STATE OF FLORIDA, APPELLANT,

v.

JOSEPH P. SMITH, APPELLEE.

PER CURIAM.

This case is before the Court on appeal from an order granting a successive motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, we have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

FACTS AND BACKGROUND

This Court has previously detailed the gruesome facts of this case. Smith v. State (Smith I ), 28 So.3d 838, 844-53 (Fla. 2009). Relevant to the instant proceeding, Joseph Smith was convicted of first-degree murder, kidnapping, and capital sexual battery of eleven-year-old Carlie Jane Brucia and was sentenced to death. Id. at 844. After a penalty phase, the jury recommended a death sentence by a vote of ten to two. Id. at 851.1 On direct appeal, we *809held that the trial court's finding of the CCP aggravator was not supported by competent, substantial evidence and thus the CCP aggravator was stricken. Id. at 868. Nevertheless, we ultimately affirmed Smith's convictions and sentence. Id. at 878. The United States Supreme Court denied certiorari review on June 28, 2011. Smith v. Florida , 564 U.S. 1052, 131 S.Ct. 3087, 180 L.Ed.2d 912 (2011).

Smith subsequently filed a motion for postconviction relief raising numerous challenges, including a Ring2 challenge, which the postconviction court summarily denied. Smith v. State (Smith II ), 151 So.3d 1177, 1181 (Fla. 2014). Smith appealed to this Court, and we affirmed the denial of postconviction relief. Id. at 1184. Next, Smith filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida, which was stayed as of July 15, 2016.

On January 5, 2017, after the issuance of Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), Hurst v. State , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), and its progeny, Smith filed this Successive Motion to Vacate Death Sentence, which the postconviction court granted with regard to the claim that Smith is entitled to a new penalty phase. The State's appeal followed. On September 19, 2017, this Court issued an order to show cause why the lower court's order should not be affirmed based on this Court's precedent in Hurst , Davis v. State , 207 So.3d 142 (Fla. 2016), and Mosley v. State , 209 So.3d 1248 (Fla. 2016), to which the parties responded.

ANALYSIS

Smith contends that he is entitled to relief pursuant to the United States Supreme Court's opinion in Hurst v. Florida , which held that Florida's capital sentencing scheme was unconstitutional because "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough." 136 S.Ct. at 619. On remand, this Court held that a unanimous jury recommendation for death is required before the trial court may impose a sentence of death. Hurst , 202 So.3d at 54. Moreover, this Court held that "in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge." Id. We also determined that Hurst error is capable of harmless error review. Id. at 67.

*810Hurst applies retroactively to defendants whose sentences became final after the United States Supreme Court issued its decision in Ring . Mosley , 209 So.3d at 1283. Thus, Hurst applies retroactively to this case, which became final in 2011.

Accordingly, we must determine whether the Hurst error during Smith's penalty phase proceeding was harmless beyond a reasonable doubt. "[I]n the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury's failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to [the] death sentence ...." Hurst , 202 So.3d at 68. As applied to the right to a jury trial with regard to the facts necessary to impose the death penalty, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that each aggravating factor was proven beyond a reasonable doubt, that the aggravating factors were sufficient to impose death, and that the aggravating factors outweighed the mitigating circumstances.

We conclude that the State cannot establish that the error in Smith's case was harmless beyond a reasonable doubt. In Smith's case, the jury did not make the requisite factual findings and did not unanimously recommend a sentence of death. Instead, the jury recommended the sentence of death by a vote of ten to two. Therefore, this Court has no way of knowing if the jury unanimously found any of the five valid aggravating factors-(1) Smith committed the felony while he was on probation; (2) the murder was committed while Smith was engaged in the commission of a sexual battery or kidnapping; (3) the murder was committed for the purpose of avoiding lawful arrest; (4) HAC; and (5) the victim was under twelve years of age-that the aggravating factors were sufficient to impose a death sentence, or whether the aggravating factors outweighed the mitigating circumstances. Further, this Court cannot speculate why the two jurors who voted to recommend a sentence of life imprisonment determined that a sentence of death was not the appropriate punishment. Thus, in line with our post- Hurst precedent,3 we conclude that the Hurst error in Smith's case was not harmless beyond a reasonable doubt. Accordingly, we vacate Smith's sentence of death and remand for a new penalty phase.

CONCLUSION

Therefore, we affirm the postconviction court's order granting Smith a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY and POLSTON, JJ., dissent.

LAWSON, J., dissents with an opinion.

LAWSON, J., dissenting.

*811See Pagan v. State , 235 So.3d 317, 319-20 (Fla. 2018) (Lawson, J., dissenting).