OPINION
HANSON, Justice.
Appellant Dena Lyn Hankerson filed a petition for postconviction relief challenging her aggravated sentence because it was based on judicial fact finding in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The postconviction court denied Hankerson’s request to vacate her sentence and impose the presumptive guideline sentence, but ordered a sentencing hearing in which it proposed to impanel a sentencing jury to resentence Hankerson under the authority of the 2005 legislative amendments to Minn.Stat. § 244.10, subd. 5(a). Hankerson argues that the court is not authorized to use a sentencing jury because, although the amendments to section 244.10 retrospectively authorize the use of a sentencing jury, the 2005 amend[234]*234ments to Minn. Sent. Guidelines II.D do not retrospectively authorize the court to impose an aggravated sentence based on the jury’s findings. She also argues that, if the amendments effectively authorize the retrospective use of a sentencing jury, they are invalid because they violate the Double Jeopardy and Ex Post Facto Clauses of the United States Constitution. We affirm.
Following a jury trial Hankerson was convicted of, among other crimes, first-degree criminal sexual conduct. The conviction arose out of a burglary and the sexual assault of a 12-year-old girl who was babysitting two young children. After a brief sentencing hearing, the court sentenced Hankerson to 264 months in prison, a 120-month upward departure from the 144-month presumptive sentence. The court explained:
There are substantial and compelling circumstances justifying an upward departure. [The victim] was 12 years old, baby-sitting, and was particularly vulnerable. You used particular cruelty. You struck her on both sides of the face. You threatened to kill her. You threatened to kill the children in her charge. The crime involved multiple acts of penetration perpetrated against her, you forced her to penetrate you. And you used threats and coercion. That’s not an element of the crime but that’s how you pulled it off.
The court also imposed separate sentences for the burglary and terroristic threats convictions. The court of appeals affirmed, but reversed the terroristic threats sentence because it arose out of the same behavioral incident as the sexual assault. State v. Hankerson, No. A03-131, 2004 WL 771304, at *3 (Minn.App. April 13, 2004). On June 15, 2004, we denied review.
On June 24, 2004, the United States Supreme Court decided Blakely v. Washington. In Blakely the Court invalidated the defendant’s aggravated sentence imposed under the Washington Sentencing Guidelines — which are substantially similar to the Minnesota Sentencing Guidelines— because it violated the Sixth Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Blakely, 542 U.S. at 303-05, 124 S.Ct. 2531. In Apprendi the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. The Blakely Court clarified that “the ‘statutory maximum’ for Appren-di purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531.1
On June 2, 2005, the legislature responded to Blakely by amending section 244.10, subd. 5(a), and Minn. Sent. Guidelines II.D to provide for sentencing juries and bifurcated trials. Act of June 2, 2005, ch. 136, art. 16, §§ 3-6, 14, 2005 Minn. Laws 901, 1115-16, 1119. After the amendment, section 244.10, subd. 5(a), reads as follows:
When the prosecutor provides reasonable notice under subdivision 4, the district court shall allow the state to prove [235]*235beyond a reasonable doubt to a jury of 12 members the factors in support of the state’s request for an aggravated departure from the Sentencing Guidelines as provided in paragraph (b) or (c) [addressing when the proceeding is to be unitary or bifurcated].
MinmStat. § 244.10, subd. 5(a) (Supp. 2005). These amendments apply “to sentencing hearings, resentencing hearings, and sentencing departures sought on or after” the effective date of the act. Sections 3-6, 2005 Minn. Laws at 1115-16. As amended, Minn. Sent. Guidelines II.D provides:
The sentence ranges provided in the Sentencing Guidelines Grid are presumed to be appropriate for the crimes to which they apply. Thus, the judge shall pronounce a sentence within the applicable range unless there exist identifiable, substantial, and compelling circumstances to support a sentence outside the range on the grid. A sentence outside the applicable range on the grid is a departure from the sentencing guidelines and is not controlled by the guidelines, but rather, is an exercise of judicial discretion constrained by case law and appellate review. However, in exercising the discretion to depart from a presumptive sentence, the judge must disclose in writing or on the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence.
Furthermore, if an aggravated dura-tional departure is to be considered, the judge must afford the accused an opportunity to have a jury trial on the additional facts that support the departure and to have the facts proved beyond a reasonable doubt. If the departure facts are proved beyond a reasonable doubt, the judge may exercise the discretion to depart from the presumptive sentence.
The amendments to Minn. Sent. Guidelines II.D were made effective on “the day following final enactment.” Section 14, 2005 Minn. Laws at 1119.
On August 18, 2005, we decided State v. Shattuck, holding that, under Blakely, “Minnesota Sentencing Guidelines II.D is unconstitutional insofar as it permits an upward durational departure based on judicial findings.” State v. Shattuck, 704 N.W.2d 131, 143 (Minn.2005). We initially remanded for imposition of the guideline sentence but later modified the remand language for “resentencing consistent with this opinion,” while recognizing the possibility of using the 2005 sentencing amendments. Id. at 148 & n. 17. We noted that we were not expressing an opinion on the constitutionality of these amendments. Id. at 148 n. 17.
