Johnson v. State (904 So. 2d 400, 2005)

PER CURIAM.

Terrell M. Johnson, a prisoner under sentence of death, appeals an order of the circuit court denying his second successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. For the reasons that follow, we affirm. We hold that (I) the trial court did not abuse its discretion in summarily denying the defendant’s public records claim or in concluding that all but one of the public records the State did not disclose to the defendant are either exempt from disclosure or not relevant; (II) the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), does not apply retroactively in Florida; and (III) execution by lethal injection is constitutional.

PROCEDURAL BACKGROUND

In December 1979, Johnson shot and killed two people — a bartender and a customer — at an Orange County tavern. He was convicted of first-degree murder of the bartender and second-degree murder of the customer. On the first-degree conviction, the jury recommended, and the trial court imposed, a sentence of death. Johnson appealed the conviction and sentence to this Court, but the trial transcript was so incomprehensible that we relinquished jurisdiction for reconstruction of the record and an evidentiary hearing to determine its accuracy. After receiving a supplemental transcript, we affirmed the conviction and sentence. See Johnson v. State, 442 So.2d 193 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984).

Johnson filed his first motion for post-conviction relief in 1985. The circuit court held an evidentiary hearing and eventually denied the motion. We affirmed. Johnson v. State, 593 So.2d 206 (Fla.), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992). In 1995, Johnson filed a petition for a writ of habeas corpus in this Court. We found every issue either procedurally barred or lacking merit. See Johnson v. Singletary, 695 So.2d 263 (Fla. 1996). In 1997, Johnson filed a second motion for postconviction relief. The circuit court denied all relief without an evi-dentiary hearing. Again, we affirmed. Johnson v. State, 804 So.2d 1218 (Fla. 2001).

In 2002, Johnson filed a third postcon-viction motion. The motion, as consolidated and amended, raised four claims. After inspecting sealed documents in response to Claim I, the circuit court summarily denied relief. Johnson then moved for rehearing, which the court granted in part. The court again inspected the sealed documents and, “in an abundance of caution,” released one document that referred to “a fugitive with a criminal history who uses as an alias the name of one of the jurors in [Johnson’s] trial.” The court maintained its denial of relief without an evidentiary hearing. Johnson now appeals the summary denial of his third postconviction motion to this Court. We address each claim in turn.

I. PUBLIC RECORDS CLAIM

Johnson first alleges that his due process and equal protection rights were violated because the Florida Department of Law Enforcement (FDLE) and the Ninth Circuit State Attorney’s Office withheld public records relevant to his case. He presented this claim as one of “newly discovered evidence.” The documents at issue were filed with the state records repository in March and April 2001. Some were sealed; others were not. The unsealed documents mention six people who have the same names as jurors in Johnson’s case: Linda Stewart, William Young, Peggy Smith, Gregory Simmons, Fred Cooper, and Betty Phillips. These names appear in various criminal investigation and intelligence documents. As to the sealed records, FDLE asserted several statutory exemptions from' disclosure of public records concerning criminal investigations and confidential informants.

Johnson obtained copies of the unsealed records shortly after becoming aware of them. At the time, Johnson’s appeal of his first successive postconviction motion was pending in this Court, and oral argument already had been held. Johnson filed a motion to relinquish jurisdiction for consideration of the new documents. We denied the motion without prejudice to file a motion in the circuit court. Johnson subsequently filed the motion at issue in this case, requesting an evidentiary hearing on his public records claim. He also asked the circuit court to inspect the documents in camera pursuant to Florida Rule of Criminal Procedure 3.852(f).

After inspecting the sealed documents in camera, the circuit court summarily denied relief. The court concluded that “Defendant’s claims are merely conclusory” and that “all documents not yet disclosed, to Defendant are either exempt from disclosure or not relevant.” Johnson moved for a rehearing, which the court granted in part. After again inspecting the sealed documents in camera, the court stated in a March 2003 order:

The Court finds that a valid exemption exists for each of the allegedly exempt documents. Moreover, for all but one document, the contents are clearly irrelevant to any possible Rule 3.851 proceeding. The sole exception is ... an FDLE investigative report. The report refers to a fugitive with a criminal history who, uses as an alias the name of one of the jurors in Defendants trial. While the Court notes that any connection between the fugitive and the actual juror is purely speculative, that investigative report is the only exempt document which the Court cannot definitively find .to be irrelevant. Therefore, in an abundance of caution, the Court shall release copies of that single document to the parties.

The court maintained its denial of relief and .refused to grant an evidentiary hearing.

Johnson now argues the court should have granted an evidentiary hearing. A defendant is entitled to an evidentiary hearing on his postconviction motion unless (1) the motion, files and records in the case 'conclusively show that the defendant is not entitled to any relief, or (2) the motion or a particular claim is legally insufficient. See Maharaj v. State, 684 So.2d 726, 728 (Fla.1996); Holland v. State, 503 So.2d 1250, 1251 (Fla.1987). In determining whether an evidentiary hearing is warranted, we must accept the defendant’s factual allegations to the extent they are not refuted by the record. See Peede v. State, 748 So.2d 253, 257 (Fla. 1999). However, we have “rejected the argument that an evidentiary hearing is required to resolve every postconviction motion that alleges a public records violation. The defendant must support his motion ... with specific factual allegations.” Thompson v. State, 759 So.2d 650, 659 (Fla.2000) (citation omitted) (citing Downs v. State, 740 So.2d 506, 510-11 (Fla.1999)). Conclusory allegations do not justify an evidentiary hearing. See Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).

