 (AThe Trial of all Crimes . . . shall be by Jury@). With the exception of the Grand Jury Clause, see Hurtado v. California, 110 U.S. 516, 538 . . . (1884), the Court has held that these protections apply in state prosecutions. Herring v. New York, 422 U.S. 853, 857, and n.7 . . . (1975). Further, the Court has held that due process requires that the jury find beyond a reasonable doubt every fact necessary to constitute the crime. In re Winship, 397 U.S. 358, 364 . . . (1970).

All of these constitutional protections turn on determining which facts constitute the Acrime@--that is, which facts are the Aelements@ or Aingredients@ of a crime. In order for an accusation of a crime (whether by indictment or some other form) to be proper under the common law, and thus proper under the codification of the common-law rights in the Fifth and Sixth Amendments, it must allege all elements of that crime; likewise, in order for a jury trial of a crime to be proper, all elements of the crime must be proved to the jury (and, under Winship, proved beyond a reasonable doubt).

Apprendi, 120 S. Ct. at 2367-68 (Thomas, J., concurring) (emphasis added). Justice Thomas explained that courts have Along had to consider which facts are elements,@ but that once that question is answered, Ait is then a simple matter to apply that answer to whatever constitutional right may be at issue in a case--here, Winship and the right to trial by jury.@ Id. at 2368.

44. Ring=s requirement that juries, not judges, find the elements of the charge is derived from ancient principles of law: AThe principle that the jury were the judges of fact and the judges the deciders of law was stated as an established principle as early as 1628 by Coke. See 1 E. Coke, Institutes of the Laws of England 155b (1628).@ Jones, 526 U.S. at 247. Walton did not contravene those principles but simply misread the Arizona statute. The Ring decision merely rejuvenated the longstanding rule which Walton temporarily rejected.

45. The Framers of the Bill of Rights included the Sixth Amendment=s guarantee of a right to jury trial as an essential protection against government oppression. AFear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.@ Duncan v. Louisiana, 391 U.S. 145, 156 (1968). Only by maintaining the integrity of the factfinding function does the jury Astand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction.@ United States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977). Thus, the adoption of the jury trial right in the Bill of Rights establishes the Founders= recognition that a jury trial is more reliable than a bench trial.

46. Just as Justice Thomas explained in Apprendi, there was no question in Ring that the jury trial right applies to elements. The dispute in Ring involved what was an element. Thus, the question in Ring is akin to a statutory construction issue, and Aretroactivity is not at issue.@ Fiore v. White, 531 U.S. 225, 226 (2001); Bunkley v. Florida, 123 S. Ct. 2020, 2023 (2003). That is, the Sixth Amendment right to have a jury decide elements is a bedrock, indisputable right. Mr. Wright was entitled to this Sixth Amendment protection at the time of his trial. The Sixth Amendment guarantees not only the right to a jury trial, but also the right of confrontation. Ring simply clarified that facts rendering a defendant eligible for a death sentence are elements of capital murder and therefore subject to the Sixth Amendment guarantees that are applicable to the states. 47. The ruling in Ring concerns an issue of substantive criminal law. In concluding that the Sixth Amendment requires that the jury, rather than the judge, determine the existence of aggravating factors, the Supreme Court described aggravating factors as Athe functional equivalent of an element of a greater offense.@ Ring, 122 S.Ct. at 2243 (citing Apprendi v. New Jersey, 530 U.S. 466, 494, n. 19 (2000)). Ring clarified the elements of the Agreater@ offense of capital murder. As explained above, Ring did not decide a procedural question (i.e., whether the Sixth Amendment requires that juries decide elements), but a substantive question (what is an element). Thus, retroactive application is required under Bousley v. United States, 523 U.S. 614 (1998), because the ruling addresses a matter of substantive criminal law, not a procedural rule. This Court overlooked this when denying Mr. Wright=s petition.

48. In rejecting Mr. Wright=s argument that this Court erroneously found the consideration of an improper aggravating circumstance to be harmless, this Court overlooked the decision in Esparza v. Mitchell, 310 F.3d at 422-23 (AThe State=s argument that the error here can be excused as harmless would lead to the conclusion that any, or all, elements required by a capital sentencing system may be supplied by judges rather than the jury@).

49. This Court overlooked the post-Ring jurisprudence from other state and federal courts. These decisions demonstrate that this Court has erroneously denied Mr. Wright=s arguments that he was deprived of his Sixth Amendment rights at his resentencing and that his death sentence was unconstitutionally imposed.

I HEREBY CERTIFY that a true copy of the foregoing Motion for Rehearing has been furnished by United States Mail, first class postage prepaid, to Douglas Squire, Assistant Attorney General, 444 Seabreeze Blvd., Suite 500, Daytona Beach, FL 32118, on July 25, 2003.