Hankerson filed her petition for postcon-viction relief on August 15, 2005, arguing that Blakely required imposition of the presumptive sentence under the Guidelines because it was the maximum sentence authorized by the jury’s verdict. The post-conviction court denied Hankerson’s request but scheduled a “resentencing jury trial.” Hankerson filed an appeal to the court of appeals but we granted accelerated review on the issue that we left open in Shattuck: the effect and constitutionality of the 2005 amendments to Minn.Stat. § 244.10, subd. 5(a), and Minn. Sent. Guidelines II.D. Shattuck, 704 N.W.2d at 148 n. 17.
I.
Hankerson first argues that the 2005 amendments do not retrospectively apply to her case. Hankerson suggests that section 244.10 only addresses the identity of the fact finder, whereas Minn. Sent. Guidelines II.D is the critical provi[236]*236sion that authorizes a district court to impose an aggravated sentence based on the findings of the fact finder. Hankerson argues that although the revisions to section 244.10, contain retroactivity language making them applicable to “resentencing,” the amendments to Minn. Sent. Guidelines II.D do not and, therefore, the authority to use a sentencing jury to impose an aggravated sentence only applies to convictions entered after the act’s effective date. In other words, Hankerson argues that although the 2005 legislation authorizes the retrospective use of sentencing juries, a court is without power to actually use the jury’s findings for her conviction, which was entered before the act’s effective date, because the amendments to Minn. Sent. Guidelines II.D were not made retrospectively applicable to that conviction.
The state argues that even if the former version of Minn. Sent. Guidelines II.D is controlling, it should be construed to authorize a district court to use the jury’s findings to impose an aggravated sentence. The version of Minn. Sent. Guidelines II.D that existed when Hankerson’s conviction was entered provided:
The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case. The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law. * * * When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.
Minn. Sent. Guidelines II.D (2004).
We agree with the arguments of the state. Nothing in the former language of Minn. Sent. Guidelines II.D prohibits a court from imposing a sentence based on facts found by a jury. It requires the “judge” to provide written reasons for the departure, but this could be based on facts found either by the judge or by a jury.2 When read together, the 2005 amendments to section 244.10, subd. 5(a), and the former version of Minn. Sent. Guidelines II.D authorize a district court to impanel a sentencing jury on resentencing of a conviction obtained before the act’s effective date and to use the jury’s findings to impose a new sentence, including, where appropriate, an aggravated sentence.
II.
We now turn to Hankerson’s double jeopardy arguments. The Double Jeopardy Clause of the United States Constitution provides that “[n]o person shall * * * be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V.3 The Clause protects criminal defendants from “three dis-[237]*237tinet abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.” State v. Humes, 581 N.W.2d 317, 320 (Minn.1998).
Hankerson focuses only on the second type of double jeopardy abuse, arguing that a resentencing hearing would effectively amount to a reprosecution of the greater offense of criminal sexual conduct with aggravating factors, when she has already been convicted of the lesser offense of criminal sexual conduct. To support her view that criminal sexual conduct with aggravating factors is the “same offense” as criminal sexual conduct without aggravating factors, Hankerson relies on language from Apprendi where the Supreme Court characterized a sentencing factor as the “functional equivalent of an element.” 530 U.S. at 494 n. 19, 120 S.Ct. 2348. The Court said:
The term [“sentencing factor”] appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense. On the other hand, when the term “sentence enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an “element” of the offense.
Id. Hankerson then relies on Sattazahn v. Pennsylvania for the application of the “functional equivalent of an element” language from Apprendi to the double jeopardy context:
We can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendment’s jury-trial guarantee and what constitutes an “offense” for purposes of the Fifth Amendment’s Double Jeopardy Clause.
Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (plurality opinion); see also Washington v. Recuenco, — U.S. ——, 126 S.Ct. 2546, 2552, 165 L.Ed.2d 466 (2006).
But we need not decide whether the aggravating factors alleged here — victim vulnerability, particular cruelty, multiple acts, and use of threats and coercion— are elements of the greater offense of criminal sexual conduct with aggravating factors or whether that greater offense is the “same offense,” for double jeopardy purposes, as criminal sexual conduct without aggravating factors. We conclude that Hankerson’s double jeopardy argument fails for a different reason: the failure to show that the proposed resentencing hearing would be a “second prosecution.”
Under the double jeopardy test formulated in Sattazahn, a “second prosecution” can occur only after jeopardy from the first prosecution has terminated. See 537 U.S. at 106, 123 S.Ct. 732. As the Court recognized in Sattazahn, jeopardy does not terminate unless the fact finder affirmatively rejects the existence of aggravating factors in a manner that can fairly be called an “acquittal” on those factors. See id. at 107-09, 123 S.Ct. 732. In fact, the Court in Sattazahn held that the imposition by the jury of the death penalty in a second trial, after the jury had deadlocked on the factors necessary to support the death penalty in the first trial, did not violate double jeopardy because the retrial was not a “second prosecution” for the same offense. Id. at 104-06, 116, 123 S.Ct. 732. The Court said:
Where, as here, a defendant is convicted of murder and sentenced to life impris[238]*238onment, but appeals the conviction and succeeds in having it set aside, we have held that jeopardy has not terminated, so that the life sentence imposed in connection with the initial conviction raises no double-jeopardy bar to a death sentence on retrial.
