(dissenting):
I respectfully dissent, concluding that the State violated the constitutional provision against double jeopardy1 in the second sentencing trial by submitting for the jury’s consideration an aggravating circumstance which the jury in the first sentencing proceeding had considered but had failed to find to exist beyond a reasonable doubt.
Section 16-3-20(C) of the Capital Punishment Statutory Complex provides in pertinent part: “The jury, if its verdict be a recommendation of death, shall designate in writing, and signed by all members of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt.” (Emphasis added).
The language of Section 16-3-20(C) quoted above mandates that a jury shall designate in writing which of those *61statutory aggravating circumstances it has found beyond a reasonable doubt. Thus, when several such circumstances are submitted to the jury but a designation as to only a few is made, the only legal conclusion to be drawn is that the undesignated, submitted circumstances were not established beyond reasonable doubt.
The United States Supreme Court recently applied the principles of double jeopardy prohibition to the sentencing portion of the bifurcated capital trial. Bullington v. Missouri, ... U. S....., 101 S. Ct. 1852, 68 L. Ed. (2d) 270 (1981). In Bullington the Supreme Court held that once the sentencing jury recommends a life sentence the State may not on retrial of the matter again seek the death penalty. “By enacting a capital sentencing procedure that resembles and is like a trial on the issue of guilt or innocence,. . . Missouri explicitly requires the jury to determine whether the prosecution ‘has proved its case’ .... A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final. The values that underly this principle ... are equally applicable when a jury has rejected the State’s claim that the defendant deserves to die . . .” . . . U. S.....at . . . ., 101 S. Ct. 1852 at 1861, 68 L. Ed. (2d) 270 at 282-283. (Emphasis in original).2
The above statement follows logically from the rule of law as restated in United States v. Di Francesco, .... U. S. ... , 101 S. Ct. 426, 66 L. Ed. (2d) 328 (1980):
“An acquittal is accorded special weight. “The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal,’ for the ‘public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation’. Arizona v. Washington, 434 U. S. [497] at 503 [98 S. Ct. 824, at 829], 54 L. Ed. (2d) 717. The law ‘attaches particular significance to an acquittal.’ United States v. Scott, 437 U. S. [82] at 91, 98 S. Ct. 2187, at 2193, 57 L. Ed. (2d) 65.” . . . U. S. . . . at . . . ., 101 S. Ct. 426 at 433, 66 L. Ed. (2d) 328 at 340-341.
*62For purposes of the double jeopardy guarantee, a recommendation of life is an acquittal as to the death issue.
I believe that the double jeopardy principles must extend to the situation at bar. Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L. Ed. (2d) 707 (1969) holds that when guilt beyond reasonable doubt is established as to one crime but is not established beyond reasonable doubt as to a second crime tried with the first, then if the defendant obtains a reversal on appeal, he may not be tried a second time for the crime not established at the original trial. See, State v. Kirby, 269 S. C. 25, 236 S. E. 33 (1977). The same rule should be applicable to the aggravating circumstances submitted to a sentencing jury. If the jury recommending death fails to designate one of several aggravating circumstances submitted to it, then if the defendant obtains a vacation of his sentence, on retrial the submitted but undesignated, aggravating circumstance should not be resubmitted to the second jury. The first jury has already determined that existence of the circumstance is not free of reasonable doubt.
The majority gives credence to Gerberding v. Swenson, 435 F. (2d) 368, (8th Cir. 1970), cert. denied, 403 U. S. 906, 91 S. Ct. 2211, 29 L. Ed. (2d) 682 (1971). In Gerberding a second offender statute required that a convicted felon be sentenced according to the maximum punishment if he had previously been convicted of any offense punishable by imprisonment in the penitentiary. The defendant had three prior felony convictions but one was constitutionally infirm because it was obtained by a guilty plea without the assistance of counsel. At the trial for the fourth offense, the prosecution introduced evidence of all three prior convictions, and the maximum punishment was imposed. The defendant alleged that the use of the constitutionally infirm conviction voided the entire later conviction. The Eighth Circuit disagreed. The jury had to find only one prior conviction before it imposed the maximum sentence. Since there were two other valid convictions, the use of the third was merely cumulative. Unlike our Section 16-3-20(C), the jury did not have to designate which of the prior convictions it relied upon to enhance the punishment. In contrast, our Capital Punishment Statutory Complex re*63quires a jury to designate each aggravating circumstance it found beyond a reasonable doubt. A resubmission to the jury of any aggravating circumstance which was found not to exist beyond a reasonable doubt would constitute double jeopardy.3
I quote with approval the following observations made by the North Carolina Supreme Court in State v. Silhan, 302 N. C. 223, 275 S. E. (2d) 450 (1981):
“If upon defendant’s appeal of a death sentence the case is remanded for a new sentencing hearing, double jeopardy prohibitions would not preclude the state from relying on any aggravating circumstance of which it offered sufficient evidence at the hearing appealed from and which was either not then submitted to the jury or, if submitted, the jury then found it to exist. The dictates a [sic] double jeopardy would preclude the state from relying on any aggravating circumstance of which it offered insufficient evidence at the hearing appealed from. This would be tantamount to the state’s having offered insufficient evidence of an essential element of a criminal offense in which case the state, because of double jeopardy considerations, could not retry the defendant even if it had sufficient evidence which could be offered at a new trial. Similarly the prohibition against double jeopardy would preclude the state from relying, at a new sentencing hearing, on any aggravating circumstance the existence of which the jury at the hearing appealed from, upon considering it, failed to find. The jury’s failure to find the existence of the aggravating circumstance, after it had considered it, would be tantamount to defendant’s having been acquitted of this circumstance.”
I would vacate the death sentences of Gilbert and Gleaton and remand the matter for a new sentencing proceeding.
The Fifth Amendment of the United States Constitution provides in part: “. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .”
The South Carolina Constitution at Article I, Section 12 provides in part: “No person shall be subject for the same offense to be twice put in jeopardy of life or liberty . . .”
Missouri’s bifurcated sentencing procedure is similar to the South Carolina statutory procedure.
Any contention that the error is harmless since one other aggravating circumstance was found to exist beyond reasonable doubt is without merit. The jury can recommend life even if an aggravating circumstance is properly established. Thus, we can only speculate as to whether this jury would have recommended death had only the armed robbery circumstance been submitted to it for consideration. This speculation is the sort of arbitrary factor which is intolerable in a case of this nature.