We agree with the trial court that Johnson’s public records claim is legally insufficient as a “newly discovered evidence” claim. We repeatedly have held that “[i]n order to obtain relief on a claim of newly discovered evidence, a claimant must show, first, that the newly discovered evidence was unknown to the defendant or defendant’s counsel at the time of trial and could not have been discovered through due diligence and, second, that the evidence is of such a character that it would probably produce an acquittal on retrial.” Mills v. State, 786 So.2d 547, 549 (Fla. 2001) (citing Jones v. State, 709 So.2d 512 (Fla.1998)). Johnson has not explained how the unsealed records FDLE and the State Attorney’s Office released “would probably produce an acquittal on retrial.” In fact, we are confident they would not. The unsealed records date back only to 1988, whereas voir dire in Johnson’s case was conducted in 1980. Thus, even if the records concern criminal activity by the jurors in Johnson’s case — which at this point is sheer speculation — they still would be irrelevant.

Apparently recognizing that the unsealed documents do not contain any information likely to lead to a retrial, much less an acquittal, Johnson alleges that FDLE may be withholding additional relevant documents. Despite the State’s representation to the circuit court that “we have a one-time occurrence here,” Johnson claims that the tardy production of public records in early 2001 “calls into question the record keeping practices of the FDLE in regards to Mr. Johnson’s case” and may indicate that more unproduced documents exist. Far from being a “specific factual allegation[ ]” as required by Thompson, 759 So.2d at 659, this allegation amounts to a “fishing expedition for records.” Moore v. State, 820 So.2d 199, 204 (Fla.2002) (rejecting a public records claim because “importantly, [the defendant] has made no showing that there is any additional information that has not been disclosed”).

We consistently have upheld the summary denial of public records claims based on a defendant’s mere speculation about the existence of unproduced records. For example, in Downs v. State, 740 So.2d at 510, the defendant alleged that a law enforcement agency had withheld notes from witness interviews, whereas the State and the sheriffs office claimed that all relevant records had been disclosed. Id. Because the defendant “did not proffer or assert the existence of any evidence that such notes existed and were improperly being withheld,” we affirmed the denial of relief. Id. at 511; cf. Mendyk v. State, 707 So.2d 320, 322 (Fla.1997) (“In the absence of a showing that ... notes or recording may have been made [by a sheriffs department], the trial judge did not abuse his discretion in denying Mendyk’s motion. ...”); Mills v. State, 684 So.2d 801, 806 (Fla.1996) (“We find no abuse of discretion in the trial court’s failure to order the production of records [from a sheriffs department] when there is no demonstration that the records exist.”). Like the defendant in Downs, Johnson has failed to allege the existence of specific additional, undisclosed public records. The mere fact that FDLE belatedly released some records in this case does not justify an eviden-tiary hearing regarding additional records in the absence of specific allegations that such records exist.

The trial court also followed the appropriate procedure in evaluating the sealed records. In Ragsdale v. State, 720 So.2d 203 (Fla.1998), we held that where doubt exists as to whether the State must disclose allegedly exempt documents, the trial court should first review the documents in camera. Id. at 206; see also State v. Kokal, 562 So.2d 324, 327 (Fla.1990). If the trial court decides that a document is not exempt, the State must release it to the defense. Ragsdale, 720 So.2d at 206. The trial court’s decision is subject to an abuse of discretion standard. See Mills, 786 So.2d at 552. Discretion is abused only when the trial court’s decision is “arbitrary, fanciful, or unreasonable.” White v. State, 817 So.2d 799, 806 (Fla.2002) (citing Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000)).

The record does not indicate that the trial court acted arbitrarily, fancifully, or unreasonably in withholding all but one of the sealed documents after reviewing them twice. To , the contrary, in an abundance of caution it released the only document even potentially relevant. Although some of the sealed documents do mention individuals with the same names as some of the jurors in Johnson’s case, none of them dates back to 1980 or appears in, any way helpful to Johnson. The sealed documents, like the unsealed ones, have absolutely no bearing on Johnson’s case. We therefore conclude that the trial court did not abuse its discretion in refusing to grant an evidentiary hearing on Johnson’s public records claim or in withholding all but one of the sealed documents after twice reviewing them in camera.

II. RETROACTIVITY OF RING

For a defendant to be sentenced to death in Florida, the judge must find sufficient aggravating circumstances to warrant the death penalty. See § 775.082, Fla. Stat. (2004); § 921.141, Fla. Stat. (2004). Johnson, whose jury recommended death by a vote of seven to five, received a death sentence after his trial judge found four aggravating factors. Johnson now argues that his death sentence is unconstitutional in light of the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which held that a jury,-not a judge, must find every fact upon which eligibility for the- death penalty depends. We conclude, however, that Johnson may not invoke Ring. Applying the retroactivity analysis we announced in Witt v. State, 387 So.2d 922, 925 (Fla.1980), we hold that Ring does not apply retroactively in Florida to defem dants whose convictions already were final when that decision was rendered.

A. Ring and Our Response

We begin by summarizing Ring and our response to it. In June 2002, the United States Supreme Court held in Ring that a jury, hot a judge, must find beyond a reasonable doubt every fact necessary to expose a defendant to a sentence of death. 536 U.S. at 589, 122 S.Ct. 2428. Ring was not a sudden or unforeseeable development in constitutional law; rather, it was “an evolutionary refinement in capital jurisprudence.” Monlyn v. State, 8.94 So.2d 832, 841 (Fla.2004) (Pariente, C.J., specially concurring). The Supreme Court merely applied the reasoning of another case, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to death penalty cases. In Apprendi the Court had announced that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Although Apprendi had excluded death penalty cases from its holding, id. at 497, 120 S.Ct. 2348, the Court concluded two years later in Ring that “[cjapital defendants, no less than noncapital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” 536 U.S. at 589, 122 S.Ct. 2428.

Ring not only invalidated the judicial finding of aggravating factors in Arizona, id. at 609, 122 S.Ct. 2428, but also cast doubt upon the constitutionality of the death penalty laws of many other states, including Florida, where judges are partially or entirely responsible for deciding whether to sentence defendants to death. See id. at 608, 122 S.Ct. 2428 (stating that Florida has a “hybrid system” of capital sentencing, involving both judge and jury). Those states must now determine whether Ring requires minor or even major adjustments to their capital sentencing schemes.

