both current and future death-row inmates to choose the means by which death is to be administered, either lethal gas or lethal injection. By the time Fierro reached the United States Supreme Court, the statute was already in effect. As a result, the United States Supreme Court vacated the judgment in Fierro and remanded the ease back to the Ninth Circuit for further consideration in’ light of section 3604. Gomez v. Fierro, — U.S. -, 117 S.Ct. 285, 136 L.Ed.2d 204 (1996). Thus, the United States Supreme Court has impliedly approved the course of action taken by the California Legislature. Perhaps Florida’s Legislature should consider a similar course of action. OVERTON, J., concurs. 5 . See, e.g., Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947) (<HOLDING>); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct.
holding that a cruel and unusual punishment claim is not jurisdictional and therefore may not be raised for the first time on appeal holding execution of the mentally retarded constitutes cruel and unusual punishment in violation of the eighth amendment holding that defendants claim that execution by electrocution or lethal injection constitutes cruel and unusual punishment is meritless holding cruel and unusual punishment complaint not preserved holding that the carrying out of an execution after the first execution attempt had failed did not amount to cruel and unusual punishment