¶1MOTION FOR REHEARING DENIED
¶2SUPPLEMENTAL OPINION
¶3This is a motion for rehearing of a previous decision and opinion of this court. See State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). Defendant contends in this motion that we did not properly dispose of his allegation that he received ineffective assistance of counsel at the trial, that the Arizona death penalty statute is unconstitutional because of lack of jury participation in sentencing and because an improper burden of persuasion is placed upon the defendant, and that we misconstrued his arguments concerning his prior conviction. These matters were briefed, argued, and disposed of in the prior opinion and we do not feel it is necessary to consider them again.
¶4Two other questions were also raised in this motion for rehearing. Because these matters were neither briefed nor argued prior to our opinion of 20 July 1978, we considered the motions and memoranda of the parties and granted defendant’s motion for oral argument. The questions are:
1. Is the death penalty statute in Arizona severable?
2. Does the reimposition of the death penalty under the procedures newly devised after Watson’s trial and sentencing violate the
(a) double jeopardy and
(b) ex post facto
provisions of the United States and Arizona Constitutions?
¶5The facts necessary for a determination of this matter on appeal are as follows. Defendant was convicted in a jury trial of murder in the first degree, A.R.S. §§ 13-451, 452; armed burglary and burglary, A.R.S. § 13-302; robbery, §§ 13-641, 643; theft of a motor vehicle, A.R.S. § 13-672; and obstructing justice, A.R.S. § 13-541. Defendant was sentenced to death on the murder count; concurrent 99 years to life sentences on the armed burglary, armed robbery, and robbery counts; fourteen to fifteen years on the count of burglary; and time served on the theft of a motor vehicle and obstructing justice counts.
¶6Defendant appealed raising numerous questions and this court affirmed the convictions, State v. Watson, 114 Ariz. 1, 559 P.2d 121 (1976), but vacated the death sentence and remanded the matter to the trial court for resentencing.
¶7Defendant was resentenced to death and defendant again appealed. This court, in State v. Watson, 120 Ariz. 441, 586 P.2d *4521253 (1978), following the United States Supreme Court cases of Lockett v. Ohio, - U.S. -, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Bell v. Ohio,-U.S.-, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), held that the restriction in the showing of mitigating circumstances in the sentencing provisions of our death penalty statute, Section (D) of 13-454, was unconstitutional We stated:
“Section F of A.R.S. § 13-454 is exclusive in that pursuant to Section D of A.R.S. § 13-454, the court may consider as mitigating circumstances only those contained therein. It is apparent that this restriction on the use of mitigating circumstances does not now pass constitutional muster. We hold that A.R.S. § 13-454(F), insofar as it limits the right of the defendant to show additional mitigating circumstances, is unconstitutional.” 120 Ariz. at 444, 586 P.2d at 1256.
¶8We then held that the statute remained in full force and effect and that only the portion limiting the factors in mitigation should be set aside. The matter was then remanded for resentencing pursuant to the opinion which allowed the defendant the right to present any mitigating factors he wished to present at the resentencing. From this opinion defendant filed the instant motion for rehearing.
¶9SEVERABILITY OF THE STATUTE
¶10Defendant first contends that the statute, A.R.S. § 13—454, cannot be severed because the “legislature neither intended a capital sentencing procedure without mitigating factors, nor is the statute workable without it.”
¶11We agree that the statute would not be constitutional without the provision allowing the defendant to present mitigating factors. We also agree that the legislature did intend that the defendant be allowed to present mitigating factors. What the legislature did, however, was to limit the number of mitigating factors that could be presented by the defendant and it was this limitation that we held was unconstitutional under Lockettand Bell, supra. The statute, with the addition of the amount of mitigating factors that may be presented, is still a workable statute even though shorn of its unconstitutional limitations.
¶12But defendant also contends that two questions must be answered before an unconstitutional statute may be severed from the remainder and the remainder allowed to remain in force and effect. First, it must be apparent that the legislature intended severability, and second, the invalid portion must be sufficiently independent from that which remains to permit the latter to function separately.
¶13We believe defendant has misread the law and our opinion in this matter. The only way a court can be sure that the legislature intended severability is by the existence of a severability clause in the statute itself. When that is the case, there is no question that severability is intended. It is only when the statute is silent as to severability that a problem arises. In those cases:
“If the objectionable parts of a statute are severable from the rest in such a way that the legislature would be presumed to have enacted them independently, the failure of the latter will not necessarily render the other parts of the statute invalid. … ” State ex rel. Berger v. Superior Court, 106 Ariz. 365, 370, 476 P.2d 666, 671 (1970).
¶14The general rule in Arizona is:
“ … if part of an act is unconstitutional and by eliminating the unconstitutional portion the balance of the act is workable, only that part which is objectionable will be eliminated and the balance left intact, (citations omitted)” State v. Coursey, 71 Ariz. 227, 236, 225 P.2d 713, 719 (1950).