We first analyzed Ring’s effect on Florida law in two plurality opinions, Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). Both opinions noted that the United States Supreme Court repeatedly has upheld Florida’s capital sentencing scheme. Bottoson, 833 So.2d at 695; King, 831 So.2d at 143. They also cited that Court’s admonition that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [other court] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), quoted in Bottoson, 833 So.2d at 695, and King, 831 So.2d at 143. Neither Bottoson nor King, however, garnered a majority. In fact, Chief Justice Pariente later recognized that “we have not yet as a Court determined whether Ring has any applicability to Florida’s death penalty scheme or if so, whether any aspect of that holding would be retroactive to cases already final.” See Allen v. State, 854 So.2d 1255, 1263 (Fla.2003) (Pariente, J., specially concurring).

As a result of this lack of consensus, virtually every postconviction appeal filed in this Court since Ring invokes that case. We repeatedly have denied such requests for clear lack of merit, while reserving judgment on whether Ring even affects Florida law or applies retroactively to postconviction cases. Usually the Ring claims have failed because the sentence was supported by an aggravating factor found by a jury beyond a reasonable doubt, such as a prior violent felony conviction or a contemporaneous enumerated felony conviction. See, e.g., Kimbrough v. State, 886 So.2d 965 (Fla.2004); Pietri v. State, 885 So.2d 245 (Fla.2004); Sochor v. State, 883 So.2d 766 (Fla.2004). We could easily dispose of Johnson’s Ring claim in the same way because his death sentence was supported by an aggravating factor found by a jury beyond a reasonable doubt — namely, his prior convictions of two violent felonies. Johnson, 442 So.2d at 197.

We choose to use this opportunity, however, to answer one of the ■ underlying questions on which we have previously reserved judgment: whether Ring applies retroactively in Florida to defendants, such as Johnson, whose convictions already were final at the time of that decision. Only in concurring opinions has this issue been discussed at length. See, e.g., Windom v. State, 886 So.2d 915, 985 (Fla.2004) (Cantero, J., specially concurring) (concluding that Ring should not apply retroactively in Florida); Bottoson v. Moore, 833 So.2d 693, 717 (Fla.2002) (Shaw, J., concurring in result only) (concluding that Ring should apply retroactively in Florida). Yet in our recent decision in Monlyn, a majority consensus began to emerge. Two concurring opinions, joined by a total of five justices, expressed the view that Ring is not retroactive in Florida. Chief Justice Pariente, joined by Justice Quince, concluded that Ring “does not apply retroactively to cases on postconviction review under the test of Witt.” Monlyn, 894 So.2d at 841. Justice Cantero, joined by Justices Wells and Bell, agreed that under the Witt test Ring does not apply retroactively, but urged that, in determining the retroactivity of cases emanating from the United States Supreme Court, this Court abandon Witt in favor of the more recent test announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Id. at 840. Using the analysis articulated in Witt, we now hold that Ring does not apply retroactively in Florida.

B. Overview of Retroactivity Analysis

It is clear that new law announced by this Court or the United States Supreme Court applies to all non-final criminal cases — that is, to all cases involving convictions for which an appellate court mandate has not yet issued. See Smith v. State, 598 So.2d 1063, 1066 (Fla.1992) (holding that “any decision of this Court announcing a new rule of law ... must be given retrospective application by the courts of this state in every case pending on direct review or not yet final”), limited by Wuornos v. State, 644 So.2d 1000, 1008 n. 4 (Fla.1994) (reading Smith “to mean that new points of law established by this Court shall be deemed retrospective with respect to all non-final cases unless this Court says otherwise”).

Whether newly announced rules of law apply to cases that already were final at the time of the announcement is a different question. We have recognized that once a conviction has been upheld on appeal, the State acquires a strong interest in finality:

The importance of finality in any justice system, including the criminal jus- . tice system, cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end. In terms of the availability of judicial resources, cases must eventually become final simply to allow effective appellate review of other cases. There is no evidence that subsequent collateral review is generally better than contemporaneous appellate review for ensuring that a conviction or sentence is just. Moreover, an absence of finality casts a cloud of tentativeness over the criminal justice system, benefiting neither the person convicted nor society as a whole.

Witt, 387 So.2d at 925; see also United States v. Addonizio, 442 U.S. 178, 184 n. 11, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (noting that “[ijnroads on the concept of finality tend to undermine confidence in the integrity of our procedures”). To override the State’s interest in finality every time a new rule is decided “would ... destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state ... beyond any tolerable limit.” Witt, 387 So.2d at 929-30. Thus, when deciding whether a decision containing new law applies retroactively, “the fundamental consideration is the balancing of the need for decisional finality against the concern for fairness and uniformity in individual cases.” State v. Callaway, 658 So.2d 983, 986 (Fla.1995).

The United States Supreme Court first established standards for retroactivity in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Linkletter considered the retroactivity of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which applied the Fourth Amendment’s exclusionary rule to the states. In determining whether Mapp applied retroactively, the Court adopted a three-part test that considered (a) the purpose to be served by the new rule, (b) the extent of reliance on the prior rule, and (c) the effect that retroactive application of the new rule would have on the administration of justice. Id. at 636-40, 85 S.Ct. 1731. Under that test, the Court decided that Mapp would apply only to subsequent trials. Id. Two years later, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court again applied the three Linkletter factors, cementing their status as the controlling federal test.

We incorporated Linkletter into our own retroactivity analysis in Witt v. State, 387 So.2d at 925. Witt held that a change in the law does not apply retroactively in Florida “unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.” Id. at 931. We explained that a “development of fundamental significance” is one that “placets] beyond the authority of the state the power to regulate certain conduct or impose certain penalties,” or alternatively is “of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall and Linkletter.” Id. at 929. By permitting the retroactive application of new rules only in these limited circumstances, we “declarefd] our adherence to the limited role for postcon-viction relief proceedings, even in death penalty cases.” Id. at 927.

