Sitting by Designation, concurring in part and dissenting in part.

I join with the majority in all respects but one, namely, the validity of the resentencing procedures which permit the new sentence to rest on findings of aggravating circumstances that were found, in the first sentencing proceeding, not to be present in the crime. The majority asserts that reconsideration of any such circumstances would not constitute double jeopardy. Guided by the interpretation of the double jeopardy clause recently advanced by the United States Supreme Court in Bullington v. Missouri, 451 U.S. 430 , 101 S.Ct. 1852 , 68 L.Ed.2d 270 (1981), I would permit reconsideration only of a narrower class of such aggravating circumstances — those that do not rest on evidence similar in nature to that supporting a conviction or acquittal of a crime. Because the record does not make clear whether on resentencing a death sentence had been imposed on any of the defendants in reliance on what I would consider an impermissible new finding of an aggravating circumstance, I would remand to the district court for such a determination.

*1266 Although it addresses a different factual situation, Bullington v. Missouri is, as the majority recognizes, relevant to the problem we face here. In Bullington , the defendant had been convicted of first-degree murder and sentenced to life imprisonment, but a new trial was granted because of constitutionally defective jury selection. At the second trial, Bullington was again convicted. At his second sentencing proceeding, the prosecution again sought the imposition of the death penalty, even though the sentencing jury at the first sentencing proceeding had not found the aggravating and mitigating circumstances to warrant a sentence of death. The Supreme Court of Missouri ruled that the prosecution could seek the death penalty the second time, and Bullington appealed.

In reviewing the Missouri Supreme Court ruling, the United States Supreme Court reaffirmed its earlier holdings that resentencing within the limits existing at the time of the first sentence generally does not implicate the double jeopardy clause. Id. 451 U.S. at 446 , 101 S.Ct. at 1862 , 68 L.Ed.2d at 278 . See, e.g., United States v. DiFrancesco, 449 U.S. 117 , 101 S.Ct. 426 , 66 L.Ed.2d 328 (1980); North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). And the Court reaffirmed Stroud v. United States, 251 U.S. 15 , 40 S.Ct. 50 , 64 L.Ed. 103 (1919), where the imposition of a death sentence on resentencing following an initial life sentence was held not to violate the double jeopardy clause. But the Supreme Court in Bulling-ton distinguished those earlier cases, and other similar cases, on the ground that they had addressed situations in which the senfencing was essentially discretionary, so that a lesser sentence could not be construed as an acquittal of any factual charge. The Bullington majority considered the features of the Missouri death sentencing procedure to be significantly different from the normal sentencing procedure 1 and inferred from those special features that a sentencing jury’s imposition of a life sentence rather than a death sentence was in effect a finding that the State had failed to establish beyond a reasonable doubt its case that the death penalty was warranted. Because the Supreme Court considered that determination to be the functional equivalent of an acquittal of criminal charges, it held that the Missouri Supreme Court, by exposing Bullington to the risk of a death sentence in the second hearing after the State had failed to prove its case in the first hearing, had contravened the double jeopardy clause. 451 U.S. at 437-51 , 101 S.Ct. at 1857-64, 68 L.Ed.2d at 278-84 . 2

The defendants in the present case each received a death sentence at the first hearing; unlike Bullington, they were not exposed to the possibility of a harsher sentence at the second hearing. However, the majority would permit some of the defendants here to be subjected at their second sentencing procedure to reconsideration of all explicit findings originally made in their favor, even though, if all mitigating circumstances had properly been considered the first time, those findings might have resulted in a life sentence rather than death at the first hearing. Although, because of the narrowness of its holding, Bullington may be of uncertain application outside the facts *1267 of its specific environment (a sentence of life at the first hearing, followed by the possibility of a death sentence at the second hearing), the reasoning of that case would appear incompatible with the majority’s holding here, even though the defendants here were not exposed to the risk of harsher sentences at the second hearing than they actually received at the first.

Indeed, in some ways the double jeopardy question in the present situation may even be less troublesome than that confronted in Bullington . The Supreme Court there appeared to be concerned with ascertaining the extent to which the life sentence constituted an acquittal of factual allegations rather than an exercise of discretion. The Court placed great emphasis on the trial-like nature of the Missouri death sentencing procedure precisely because that similarity supported the inference that a life sentence arising out of the proceeding was in effect an acquittal of the factual predicate for a death sentence 451 U.S. at 437-51 , 101 S.Ct. at 1857-64, 68 L.Ed.2d at 278-84 . See Comment, The Supreme Court Term, 1980, 95 Harv.L.Rev. 91,118 (1981). Here we are not confronted with the task of uncovering the precise predicate of a sentence; rather, in the present situation we have explicit factual findings of the sentencing judge at the initial hearing as to the existence or nonexistence of each enumerated aggravating circumstance. See Ariz.Rev.Stat. § 13-454(C), amended and recodified at § 13-703(D). 3 Some of these findings, such as those going to heinousness, pecuniary motive, or risk of death, would normally rest on evidence similar in nature to that supporting a conviction or acquittal on guilt. If the life sentence in Bullington constituted, for purposes of double jeopardy, an “acquittal” of aggravating circumstances that would be necessary to sustain a death sentence, it is difficult to suggest — as does the majority — that an explicit finding at a sentencing hearing as to the nonexistence of an aggravating circumstance, when that finding rests on evidence similar to that which would be adduced at trial, is not an “acquittal” of that aggravation, and of any death sentence based even in part on that aggravation.

