Can a Florida Jury Recommend Death Sentence by Bare Majority Vote ?

In a concurring opinion in Way v. State, 760 So. 2d 903, 924 (Fla. 2000), the court identified Florida as being "in a small minority of jurisdictions with a statute that allows the imposition of the death penalty even though the jurors' vote is less than unanimous." In Ring, the United States Supreme Court named Florida, Alabama, Indiana, and Delaware as the four states having hybrid death schemes involving both judge and jury in the sentencing process. See 536 U.S. at 608 n.6. In Alabama, a jury recommendation of death, which reflects a finding of the existence of at least one aggravating circumstance, requires the vote of at least ten jurors. See Ala. Code 13A-5-46(f) (2002). Indiana requires a unanimous jury finding of the existence of at least one aggravating circumstance to support a death recommendation, and in legislation passed since Ring, now also requires special verdict forms on aggravating circumstances. See Overstreet v. State, 783 N.E.2d 1140, 1161 (Ind. 2003) (citing to Ind. Code 35-50-2-9(d), amended by P.L. 117-2002 2). Delaware changed its capital sentencing law shortly after the Ring decision and now prohibits a death sentence in the absence of a unanimous jury finding beyond a reasonable doubt of the existence of at least one aggravating circumstance. See 73 Del. Laws 423 (2002) (amending Del. Code Ann. tit.11, 4209(e)(1)). Thus, of the four hybrid states identified in Ring, Florida is now the sole jurisdiction in which the jury can determine that an aggravating circumstance exists, and thereby recommend death, by a bare majority vote.