Nine years after we decided Witt, the United States Supreme Court began to turn away from Linkletter. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). While acknowledging that new rules of constitutional law should apply to every case pending on direct appeal, the Teague plurality concluded that they should not apply retroactively to post-conviction cases unless (1) they place conduct beyond the power of the government to proscribe, or (2) they announce a “watershed” rule of criminal procedure that is “implicit in the concept of ordered liberty.” Id. at 311, 109 S.Ct. 1060. Less than a year later, in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the Court adopted Teague’s retro-activity analysis as its majority view.

Applying the test for retroactivity under Teague, the United States Supreme Court recently held in Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), that Ring does not apply retroactively for purposes of federal law. But Summerlin does not control our decision. As courts in other states have noted, state courts are not bound by Teague in determining the retroactivity of decisions. See California v. Ramos, 463 U.S. 992, 1014, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) (acknowledging that “[sjtates are free to provide greater protections in their criminal justice system than the Federal Constitution requires”); Colwell v. State, 118 Nev. 807, 59 P.3d 463, 470 (2002) (noting that “[w]e may choose to provide broader retroactive application of new constitutional rules of criminal procedure than Teague and its progeny require”); Cowell v. Leapley, 458 N.W.2d 514, 517 (S.D.1990) (noting that states may decide how to provide access to state postconviction relief). We continue to apply our longstanding Witt analysis, which provides more expansive retroactivity standards than those adopted in Teague. We nevertheless conclude that, even under Witt, Ring does not apply retroactively.

C. Is Ring Retroactive in Florida?

The holding of Ring clearly satisfies the first two prongs of Witt because the United States Supreme Court issued a new rule that is “constitutional in nature.” 387 So.2d at 930. Ring’s retroactivity therefore depends on the third prong: whether , the new rule constitutes a “development of fundamental significance.” Id. In Witt, we clarified that most developments of fundamental significance fall within two categories: changes “which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties,” and those “which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall and Linkletter.” Id. at 929. Ring does not fall within the first category because it does not prohibit the government from criminalizing certain conduct or imposing certain penalties. Thus, the question is whether Ring is of “sufficient magnitude” to require retroactive application under three factors: (a) the purpose to be served by the rule, (b) the extent of reliance on the prior rule, and (c) the effect that retroactive application of the new rule would have on the administration of justice. Id. at 926. We address each factor in turn.

1. Purpose of the New Rule

The first factor under Witt is the purpose to be served by the new rule. Id. The United States Supreme Court noted in Summerlin that its holding in Ring was not a substantive change to the law, but rather a “prototypical procedural rule[],” in that it regulates the manner in which culpability is determined but does not alter the range of conduct or class of persons that the law punishes. 124 S.Ct. at 2523. The Court also determined that Ring does not change the elements of the offense of murder punishable by death, and does not greatly enhance the fairness or accuracy of death penalty proceedings. See id. at 2524-26. Regarding the latter concern, the Court noted that because the burden of proof in Arizona for aggravating factors found by the trial court was “beyond a reasonable doubt,” the requirement of Apprendi that facts authorizing an increased sentence be found beyond a reasonable doubt was not at issue in Ring. Id. at 2522 n. 1. Florida law also requires that aggravating factors in death penalty cases be established beyond a reasonable doubt. See Rogers v. State, 783 So.2d 980, 992-93 (Fla.2001).

The Supreme Court cautioned in Ring that its determination of who decides whether a defendant is eligible for the death penalty “does not turn on the relative rationality, fairness, or efficiency of potential factfinders.” 536 U.S. at 607, 122 S.Ct. 2428. The Court subsequently stated in Summerlin that “for every argument why juries are more accurate factfinders, there is another why they are less accurate.” 124 S.Ct. at 2525. Applying the Teague test, the Court concluded that “[w]hen so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot confidently say that judicial factfinding seriously diminishes accuracy.” Id.

Deferring to the United States Supreme Court’s assessment of its own decision in Ring, we conclude that the purpose of the new rule does not support retroactivity. The purpose of the new rule in Ring is to conform criminal procedure to the Sixth Amendment’s jury trial guarantee, and not to enhance the fairness or efficiency of death penalty procedures. In Williams v. State, 421 So.2d 512, 515 (Fla.1982), we refused to apply a rule retroactively in part because it “did not involve an attack on the fairness of the trial.” As we recognized in Witt, new rules generally will not warrant retroactive application “in the absence of fundamental and constitutional law changes which cast serious doubt on the veracity or integrity of the original trial proceeding.” 387 So.2d at 929. Ring casts no such doubt. The first Witt factor therefore disfavors retroactive application.

2. Reliance on the Old Rule

The second Witt factor is the extent of reliance on the old rule. Id. at 926. Like the first factor, this one weighs heavily against retroactive application of Ring. Florida has relied to an immeasurably large extent on its capital sentencing scheme. Since Florida’s reinstatement of the death penalty in 1972, hundreds of defendants have been sentenced to death employing the procedures in section 921.141, Florida Statutes, that call upon the jury only to render an advisory sentence by majority vote. Fifty-nine defendants have been executed. See Fla. Dep’t of Corrections, Death Row Fact Sheet, available at http://www.dc.state. fl.us/oth/deathrow/ index.html. Our situation is very different, for example, from the one the Missouri Supreme Court faced when it applied Ring retroactively. That court concluded that only five collateral cases would potentially be affected. See State v. Whitfield, 107 S.W.3d 253, 269 (Mo.2003). In contrast, about 367 defendants currently reside on Florida’s Death Row.