Following a finding, resting on factual evidence presented at a sentencing hearing, that an aggravating circumstance did not exist, the reasoning in Bullington would appear to militate against permitting the prosecution a second chance to prove that the aggravating circumstance did exist and justified the imposition of the death penalty. This would most clearly be so where the State wished to establish at the second hearing the existence of an aggravating circumstance that took place before the initial sentencing hearing, but that the State, for whatever reason, had failed to establish *1268 initially. For example, in the case of appellant Jordan, the aggravating circumstances that had justified the initial imposition of the death sentence had consisted solely of several prior convictions. On resentencing, the judge also found that the specific crime for which he was being sentenced had been heinous and for pecuniary gain. 4 But if the State wished to introduce sufficient evidence to establish that, say, “The defendant committed the offense in an especially heinous, cruel, or depraved manner,” Ariz.Rev. Stat. § 13-902(E)(6), it had at the first sentencing hearing its “one fair opportunity to offer whatever proof it could assemble,” Bullington v. Missouri, 451 U.S. at 446 , 101 S.Ct. at 1862 , 68 L.Ed.2d at 283 ; Burke v. United States, 437 U.S. 1, 16 , 98 S.Ct. 2141, 2149 , 57 L.Ed.2d 1 (1978); Bullington would appear to hold that “the State is not entitled to another.” 451 U.S. at 446 , 101 S.Ct. at 1862, 68 L.Ed.2d at 283 . A new opportunity to show the existence of that aggravating circumstance would provide the same sort of repeated attempt to convict that the Supreme Court in United States v. DiFrancesco, 449 U.S. 117, 136 , 101 S.Ct. 426, 437 , 66 L.Ed.2d 328 (1980), observed to be absent in the ordinary resentencing situation. 5

It is not clear from the record, especially because at the time of argument resentencing of some of the appellants had apparently not been completed, whether any appellants have been sentenced to death on the basis of a finding of a new aggravating circumstance resting on factual evidence that could have been adduced at the first trial, or whether any appellants are currently defending allegations of such aggravating circumstances in the course of ongoing resentencing proceedings. It does appear that at least one appellant, Valencia, has been sentenced to death on the basis, in part, of a separate conviction that was rendered subsequent to the initial sentencing hearing. State v. Valencia, 124 Ariz. 139 , 602 P.2d 807 (1979). This sort of aggravating circumstance, however, presents a significantly different question from that posed by most of the aggravating circumstances under the Arizona statute.

One crucial distinction is that, in a case such as Valencia’s, the new finding of an aggravating circumstance is based on an event occurring after the initial sentencing hearing. North Carolina v. Pearce would suggest that, at least in an ordinary sentencing proceeding (i.e., one not involving capital punishment), this new conviction could be considered by the judge on resentencing because it took place after the first sentencing proceeding. See 395 U.S. at 726 , 89 S.Ct. at 2081 . On the other hand, it appears that Bullington might foreclose a prosecutor in Missouri from seeking a death sentence on resentencing, even if a separate conviction had been rendered in the interim, once the initial sentencing jury had sentenced the defendant to life imprisonment. But neither Pearce nor Bullington provides clear guidance in a case such as Valencia’s, where consideration of a conviction — previously found by the sentencing judge not to exist — cannot lead to a sentence harsher than that meted out initially. In the absence of such guidance, I would rely, as did the dissenting Justices in Bullington , on the general concerns underlying the double jeopardy clause — specifically, the concern *1269 that relitigation of factual issues may impose an unwarranted burden on the defendant and increase the risk of an erroneous finding of guilt. See 451 U.S. at 451— 52, 101 S.Ct. at 1864-65, 68 L.Ed.2d at 586-87 (Powell, J., dissenting).

