concurring:
I concur, but write separately, because while I agree that the circuit court had subject-matter jurisdiction, and while I further agree that Appellant is entitled to a new sentencing proceeding because of the erroneous jury charge, I would not reach the issue of entitlement to a new sentencing under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). I nonetheless wish to elucidate my understanding of Franklin v. Maynard, 356 S.C. 276, 588 S.E.2d 604 (2003), to the extent that it differs from that expressed by the majority.
As the majority observes, if on remand Appellant argues that he was mentally retarded at the time of the crime, then the circuit court -will be required to follow the procedure set forth in Franklin for determining mental retardation in post-Atkins cases.1 The judge will determine whether Appellant is mentally retarded as a preliminary matter. If the judge determines that Appellant is mentally retarded, then Appellant cannot be sentenced to death. If the judge determines that Appellant is not mentally retarded, then the issue will remain for the jury after the parties present their cases. If the jury determines, in the first instance, that Appellant is mentally retarded, then the death penalty cannot be imposed. Franklin, 356 S.C. at 279, 588 S.E.2d at 606. If the jury determines that Appellant is not mentally retarded, then it will proceed as in any death-penalty case, determining whether aggravating and/or mitigating circumstances exist, and if aggravating circumstances are found, whether to recommend death. See S.C.Code Ann. § 16-3-20 (2003).
My understanding of Franklin is the jury, post-Atkins, does not consider mental retardation as a “mitigating circum*652stance.” See Franklin, 356 S.C. at 279, 588 S.E.2d at 606 (holding that “[i]f the jury finds this mitigating circumstance [mental retardation], then a death sentence will not be imposed”) (emphasis added). Technically, the jury’s consideration of mental retardation is a threshold matter, as is the trial judge’s consideration of the issue. If the jury finds that the defendant is mentally retarded, then the jury’s role ends. It does not then consider aggravating and mitigating circumstances, for it has effectively determined that the state cannot seek the death penalty. See § 16-3-20(B). In such a case, the judge must determine whether the defendant should be sentenced to life imprisonment or to a thirty-year-minimum term. See § 16-3-20(A).
Only when the jury determines that the defendant is not mentally retarded does it consider aggravating and mitigating circumstances. Then, the jury must consider the state of the defendant’s mental health and determine whether it constitutes a “mitigating circumstance.” See § 16 — 3—20(C)(b)(2), (6), and (7). Logically, however, the jury cannot consider the defendant’s mental retardation as a mitigating circumstance under section 16 — 3—20(C)(b)(10), since, as explained above, if the jury believes that the defendant is mentally retarded, then the jury never even reaches issues of aggravation and mitigation.
In sum, I concur in the majority opinion in all substantive respects. I disagree only with the use of the term “mitigating circumstance” with respect to a jury’s determination in a post-Atkins case whether the defendant is mentally retarded.
. While Appellant's first sentencing was pre-Atkins, his new sentencing will be post-Atkins.