Florida’s reliance on its capital sentencing scheme has been entirely in good faith. The United States Supreme Court has examined and upheld Florida’s capital sentencing statute for more than a quarter of a century. See Bottoson, 833 So.2d at 695 (citing cases). In Apprendi, decided two years before Ring, the Supreme Court specifically excluded death penalty cases from its holding and confirmed the validity of its prior decision upholding Arizona’s sentencing scheme, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). Based on all of the information available at the time of Ring, Florida had every reason to believe that its capital sentencing scheme was constitutionally sound and worthy of reliance. We still have not held otherwise.

That Florida has reasonably relied on its longstanding capital sentencing scheme is an important factor weighing against the retroactive application of Ring. See Williams, 421 So.2d at 515 (“It was reasonable ... to rely upon [the old] law. That significant reliance has been placed on the old rule is an important factor supporting [exclusively] prospective application of the new rule.”); State v. Towery, 204 Ariz. 386, 64 P.3d 828, 835 (2003) (concluding under the Linkletter test that “the [Arizona] justice system’s good faith reliance on Walton v. Arizona weighs against retroactivity”).

3. Effect on the Administration of Justice

The third and final Witt factor is the effect that retroactive application will have on the administration of justice. 387 So.2d at 926. This factor, too, weighs heavily against retroactive application of Ring. As we mentioned above, about 367 defendants currently reside on Florida’s Death Row. Some have been there for decades. The retroactive application of Ring in Florida would require reconsideration of hundreds of cases to determine whether a new penalty phase is warranted. This reconsideration alone would be a major undertaking. Even though we have rejected numerous Ring claims in postconviction proceedings on grounds other than non-retroactivity, such as existence of a prior violent felony conviction aggravator or a unanimous death recommendation, the United States Supreme Court has not addressed whether these distinctions comport with the Sixth Amendment. One member of this Court, relying on the decision of the Arizona Supreme Court on remand in Ring, has dissented from our conclusion that a single Ring-exempt aggravator permits reliance on other aggravators found solely by the trial judge. See Duest v. State, 855 So.2d 33, 56 (Fla.2003) (Anstead, C.J., concurring in part and dissenting in part), cert. denied, 541 U.S. 993, 124 S.Ct. 2023, 158 L.Ed.2d 500 (2004). Thus, if Ring were made retroactive its impact on Florida’s death-row population would remain unclear.

Resentencing hearings necessitated by retroactive application of Ring would be problematic. For prosecutors and defense attorneys to reassemble witnesses and evidence literally decades after an earlier conviction would be extremely difficult. We fear that any new penalty phase proceedings would actually be less complete and therefore less (not more) accurate than the proceedings they would replace. As we explained in State v. Glenn, 558 So.2d 4 (Fla.1990), where we declined to apply retroactively the double jeopardy ruling of Carawan v. State, 515 So.2d 161 (Fla.1987):

Granting collateral relief ... would have a strong impact upon the administration of justice. Courts would be forced to reexamine previously final and fully adjudicated cases. Moreover, courts would be faced in many eases with the problem of making difficult and time-consuming factual determinations based on stale records. We believe that a court’s time and energy would be better spent in handling its current caseload ....

Glenn, 558 So.2d at 8; see also Reed v. State, 837 So.2d 366, 370 (Fla.2002) (refusing to apply a new rule retroactively to child abuse cases because it “would require courts to revisit numerous final convictions and to extensively review stale records”); Williams, 421 So.2d at 515 (refusing to apply a new rule retroactively because it would entail hearings with “evidence possibly long since destroyed, misplaced, or deteriorated” and witnesses who “may not be available or [whose] memory might be dimmed”); Towery, 64 P.3d at 835 (recognizing that “Conducting new sentencing hearings [for Arizona’s 90 death row prisoners], many requiring witnesses no longer available, would impose a substantial and unjustified burden on Arizona’s administration of justice”).

To apply Ring retroactively in Florida would undermine the perceived and actual finality of criminal judgments and would consume immense judicial resources without any corresponding benefit to the accuracy or reliability of penalty phase proceedings.

4. Conclusion of Retroactivity Analysis

We conclude that the three Witt factors, separately and together, weigh against the retroactive application of Ring in Florida. To apply Ring retroactively “would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state ... beyond any tolerable limit.” Witt, 387 So.2d at 929-30. Our analysis reveals that Ring, although an important development in criminal procedure, is not a “jurisprudential upheaval” of “sufficient magnitude to necessitate retroactive application.” Id. at 929. We therefore hold that Ring does not apply retroactively in Florida and affirm the denial of Johnson’s request for collateral relief under Ring.

III. CONSTITUTIONALITY OF LETHAL INJECTION

Finally, Johnson argues that execution by lethal injection constitutes cruel and unusual punishment in violation of both the Florida and United States Constitutions. This claim is without merit and was properly denied without an evidentiary hearing. See Provenzano v. State, 761 So.2d 1097, 1099 (Fla.2000) (holding that execution by lethal injection is not cruel and unusual punishment); Sims v. State, 754 So.2d 657, 668 (Fla.2000) (same). The claim is also procedurally barred because it was raised and rejected in Johnson’s first successive postconviction proceeding. Johnson, 804 So.2d at 1225.

IY. CONCLUSION

For the reasons stated above, we affirm the trial court’s summary denial of Johnson’s second successive motion for postcon-viction relief.

It is so ordered.

PARIENTE, C.J., and WELLS, QUINCE, CANTERO, and BELL, JJ., concur.

WELLS, J., concurs specially with an opinion, in which CANTERO and BELL, JJ., concur.

CANTERO, J., concurs with an opinion, in which WELLS and BELL, JJ., concur.

LEWIS, J., concurs in result only with an opinion.

ANSTEAD, J., concurs in part and dissents in part with an opinion.

