concurring in part and dissenting in part:
While Judge Kravitch has analyzed and critiqued Sections I and III of the majority opinion in a most comprehensive manner, I write separately to emphasize the bases for my objections to these portions of the majority opinion.
The petition before us presents undenied allegations that the Florida Supreme Court considered nonrecord psychiatric, psychological, and post sentence reports on the direct appeal of petitioner’s conviction and sentence. The Florida Supreme Court has admitted the practice but has attempted to justify its actions by drawing a fine distinction between capital sentence “review” as defined by state law and constitutionally required “supervisory standards” imposed by the United States Supreme Court. Brown v. Wainwright, 392 So.2d 1327, 1333 & n. 17 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). In Brown the Florida court asserted that “non-record information we may have seen, even though never presented to or considered by the judge, the’jury, or counsel, plays no role in capital sentence ‘review.’ ” 392 So.2d at 1332-33. Yet at the same time the court, citing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), stated that “[t]he ‘tainted’ information we are charged with reviewing was ... in every instance obtained to deal with newly-articulated procedural standards.” Id. at 1333 n. 17. These “procedural standards,” the court admitted, “... are required to make the statute operate in a constitutional manner.” Id. It is clear, therefore, from the Brown opinion that the Florida Supreme Court has considered nonrecord material on direct appeal in capital eases for the purpose of complying with requirements of the United States Constitution. The court’s failure to make the appellants aware of the use of this information, and to afford them a reasonable opportunity to challenge or explain any portion of it, however, is a clear abrogation of its duty under the Constitution.
The majority simply cannot avoid the direct implication of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), in which the Supreme Court invalidated a death sentence imposed in part on information contained in an undisclosed presentence report. A majority of the Justices in Gardner agreed that a trial court’s reliance on unrevealed information clearly violates the constitutional standards required for capital sentencing. The plurality opinion concluded that “the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause.” 430 U.S. at 358, 97 S.Ct. at 1204 (Stevens, J.). Thus, the Florida Supreme Court’s practice of reviewing nonrecord materials on direct appeal runs afoul of the Due Process Clause — viewed either independently or as “the vehicle by which the strictures of the Eighth Amendment are triggered.... ” Id. at 364, 97 S.Ct. at 1207 (White, J., concurring). The same conclusion applies to direct review of death sentences by the Florida Supreme Court.
Direct review of capital sentences to safeguard against arbitrary and capricious sentencing is an essential element in the constitutional imposition of the death sentence. See, e.g., Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976) (plurality) (The provision for appellate review in the Georgia capital sentencing system serves as a check against the random or arbitrary imposition of the death penalty.); Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, *873335 n. 11, 96 S.Ct. 3001, 3007 n. 11, 49 L.Ed.2d 974 (plurality) (striking down the death statute in part because it did not provide for “judicial review to safeguard against capricious sentencing determinations”). Direct capital sentence review by the Florida Supreme Court is even more integral to the capital sentencing process of Florida than it is in other states. In upholding the facial constitutionality of the Florida death penalty in Proffitt, the Supreme Court emphasized the Florida Supreme Court’s role as independent evaluator of the evidence in a system that attempted “to assure that the death penalty will not be imposed in an arbitrary or capricious manner.” 428 U.S. at 252-53, 96 S.Ct.' at 2966. “[T]o the extent that any risk ... [of arbitrary or capricious sentencing] exists, it is minimized by Florida’s appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida ‘to determine independently whether the imposition of the ultimate penalty is warranted.’ ” 428 U.S. at 253, 96 S.Ct. at 2967 (quoting Songer v. State, 322 So.2d 481, 484 (Fla.1975), vacated on other grounds, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977)). In performing its review function the Florida Supreme Court “evaluate[s] anew the aggravating and mitigating circumstances of the case to determine whether the punishment is appropriate.” Harvard v. State, 375 So.2d 833, 834 (Fla.1977), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).
The statute contemplates that the trial jury, the trial judge and this Court will exercise reasoned judgment as to what factual situations require the imposition of death and which factual situations can be satisfied by life imprisonment in light of the totality of the circumstances present in the evidence. Certain factual situations may warrant the infliction of capital punishment, but, nevertheless, would not prevent either the trial jury, the trial judge, or this Court from exercising reasoned judgment in reducing the sentence to life imprisonment.
Alvord v. State, 322 So.2d 533, 540 (Fla.1975) (emphasis added). The Florida Supreme Court regularly reevaluates the evidence in death penalty cases either to sustain the sentence or to reverse it on a factual basis overlooked by the trial court. See, e.g., Mines v. State, 390 So.2d 332 (Fla.1980), cert. denied, 451 U.S. 916, 101 S.Ct. 1994, 68 L.Ed.2d 308 (1981); Kampff v. State, 371 So.2d 1007, 1010 (Fla.1979); Shue v. State, 366 So.2d 387, 389-90 (Fla.1978); Huckaby v. State, 343 So.2d 29, 33-34 (Fla.), cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977); Harvard v. State, supra; Jones v. State, 332 So.2d 615, 619 (Fla.1976); Songer v. State, supra; Taylor v. State, 294 So.2d 648, 651 (Fla.1974).
