dissenting.
I respectfully dissent.
My disagreement with the majority decision is a continuation of my disagreement with the majority decisions in State v. Whitfield, 107 S.W.3d 253, 272 (Mo. banc 2003) (Price, J., concurring and dissenting), and State ex rel. Baker v. Kendrick, 136 S.W.3d 491, 495 (Mo. banc 2004) (Price, J., concurring). I also disagree because the majority opinion in the instant case overlooks the applicable statutory language.
Section 565.040, RSMo 1994, is premised upon a “death sentence imposed.” Here, no death sentence was imposed. Unlike the situation in Baker, the trial court in this case had not allowed its jurisdiction to order a new trial to expire. See Rule 29.11(g) (“If the motion for new trial is not passed on within ninety days after the motion is filed, it is denied for all purposes”).
The trial court was fully within its right to order a new trial that would comply with the procedural requirements imposed by Whitfield as a result of the United States Supreme Court decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment). The preliminary writ should be quashed and a jury should be allowed to determine the defendant’s sentence.