¶15This is in accord with the general rule concerning unconstitutional portions of a statute:
“A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments *453void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional.” Cooley, Constitutional Limitations, Vol. 1 at page 360 (8th ed., Little & Brown Co.).
¶16We believe there is sufficient evidence in the legislative history of the enactment of this statute as well as the statute itself from which it is apparent that had the legislature anticipated that the legislation on mitigating factors would be found unconstitutional they would still have enacted the rest of the statute. Indeed, there is more than ample indication that the legislature intended a death penalty statute and were prepared to write one that complied with the United States constitutional guidelines. That they faltered in one portion of the statute is hardly the fault of the legislature considering the lack of direction given by a series of confusing and indecisive opinions of the United States Supreme Court. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). We find the severability was proper in this case.
¶17Defendant finally points to Chapter 138, Laws of 1973, Section 10. This provision is not contained in the bound volumes of the Arizona Revised Statutes. It is, however, a part of the legislation passed in 1973. The provision reads:
“In the event the death penalty is held to be unconstitutional on final appeal, a person convicted of first degree murder or another offense punishable by death who has been sentenced to die shall be resen-tenced by the sentencing court to life imprisonment without possibility of parole until the person has served a minimum of twenty-five, calendar years.” Sec. 10, Ch. 138, Laws 1973.
¶18Defendant contends that since we have found the death penalty unconstitutional, we therefore must sentence the defendant to twenty-five years. We do not agree.
¶19We did not find the death penalty to be unconstitutional. We held only that in determining the death penalty there are certain factors which, if presented by the defendant, the court must consider. The statute, as severed, is valid.
¶20CONSTITUTIONALITY OF THE IMPOSITION OF THE DEATH PENALTY
¶21a. Double jeopardy
¶22Defendant next contends that remanding the case for new sentencing violates his Fifth and Fourteenth Amendment privilege against being placed twice in jeopardy. There is no doubt that the double jeopardy clause applies to sentencing as well as conviction, Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1873), and defendant cites several cases, two from California, People v. Harvey, 76 Cal.App.3d 441, 142 Cal.Rptr. 887 (1978) and People v. Payne, 75 Cal.App.3d 601, 142 Cal.Rptr. 320 (1977), as well as the South Carolina case of State v. Rodgers, 242 S.E.2d 215 (S.C.1978) in support of his position. All three of these cases are distinguishable. In each of those cases, the defendants, after having been sentenced to death, had their sentences reduced to life imprisonment. After they had commenced to serve the life sentences, the state sought to have them resentenced under legislation enacted after the crime and the reversal. Thus, after the life sentences were at least partially served, the state attempted to subject them to another different and higher punishment. The California court said in Harvey, supra, that when a new death penalty statute was enacted in August of 1977 and the state sought to have the case returned to the trial court for resentencing under the valid 1977 statute, it was double jeopardy. We agree with the California court, but these cases are clearly distinguishable and do not apply to the case at bar. The defendant in the instant case never served his sentence (of death). His death sentence was not reduced to life imprisonment but was merely set aside pending resentencing. We find no violation of the double jeopardy clause in the instant case. See also North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
¶23b. Ex post facto law
¶24Defendant also contends that this court’s action is improper because it is an ex post facto law. We believe that the United States Supreme Court has disposed of this matter as follows:
*454“Petitioner’s second ex post facto claim is based on the contention that at the time he murdered his children there was no death penalty ‘in effect’ in Florida. This is so, he contends, because the earlier statute enacted by the legislature was, after the time he acted, found by the Supreme Court of Florida to be invalid under our decision in Furman v. Georgia, supra. Therefore, argues petitioner, there was no ‘valid’ death penalty in effect in Florida as of the date of his actions. But this sophistic argument mocks the substance of the ex post facto clause. … The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder
“Petitioner’s highly technical argument is at odds with the statement of this Court in Chicot County Drainage District v. Bank, 308 U.S. 371, 375, 60 S.Ct. 317, 319, 84 L.Ed. 329:
‘The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree, (citations omitted) It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored.’ 308 U.S., at 374, 84 L.Ed. 329, 60 S.Ct. 317.
“Here the existence of the statute served as an ‘operative fact’ to warn the petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder. This was sufficient compliance with the ex post facto provision of the United States Constitution.” Dobbert v. Florida, 432 U.S. 282, 297-98, 97 S.Ct. 2290, 2300, 53 L.Ed.2d 344, 358-59 (1977).
¶25In the instant case, we are only concerned with a procedural change and one which increases the rights of the defendant in death penalty cases. We do not believe there is an ex post facto problem. We find no error.
¶26DUE PROCESS AND CRUEL AND UNUSUAL PUNISHMENT
¶27Defendant also contends in the motion for rehearing that there was a violation of due process and of the cruel and unusual punishment provisions of the United States Constitution. Defendant did not pursue this position in his brief, cited no authority in support of his contention and we found none. We find no error.
¶28Motion for rehearing denied.