842
Rehnquist, C. J., dissenting
just whether the law changed. Rather, it is when the law changed. The Florida Supreme Court has not answered this question; instead, it appeared to assume that merely labeling L. B. as the "culmination" in the common pocket-knife exception's "century-long evolutionary process" was sufficient to resolve the Fiore question. 833 So. 2d, at 745. It is not. Without further clarification from the Florida Supreme Court as to the content of the common pocketknife exception in 1989, we cannot know whether L. B. correctly stated the common pocketknife exception at the time he was convicted.
On remand, the Florida Supreme Court should consider whether, in light of the L. B. decision, Bunkley's pocketknife of 21/2 to 3 inches fit within § 790.001(13)'s "common pocket-knife" exception at the time his conviction became final. The judgment of the Supreme Court of Florida, accordingly, is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Chief Justice Rehnquist, with whom Justice Kennedy and Justice Thomas join, dissenting.
The Court here makes new law, and does so without briefing or argument. In Fiore v. White, 528 U. S. 23, 29 (1999), we granted certiorari to answer whether due process requires a state court to apply a judicially announced change in state criminal law retroactively. We realized after granting certiorari, however, that we could not answer that question until we knew whether there had been a change in the law at all. We therefore certified a question to the Pennsylvania Supreme Court asking whether its decision in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112 (1993), was a change in the law from the time of the defendant's conviction. When the Pennsylvania Supreme Court answered that there had been no change, we acknowledged that there was no question of retroactivity left for
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