Death sentence review by the Florida Supreme Court, therefore, affects the “substantial rights” of the defendant, who is entitled to at least a minimum of due process protection. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 256, 19 L.Ed.2d 336 (1967). In order for the Florida Supreme Court to review the imposition of the death sentence with “rationality and consistency,” Proffitt, supra, 428 U.S. at 259, 96 S.Ct. at 2969, defendants and their counsel must be aware of all the material under consideration by the court. Not only is the defendant’s right to counsel implicated, Anders v. California, 386 U.S. 738, 742, 87 S.Ct. 1396, 1399, 18 L.Ed.2d 493 (1967), but so is the right of confrontation. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The receipt of psychiatric and psychological reports from the Department of Corrections also implicates a defendant’s Fifth Amendment rights. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (recognizing Fifth Amendment right to be informed of right to remain silent, to have questions cease, and to consult with an attorney before being subjected to psychiatric examination that may be used against defendant in capital sentencing proceedings). By considering nonrecord information without these safeguards the Florida Supreme Court has jeopardized the “degree of relia*874bility” and rationality required in the administration of the death penalty. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 303-04, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976).
It does not matter that the Florida Supreme Court may have sought the nonrecord material for the purpose of complying with “newly-articulated [constitutional] procedural standards,” such as those announced in Lockett v. Ohio, supra, and Gardner v. Florida, supra. The Florida Supreme Court itself recognized that these “procedural standards” are “required to make the statute operate in a constitutional manner.” Brown v. Wainwright, supra, 392 So.2d at 1333 n. 17. Even this explanation for soliciting the information, however, is not fully satisfactory. The petitioner contends, and the state has not denied, that the Florida Supreme Court began soliciting nonrecord material as early as 1975. Gardner and Lockett were decided by the United States Supreme Court in 1977 and 1978.
It is important to note that the Florida Supreme Court has never denied considering nonrecord material of the kind alleged in this case. Instead, the court merely attempted to draw a legal distinction between the statutory “review” process and constitutionally required “supervisory standards.” The majority’s acceptance of this distinction, in my opinion, is nothing more than the adoption of a legal conclusion expressed by the Florida Supreme Court. Even when the court in Brown stated that “non-record information we may have seen, even though never presented to or considered by the judge, the jury, or. counsel plays no role in capital sentence ‘review,’ ” 392 So.2d at 1332-33, the court was only articulating its statutorily imposed duty. It was not stating its actual practice. For this reason I find it unnecessary to discuss the “presumption of regularity” relied on in part by the majority.
I do not wish to imply that the Florida Supreme Court has been dishonest or has attempted to “cover-up” the facts. The point of this dissent is that it is constitutionally unacceptable for this Court to affirm the denial of a writ of habeas corpus when the Florida Supreme Court has admitted considering nonrecord material for the purpose of complying with the United States Constitution. In addition, the risk is great that information requested for one purpose will even unintentionally be used in connection with another. That risk, in the context of the death penalty, and in the face of an ambiguous explanation, is constitutionally unacceptable. See Lockett v. Ohio, supra at 604, 98 S.Ct. at 2964. (The “difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.”); Gardner v. Florida, supra, 430 U.S. at 364, 97 S.Ct. at 1207 (White, J., concurring) (“A procedure for selecting people for the death penalty which permits consideration of .. . secret information relevant to the ‘character and record of the individual offender,’ . .. fails to meet the ‘need for reliability in the determination that death is the appropriate punishment’ ...” (quoting Woodson v. North Carolina, supra, 428 U.S. at 304, 305, 96 S.Ct. at 2991)). The Florida Supreme Court’s role in the direct review of death sentences is of such importance that it may not choose to solicit psychiatric, psychological, and other reports without the knowledge of the defendant, and without giving defendant or his counsel an opportunity to comment on or challenge the information in the reports. Because the alleged violations in this case have gone undenied, and because the Florida Supreme Court has admitted soliciting nonrecord material as a matter of practice, in my judgment the only way to remedy this violation would be to direct the district court to grant the writ conditionally. The writ would become final in the event that the Florida Supreme Court does not grant petitioner a new direct review of his conviction and sentence. Either the new review must be undertaken completely without the benefit of nonrecord material, or, if the court decides to continue its practice, the new review must give petitioner and his counsel adequate notice of the use of nonrecord information, with adequate opportunity to comment on and challenge the material.
