dissenting.
I respectfully dissent.
In State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003), this Court held that a death sentence imposed by the trial court after the jury was unable to arrive at a verdict in penalty phase was unconstitutional because it violated defendant’s right to be sentenced on certain statutory factual determinations that must be made by a jury, id. at 271. The remedy, according to a 4-3 majority of the Court, was the mandatory and ministerial imposition of a life sentence, not a new penalty phase trial at which a jury, having made the factual determinations required under Whitfield, would decide anew between a life sentence or a death sentence. The majority explained that the disposition was controlled by section 565.040.2, RSMo, id. at 271-72, which states in pertinent part:
In the event that any death sentence imposed pursuant to this chapter is held to be unconstitutional, the trial court which previously sentenced the defendant to death shall cause the defendant to be brought before the court and shall sentence the defendant to life imprisonment without eligibility for probation, parole, or release except by act of the governor....
The dissent contended that section 565.040.2 refers only to cases “where a death penalty sentence cannot constitutionally be imposed upon a particular defendant,” id. at 273, and in Whitfield, the death penalty could indeed be constitutionally imposed simply by requiring a jury to make the requisite factual determinations on penalty phase retrial, id. at 273-74. Although this argument did not carry the day, and though the Court is now bound *496by the precedent established by the majority, the different facts in the case at hand compel a different result.
Defendant Baker, unlike defendant Whitfield, was never sentenced to death so as to trigger section 565.040.2. On its face, section 565.040.2 does not apply! Yet, by now applying, or rather misapplying, the Whitfield remedy of life without parole to Baker, the majority disregards the Whitfield rationale, which was based exclusively on section 565.040.2.
Unfortunately, it appears that this problem was overlooked because of the majority’s undue focus on the timeline for the motion for new trial. By its express terms, Whitfield applies to all pending cases. Id. at 268-69. This is so, according to the majority, regardless of the status of the motion for new trial, and it is so even if, as here, the Whitfield issue was not raised in a timely fashion to permit the court to rule on it. Indeed, the application of Whitfield, as the majority holds, encompasses a remedy for the Whitfield violation, and the remedy, too, is necessarily independent of the motion for new trial. Although Whitfield holds that the only permissible remedy is to sentence the defendant to life without parole, that holding, as I have attempted to show, is wholly dependent on section 565.040.2, which does not apply to persons who have not yet been sentenced. In short, the exclusive Whitfield remedy of life without parole cannot logically be extended to this case.
For these reasons, I would hold that the trial court had jurisdiction to take up the Whitfield violations and order the remedy of a new penalty phase hearing, regardless of the status of the motion for new trial. I would quash the writ.