This concern illuminates a second, and more fundamental distinction in sentencing proceedings between the aggravating circumstance of intervening criminal convictions and other sorts of aggravating circumstances. In the situation before us, it does not appear that consideration of intervening criminal convictions increases the chance of erroneous findings. Introduction of intervening convictions at resentencing does not afford the prosecution with more than one opportunity to introduce such evidence, nor does it require the defendant to litigate an issue which he legitimately could have considered to be closed. Moreover, a sentencing judge’s initial finding that the defendant has not been convicted of another felony — unlike a finding with respect to other sorts of aggravating circumstances— bears little resemblance to an acquittal. A finding with respect to heinousness, for example, would normally require consideration of a number of factual matters that would have to be inferred from the record or from testimony. Disproving a charge of heinousness might prove difficult and onerous for a defendant, just as disproving guilt at trial would be. But a finding as to a prior conviction is different in nature from a finding as to heinousness: a prior conviction is generally a matter of public record, and usually requires little factual inquiry.

Under the standards set out in Buffing-ton, I do not believe that a finding as to the non-existence of other convictions can be deemed an acquittal, at least with respect to other convictions rendered after the initial sentencing hearing but before resentencing. I am persuaded, however, that findings as to other sorts of aggravating circumstances, with factual predicates that are not a matter of official public record, do constitute “acquittals” for double jeopardy purposes. Because it appears possible that some of the appellants may have been sentenced in reliance on, or may now be forced to defend against, new findings of aggravating circumstances of the latter type, I would remand to the district court the cases of those appellants who have been resentenced subsequent to Watson for a determination whether the procedures by which they have been or are being resentenced violate the double jeopardy clause.

. In particular, the Supreme Court noted that under the Missouri arrangement the sentence was imposed by a jury that was confined to two choices — life imprisonment or death — and was guided in its choice by articulated standards. The Court emphasized that the jury could not impose the harsher penalty unless the prosecution met “the burden of establishing certain facts beyond a reasonable doubt,” and observed that the structure of the hearing strongly resembled that of a trial. 451 U.S. at 438 & n.10, 101 S.Ct. at 1857-58 & n.10, 68 L.Ed.2d at 278 -79 & n.10.

. The four dissenting Justices in Bullington agreed that the crucial question for double jeopardy purposes was whether the sentencing determination was sufficiently akin to an acquittal. However, the dissenters contended that a life sentence in the Missouri proceeding did not constitute an implicit acquittal of any charge, and would have held the double jeopardy clause inapplicable because resentencing did not expose the defendant to a renewed “possibility of error as to guilt or innocence.” 451 U.S. at 451 , 101 S.Ct. at 1864-65, 68 L.Ed.2d at 285-87 (Powell, J., dissenting).

. Section 454(C) provided:

To decide that these findings, in effect, constitute acquittals, therefore, we would not be limited to the inferences one could draw from any similarity between the Arizona sentencing procedure and a trial. The explicitly factual nature of the findings present much stronger evidence of their import than does the inferential evidence on which the Bullington court was required to rely. Nevertheless, the Arizona death sentencing scheme is quite similar to the Missouri procedure in the respects emphasized in Bullington . Although in Arizona the sentence is rendered by a judge rather than a jury, the judge is limited in a number of crucial respects. In particular, the sentencing judge may find an aggravating circumstance to be present only if the circumstance has been shown beyond reasonable doubt to have existed. State v. Jordan, 126 Ariz. 283 , 614 P.2d 825 (1980). The judge imposes the sentence only after a hearing at which evidence may be submitted by both the prosecution and the defense, and “the admissibility of information relevant to any of the aggravating circumstances ... shall be governed by the rules governing the admission of evidence at criminal trial.” Ariz.Rev.Stat. § 13-902(C). Although we do not face here a challenge to a death sentence imposed in place of an initial life sentence, it would appear that in such a case a life sentence imposed under the Arizona procedure, like a life sentence imposed under the Missouri scheme, might well constitute an implicit acquittal of the requisites for a death sentence even in the absence of the express factual findings involved in this case.

. In affirming Jordan’s sentence, the Arizona Supreme Court disregarded the additional findings of aggravating circumstances, noting that no mitigating circumstances had been found and that the presence of at least one aggravating circumstance other than those newly found was sufficient under the statute to call for imposition of the death penalty. State v. Jordan, 126 Ariz. 283 , 614 P.2d 825 (1980).

. The majority suggests that such a bar would constitute “collateral estoppel,” and that if invoked must, under the concept of mutuality, bind the defendant as well as the prosecution to any unfavorable factual findings that were not tainted by the defects requiring resentencing. At 1264 n.10. But the concept of mutuality would not appear to apply in this sort of “collateral estoppel.” This is so because double jeopardy is a constitutional doctrine that provides the defendant with protections not afforded the prosecution — one of the ways in which “[i]n the administration of criminal justice, our society imposes almost the entire risk of error upon itself,” Addington v. Texas, 441 U.S. 418, 423-24 , 99 S.Ct. 1804, 1808 , 60 L.Ed.2d 323 (1979).