The opinion
WINDOM, Presiding Judge, concurring in part and dissenting in part.
I firmly adhere to my decision to concur in this Court's decision to affirm Joshua Eugene Russell's capital-murder conviction and to dissent from its decision to reverse his sentence of death. On application for rehearing, the majority modified its opinion so as to omit the requirement that the circuit court file a return to remand, thus rendering its decision final and subject to further review.
The majority issued an additional writing on application for rehearing. In that writing, the majority states:
"The State's application for rehearing does not convince us that our original decision was in error. Upon further consideration, however, we no longer think a return to remand is necessary in this case. Therefore, we have modified our original opinion to omit the requirement that the circuit court make a return to our remand instructions. Because our decision is now final, Russell may file an application for rehearing as to that part of our judgment affirming his convictions."
I disagree with the statement that "[t]he State's application for rehearing does not convince us that our original decision was in error." Rather, I believe that this Court did err in reversing Russell's sentence of death by creating a new and unprecedented evidentiary burden on the State during a capital-sentencing preceding. I also believe that it is unnecessary to explain to the parties that the modified opinion now renders the majority's decision final and subject to an application for rehearing and certiorari review. Accordingly, I concur with the majority's decision to modify its opinion. I, however, dissent from the majority's decision to overrule the State's application for rehearing and its advisory opinion on application for rehearing.