. Claim I was a "newly discovered evidence" claim. Johnson alleged that his due process and equal protection rights were violated because the Florida Department of Law Enforcement (FDLE) and the Ninth Circuit State Attorney's Office withheld access to documents relevant to his case. He requested that the circuit court conduct an in-camera inspection of various sealed documents pursuant to Florida Rule of Criminal Procedure 3.852(f). Claim II alleged cumulative error as a ground for relief. Claim III alleged that Johnson's death sentence was unconstitutional under the holding of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Claim IV alleged that execution by lethal injection constitutes cruel and unusual punishment.

. These were: (1) that Johnson committed the murder in a cold, calculated and premeditated manner; (2) that he committed the murder to avoid lawful arrest; (3) that he committed the murder during a robbery and for pecuniary gain, which the judge merged into one factor; and (4) that he had b.een convicted of prior violent felonies, including attempted robbery and attempted murder. Johnson, 442 So.2d at 197.

. Justice Anstead argues that before analyzing Ring under these three specific factors from Witt, we should first consider "the plain meaning of the words 'fundamental significance.' ” Dissenting op. at 424. However, as we read Witt, the meaning of the phrase "fundamental significance” is not wholly separate from the three specific factors; rather, it is informed by them. As we explained in Witt, those three factors are "the essential considerations in determining whether a new rule of law should be applied retroactively.” 387 So.2d at 926 (emphasis added). They guide us in "defining the line where finality gives way to fairness.” Id. at 925. Specifically, they focus our inquiry on whether Ring is fundamentally significant along the relevant dimensions of "fairness and uniformity.” Id.

. We are not, as Justice Anstead suggests, relying on the federal standard for retroactivity. Dissenting op. at 417-18, 419. We defer not to the federal standard, but rather to the Supreme Court’s characterization of the purpose of Ring. To the extent that the purpose of Ring is a factor in our own retroactivity test, a recent discussion of that purpose by the very Court that decided Ring is obviously worthy of our attention and deference.

. We, too, have applied new rules retroactively where the extent of reliance on the old rule has been minimal. See, e.g., Ferguson v. State, 789 So.2d 306, 311 (Fla.2001) (stating that the old rule "has not been relied on extensively"); State v. Callaway, 658 So.2d 983, 987 (Fla. 1995) (stating that "reliance could have existed for only a short period of time”).

. Justice Anstead responds that "considering the tens of thousands of inmates in our penal system, the few hundred death cases are but a modest few, a tiny percentage.” Dissenting op. at 426. But to equate death penalty cases with cases involving lesser crimes and punishments would be to ignore the obvious: death penalty cases require a much larger investment of societal resources than the average criminal case. We respectfully disagree with Justice Anstead's assertion that the grant of new penalty phases "in a few hundred [death penalty] cases would have a de minimis effect on Florida’s criminal justice system.” Dissenting op. at 426. We think the effect would be quite substantial.

WELLS, J.,

specially concurring.

I concur in the majority decision. I also concur that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), is not to be applied retroactively and with the excellent discussion of retroactivity in the majority opinion. I continue to agree with the views expressed in Justice Cantero’s specially concurring opinion in Window, v. State, 886 So.2d 915, 935-52 (Fla. 2004) (Cantero, J., specially concurring).

I write to make clear that by doing a retroactivity analysis, no implication should be drawn that Ring is otherwise applicable to the Florida capital punishment statute. My view continues to be as stated in my opinions in Bottoson v. Moore, 824 So.2d 115, 122-27 (Fla.2002) (Wells, J., dissenting), and Bottoson v. Moore, 833 So.2d 693, 696-99 (Fla.2002) (Wells, J., concurring specially).

I also do not believe that Johnson states a claim for relief in this successive rule 3.851 motion pursuant to Florida Rule of Criminal Procedure 3.851(d)(2)(B). Ring has not been held to apply retroactively.

CANTERO and BELL, JJ., concur.

. Rule 3.851(d)(2)(B) states:

(2) No motion shall be filed or considered pursuant to this rule if filed beyond the time limitation provided in subdivision (d)(1) unless it alleges that

(b) the fundamental constitutional right asserted was not established within the period provided by subdivision (d)(1) and has been held to apply retroactively....

CANTERO, J.,

concurring.

I concur in the majority opinion. I agree that, under the analysis used in Witt v. State, 387 So.2d 922 (Fla.1980), the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), does not apply retroactively. My views on how we should determine the retroactivity of United States Supreme Court decisions, however, remain the same as they were in Windom v. State, 886 So.2d 915, 935 (Fla.2004) (Cantero, J., specially concurring). I continue to “believe that we should answer questions about the retroactivity of decisions of the United States Supreme Court based on that Court’s own standards, as articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and not based on the now-outmoded test we announced in [Witt].” Id. I recognize that a majority of this Court believes that we should continue to apply Witt. But today’s decision illustrates the prudence of applying Teague.

The test for retroactivity that we adopted in Witt was, at the time, the controlling federal test for retroactivity. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the United States Supreme Court had adopted a three-part test for retroactivity that considered (a) the purpose to be served by the new rule, (b) the extent of reliance on the prior rule, and (c) the effect that retroactive application of the new rule would have on the administration of justice. Id. at 636^40, 85 S.Ct. 1731. We directly incorporated those three factors into our own analysis in Witt. 387 So.2d at 929. We also held that rules would be retroactive if they “place[d] beyond the authority of the state the power to regulate certain conduct or impose certain penalties.” Id.

Less than a decade after we adopted the Linkletter approach, the United States Supreme Court receded from it. In Teague v. Lane, a plurality of the Court recognized that “[t]he Linkletter retroactivity standard has not led to consistent results,” 489 U.S. at 302, 109 S.Ct. 1060, and that “commentators have ‘had a veritable field day’ with the Linkletter standard, with much of the discussion being ‘more than mildly negative.’ ” Id. at 303, 109 S.Ct. 1060. The primary problem with the Link-letter factors was their malleability. They were difficult for courts to apply consistently, and thus produced an “unfortunate disparity in the treatment of similarly situated defendants on collateral review.” Id. at 305, 109 S.Ct. 1060. They also gave insufficient weight to the interest of finality. Id. at 310, 109 S.Ct. 1060.

