Patrick Albert Evans, Petitioner v. State of Florida, Respondent; Juan Rosario, Petitioner, v. S — Labarga, J…

Summary

The concurring opinion agrees with the majority that the capital sentencing Act may be applied to pending prosecutions, but it reaches that result through severability analysis. It concludes that the unconstitutional jury-vote provision can be removed while leaving a complete capital sentencing law, so courts may use instructions and a recommendation form requiring unanimity. Justice Pariente, concurring in part and dissenting in part, would permit only the guilt phase to proceed because she believes allowing the penalty phase requires impermissible judicial rewriting; Justice Polston, concurring, agrees with the result while maintaining that the Act was not unconstitutional.