*875However, in my judgment the majority commits a more serious error than that of stamping its approval on the review given this case by the Florida Supreme Court. The majority has grievously erred by not requiring the full resentencing of petitioner as a result of the invalidity of three statutory aggravating factors considered by the jury and relied on by the judge. The petitioner is entitled to a full resentencing procedure in this case because the consideration of and reliance on invalid aggravating factors in the face of substantial evidence of mitigating factors resulted in a situation in which the presence of the invalid factors could have tipped the scales against the petitioner. By adding three impermissible “weights” to the weighing process, the sentencing discretion of the jury and the judge was not properly channeled to eliminate the risk of arbitrary, capricious, or disproportionate results. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). In addition, the petitioner’s right to have the jury and judge fully consider all mitigating evidence in his behalf, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), was substantially diminished by the presence of “overloaded” aggravating factors. Not only was the sentencing process significantly affected by the presence of invalid factors, but the sentence itself was not “rationally reviewable” by the Florida Supreme Court. Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976). Moreover, after an error of this kind has been made, it is completely impermissible for the Florida Supreme Court, and now this Court, to usurp the role of sentencer by guessing as to how the jury and the judge would have decided the case in the absence of the invalid aggravating factors.
The Florida Supreme Court’s original rationale for upholding a death sentence which rests partially on invalid aggravating factors was that, in the presence of at least one valid aggravating factor and in the absence of any mitigating factors, “death is presumed to be the appropriate penalty.” Ford v. State, 374 So.2d 496, 503 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980); Elledge v. State, 346 So.2d 998 (Fla.1977); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The rationale was apparently modified to some extent in Brown v. State, 381 So.2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981), which held that the presence; of a mitigating factor, characterized by the trial judge as of “ ‘some minor significance,’ ” was not sufficient to require resentencing in the face of the invalidity of an aggravating factor, when sufficient aggravating factors remained so that the court could know that the weighing process had not been compromised by the consideration of the invalid aggravating factors. Id. at 696.
The danger of the Brown approach becomes evident in this case, however, in that the Florida Supreme Court has essentially taken over the role of sentencer. At the sentencing hearing the petitioner not only presented the statutory mitigating factor of his age (20), but also presented substantial evidence of prior good character and loyal family commitment. The petitioner argues that he had only recently become involved in crime as a result of losing his last job, and a recent involvement with drugs. Instead of remanding the case so that the jury could properly reconsider and reweigh this mitigating evidence against the valid aggravating factors, the Florida Supreme Court took it upon itself to conclude that “the proper sentence is the death penalty.” 374 So.2d at 503 (emphasis added). The Florida Court clearly imposed its own view of the proper outcome over that of the sentencing authority. Even if the jury and judge were to reach the same result on remand, it is error to substitute an appellate court decision for that of the trial court sentencing authority. Otherwise, there would have been no need ever to have empaneled the jury, or to submit the jury’s recommendation to the judge for findings.
By substituting its own view of the evidence for that of the jury and the judge, *876the Florida Supreme Court disregards the fundamental premise of Proffitt, supra, that it is first of all the jury’s, and then the judge’s duty to consider “[wjhether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and ... [bjased on these considerations, whether the defendant should be sentenced to life or death.” Fla. Stat.Ann. §§ 921.141(2)(b), (c), quoted in Proffitt v. Florida, supra, 428 U.S. at 248, 96 S.Ct. at 2964. Only after the jury and the judge have properly considered the evidence may the state supreme court “re-, view” and “reweigh” the evidence. Proffitt, supra at 253, 96 S.Ct. at 2967. The initial jury decision, even though it is advisory, substantially affects the burden of proof to be applied by the trial judge and standard of review on appeal. “In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975); quoted in Proffitt v. Florida, supra, 428 U.S. at 249, 96 S.Ct. at 2965. Thus it is essential that the weighing process be first undertaken by the jury, then by the judge, and only later by the Florida Supreme Court. To do otherwise is not only to introduce elements of unreliability, but to upset the “rationality and consistency” of death sentence administration. Proffitt, supra, 428 U.S. at 259, 96 S.Ct. at 2969.
In addition, the failure to require full resentencing after invalidating three aggravating factors abrogates the substance of petitioner’s rights under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In Lockett the Supreme Court held that the Eighth Amendment requires that the sentencer “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604, 98 S.Ct. at 2964 (emphasis in original). In Eddings the Court held that “Just as the state may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer, refuse to consider, as a matter of law, any relevant mitigating evidence.” 455 U.S. at 113, 102 S.Ct. at 875 (emphasis in original). The Supreme Court concluded that “... state courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances.” Id. The jury and judge in this case could not have effectively weighed the evidence of petitioner's character and personal record when the state had improperly placed three invalid “weights” on the same set of scales. See Enmund v. Florida, - U.S. -, -, 102 S.Ct. 3368, 3394, 73 L.Ed.2d 1140 (1982) (O’Connor, J.; dissenting) (“Although the state statutory procedures did not prevent the trial judge from considering any mitigating circumstances, the trial judge's view of the facts, in part rejected by the state supreme court, effectively prevented such consideration.”). Accordingly, the proper disposition of this case would require resentencing by both jury and judge.
For these reasons I dissent from Sections I and III of the majority opinion.