To resolve these problems, the Teague plurality embraced a more restrictive approach. New rules would not be applied retroactively unless they (1) placed conduct beyond the power of the government to proscribe, or (2) announced a “watershed” rule of criminal procedure that “implicate[s] the fundamental fairness of the trial” and is “implicit in the concept of ordered liberty.” Id. at 311-12, 109 S.Ct. 1060 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments in part and dissenting in part)). For the second prong to be satisfied, the new rule would need to be one “without which the likelihood of an accurate conviction is seriously diminished.” Id. at 313, 109 S.Ct. 1060. Within a year, a majority adopted the Teague plurality’s analysis. See Penny v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

By now, of course, most states have adopted the Teague standard, at least when determining the retroactivity of constitutional decisions of the United States Supreme Court. Windom, 886 So.2d at 943 n. 28 (Cantero, J., specially concurring). We remain one of a minority of states that has not adopted Teague in any manner. Id. Instead, we persist in applying the three Linkletter factors that the United States Supreme Court abandoned more than fifteen years ago.

Our reluctance to follow the Supreme Court’s lead would be easier to understand if our decision in Witt had marked a divergence from federal views on retroactivity. Justice Anstead’s dissent suggests that it did. He writes that “in Florida we long ago decided, for reasons of justice and fairness, to apply a very different standard to determine retroactivity.” Dissenting op. at 418. But the reality is that in Witt we did not consciously decide to forge our own “very different standard” of retroac-tivity. To the contrary, we adopted the then-existing federal standard. We moved Florida into line with, rather than setting it apart from, federal law. Now that the federal law has changed, the spirit of Witt would seem to justify a corresponding change in Florida law.

I explained in my Windom concurrence why it would be prudent to adopt Teague in determining the retroactivity of United States Supreme Court decisions:

We should not apply a different standard for determining the retroactivity of United States Supreme Court decisions than that Court itself applies. Consistency among the states — and between the state and federal courts — in applying decisions of the United States Supreme Court demands that, to the extent possible, standards for retroactivity be uniform. Otherwise, the retroactivity of a decision of the Supreme Court will depend on the jurisdiction in which the defendant was prosecuted. Although such a result is sometimes unavoidable, we should attempt as much as possible to limit such lack of uniformity. Also, even more than Linkletter, the Teague standards respect the finality of decisions, a concept we considered of utmost importance in Witt.

886 So.2d at 944. The same reasoning holds true today. Alignment with Teague would promote uniformity, predictability, and finality of decisions. Thus, I again urge this Court to apply the Teague standard when determining the retroactivity of United States Supreme Court decisions.

Like most retroactivity cases, this case would have been much easier to resolve under Teague than under Witt. As Justice Anstead acknowledges in his partial dissent, “there is no doubt that Ring ... would not be retroactively applied under the federal standard.” Dissenting op. at 418. The United States Supreme Court, employing a Teague analysis, has held that Ring does not apply retroactively. Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). We would have benefited from the Supreme Court’s guidance if we also employed a Teague analysis.

The Teague standards are also easier to apply because they are more demanding and less malleable than the Witt standards. Whereas Witt establishes a nebulous balancing test with three factors that can be difficult to gauge (the purpose of the new rule, the reliance upon the old rule, and the effect of retroactive application on the administration of justice), Teague straightforwardly requires courts to determine whether a new procedural rule is one “without which the likelihood of an accurate conviction is seriously diminished.” Summerlin, 124 S.Ct. at 2523 (quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060). Unless a rule falls within that “extremely narrow” class, id., Teague bars retroactive application. Ring clearly falls short of that exacting standard, for the reasons expressed by the United States Supreme Court in Summerlin.

I hope that in future cases this Court will consider the benefits of applying Teag-ue when determining the retroactivity of United States Supreme Court decisions. Not only is Teague the standard applied by the Supreme Court and most other states; it is also the standard that better promotes the important interests of consistency and finality of decisions. The time is right to move béyond Witt by doing precisely what Witt did: incorporate into Florida law the prevailing federal standard for retroactivity.

WELLS and BELL, JJ., concur.

LEWIS, J.,

concurring in result only.

I concur in result only because I do not agree with a substantial portion of the majority’s discussion. First, Ring facially has no application in this case because prior violent felony convictions preceded the conviction here rendering Ring a non-issue. Second, many of Justice Anstead’s observations with regard to elements of the Witt analysis are cogent comments directed to the unquestionably unique circumstances of death penalty jurisprudence. The majority’s view with regard to finality and the extent of reliance upon an old rule is misdirected and overly critical of Justice Anstead’s legitimate concerns and analysis. Thoughtful consideration of genuine issues should not be relegated to the category of “ignoring the obvious” as the majority responds here. Most assuredly, retroactive ' application of any principle of law is somewhat “problematic” but that criterion alone should not be the criterion and yardstick to measure the result when the ultimate penalty of death is at issue.

I am compelled to agree, however, that even though Ring is not truly an issue here, if this Court proceeds to decide the retroactive issue in this case, the majority result is correct. The United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was confronted with the issue of whether a judge, sitting without a jury, could conduct the fact-finding necessary to enhance a defendant’s sentence by two years under a “hate-crimes” statute. In conducting its analysis, the Supreme Court first acknowledged the importance of the interests that were at stake, see id. at 476, 120 S.Ct. 2348 (“At stake in this case are constitutional protections of surpassing importance.”), and the Court then announced a bright-line rule of law that would protect those interests appropriately: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348.

Two years later, the United States Supreme Court in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), applied Apprendi’s bright-line rule to capital cases, holding as follows: “Because ... 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, 122 S.Ct. 2428 (citation omitted). The Court explained further:

The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the fact-finding necessary to put him to death.

Id. at 609, 122 S.Ct. 2428. Based on language in both Apprendi and Ring, these decisions initially appeared to implicate constitutional interests of the highest order and seemed to go to the very heart of the Sixth Amendment. And yet, two years after Ring was decided, the Supreme Court appears to have somewhat altered the foundation.

When asked to decide the retroactivity of Ring, the United States Supreme Court in Schriro v. Summerlin, 542 U.S. 348, -, 124 S.Ct. 2519, 2526, 159 L.Ed.2d 442 (2004), first explained that “[t]his holding [in Ring ] did not alter the range of conduct Arizona law subjected to the death penalty” and that Ring therefore was procedural rather than substantive. Id. at 2523. Second, the Court relied upon its own prior decision in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (declining to give retroactive application to a 1968 decision that extended the jury-trial guarantee to the states), and concluded that Ring did not establish a “watershed rule of criminal procedure”:

If under DeStefano a trial held entirely without a jury was not impermissibly inaccurate, it is hard to see how a trial in which a judge finds only aggravating factors could be.

Summerlin, 124 S.Ct. at 2526. The Court then held: “Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review.” Summerlin, 124 S.Ct. at 2526.

Based on Summerlin — as surprising as that decision may be in light of the Supreme Court’s own prior language in Ap-prendi and Ring — I can only conclude that Ring simply cannot be applied retroactively in Florida upon application of our Witt analysis. The United States Supreme Court is the ultimate arbiter of the federal constitution, and the decision in Ring is that Court’s own Sixth Amendment interpretation and application as it extended the Apprendi principles into the capital context. If the United States Supreme Court has held and stated that Apprendi principles as applied in the capital context in Ring are not a “watershed rule of criminal procedure” but merely a “new procedural rule that does not apply retroactively,” then I am precluded from determining that these decisions are of fundamental significance, significant magnitude or constitute a “jurisprudential upheaval” under Florida law, even though if writing upon a clean slate I would certainly do so. Further, the purpose served by a new rule of law is a key factor in determining retroactivity in Florida, and the United States Supreme Court in DeStefano held that the purpose served by the jury-trial guarantee (“to prevent arbitrariness and repression”) “favor[s] only prospective application” of that guarantee to the states. Therefore, I cannot logically say that the purpose served by the jury fact-finding requirement of Apprendi and Ring favors a different treatment in this regard. The interpretations of the concepts discussed in Apprendi and Ring by the United States Supreme Court drive my consideration that Ring cannot be classified as being of fundamental significance or of significant magnitude to cause retroactive application.

Based on the foregoing, I must agree that Ring is inapplicable in this post-conviction case.

. Cf. Apprendi, 530 U.S. at 538, 120 S.Ct. 2348 (O’Connor, J., dissenting) (terming the majority's reasoning in Apprendi "baffling, to say the least”).

. Witt v. State, 387 So.2d 922 (Fla.1980).

. See id. at 926 (holding that the retroactivity of a new rule of law may be determined by assessing (a) the purpose served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of retroactive application of the new rule).

. DeStefano, 392 U.S. at 633, 88 S.Ct. 2093 (explaining that the "purpose” served by a new rule of law is one of three factors for determining retroactivity under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and then holding that "[a]ll three factors favor only prospective application” of the jury-trial guarantee to the states).

ANSTEAD, J.,

concurring in part and dissenting in part.

Today, the majority acknowledges that in Florida a number of persons may be put to death in violation of their right to a trial by jury under the Sixth Amendment to the U.S. Constitution; yet, the majority nevertheless concludes that we are not going to do anything about it. With today’s holding, the majority has reduced to insignificance two of the most important United States Supreme Court decisions rendered in modern times impacting our criminal law and our death penalty jurisprudence. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

In doing so, it appears that the majority has failed to properly apply the test this Court long ago established for determining retroactivity in Witt v. State, 387 So.2d 922, 931 (Fla.1980), and instead has implicitly relied upon a narrow and irrelevant federal standard which for very good reason has never been adopted by this Court. While I agree there is no doubt that Ring and Apprendi would not be retroactively-applied under the federal standard, in Florida we long ago decided, based upon reasons of justice and fairness, to apply a very different standard to determine retro-activity. As the majority acknowledges, our decision on retroactivity turns on whether the Supreme Court’s decision in Ring has fundamental significance as contemplated by the test for retroactivity set out in Witt. Because I conclude that the Ring decision is clearly one of fundamental significance, I dissent to Part II of the majority opinion. .

Witt

Although the majority ultimately purports to examine the question of Ring’s retroactivity pursuant to Witt, it ignores our precedent where this retroactivity analysis was actually applied. In fact, if it had examined our precedent, it would have found that we have applied numerous decisions retroactively; and many of these decisions, while important in their own right, were of far less significance than the United States Supreme Court’s landmark holdings in Apprendi, and its progeny, Ring. Under any comparative analysis, there is simply no way that our holding today can be squared with our own prior retroactivity decisions applying Witt.

Teague

In addition to ignoring this Court’s, decisions applying Witt, the majority’s conclusions are flawed by the fact that they implicitly rely on United States Supreme Court and other federal decisions that evaluate retroactivity under the irrelevant and considerably more restrictive federal standard announced in the plurality opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), rather than the controlling standard we adopted in Witt. Tellingly, as in Teague, the majority analysis appears to singularly rely upon the value of finality and rare changes in substantive law, in its analysis and conclusion, while wholly disregarding the test we adopted in Witt and the fundamental importance of the constitutional right to a jury trial in the American justice system reaffirmed in the Apprendi and Ring decisions. It is apparent that the majority has failed to honor Witt’s express concern with fundamental issues of judicial process as well as substance. The majority appears to favor a more restrictive view that would exclude issues of process altogether from any retroactivity analysis.

There are fundamental and critical differences between the federal retroactivity rule and the rule for retroactivity we adopted in Witt. As has already been eloquently stated in Witt:

The doctrine of finality should be abridged only when a more compelling obj