Id. at 106, 123 S.Ct. 732 (citing Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919)).
Perhaps even more to the point is the Supreme Court’s decision in Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). In Lockhart, the defendant had received an enhanced sentence as a result of the jury’s verdict that the defendant had four prior felony convictions. Id. at 35-36, 109 S.Ct. 285. The sentence was affirmed on appeal by the Arkansas Court of Appeals, rejecting the defendant’s argument that one of the prior convictions had been pardoned because the defendant had failed to object to the use of that conviction. Id. at 36 & n. 4, 109 S.Ct. 285. When the defendant sought a writ of habeas corpus in the federal district court, an investigation confirmed that one conviction had been pardoned. Id. at 37, 109 S.Ct. 285. The district court declared Lockhart’s sentence invalid and determined that the Double Jeopardy Clause prevented the state from attempting to resentence the defendant by substituting another conviction for the pardoned conviction. Id. The Supreme Court reversed, holding:
Permitting retrial in this instance is not the sort of governmental oppression at which the Double Jeopardy Clause is aimed; rather, it serves the interest of the defendant by affording him an opportunity to obtai[n] a fair adjudication of his guilt free from error.
Id. at 42, 109 S.Ct. 285 (quotations omitted).
To arrive at this conclusion, the Court first reviewed settled law that “the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside.” Id. at 38, 109 S.Ct. 285. The Court next observed that this rule applies when the conviction was set aside by “collateral attack.” Id., see United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) (stating that “[i]t would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceeding! ]”). The Court recognized that the only exception to this rule is where the conviction is reversed on the ground that the evidence was insufficient to sustain the jury’s verdict because such a reversal is “in effect a determination that the government’s case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the case to the jury.” Id. at 39, 109 S.Ct. 285 (citing Burks v. United States, 437 U.S. 1, 16-17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). The Court then applied the same rule to the reversal of Lockhart’s sentence, allowing the state to resentence him by substituting proof of another prior conviction in place of the pardoned conviction. Id. at 40-42, 109 S.Ct. 285.
Applying the reasoning of Sattazahn and Lockhart here, if the state in the first trial had not sought an aggravated sentence or if the district court had “acquitted” Hankerson of the aggravating factors, double jeopardy might prevent the retrial of those factors to a sentencing jury on resentencing. Or, if the state had presented insufficient evidence to support the district court’s adoption of the aggravating factors in the first trial, the Burks exception might likewise preclude any consider[239]*239ation of these aggravating factors on re-sentencing. But the state did seek an aggravated sentence in the first trial. And the district court did determine, in the first sentencing hearing, that the aggravating factors had been proven by the state. There is no claim that the evidence was insufficient to prove these factors. Although the district court’s findings on the aggravating factors was not expressly made “beyond a reasonable doubt,” the standard of proof now required by Blakely, it could not be said that a court’s adoption of the aggravating factors under a lesser standard of proof is equivalent to an “acquittal” on those factors for double jeopardy purposes.
The dissent suggests that the rationale of Sattazahn, requiring an acquittal before jeopardy terminates, does not apply here because, whereas Sattazahn’s conviction was reversed on appeal, Hankerson’s conviction was affirmed on appeal. But this difference is not material to the analysis, for several reasons.
First, the dissent suggests that jeopardy terminated when we denied Hankerson’s petition for further review on June 15, 2004. But Hankerson’s conviction and sentence did not become final at that time because the time to petition the United States Supreme Court for certiorari had not expired. And that time still had not expired on June 24, 2004, when Blakely was issued. If it had, Hankerson would not be entitled to the benefit of Blakely. See e.g., Houston, 702 N.W.2d at 270 (holding that Blakely “must be applied to all cases pending on direct review”).
Second, Hankerson’s postconviction petition asks the court to vacate her sentence. Absent that relief, Hankerson’s original sentence stands.4 Because it is Hankerson who requests the vacation of the sentence, she can hardly complain that she is still in jeopardy — -her options are to accept the original sentence or face resentencing if the original sentence is vacated at her request. See, e.g., Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) (holding that jeopardy is not terminated where a conviction is reversed on appeal by the defendant); Tateo, 377 U.S. at 466, 84 S.Ct. 1587 (stating that it is well-established that reprosecution following reversal of a conviction on appeal does not violate double jeopardy).
Third, the dissent does not discuss Lock-hart, which essentially applies the same rationale as Sattazahn to the resentencing of a defendant whose sentence, but not his conviction, was reversed on collateral review. See Lockhart, 488 U.S. at 37, 42, 109 S.Ct. 285. As in Lockhart, the resen-tencing of Hankerson will occur as a result of her successful challenge to her original sentence on collateral review. Such resen-tencing is not oppressive but is intended to serve Hankerson’s interest in obtaining a constitutional determination of her sentence.
Our conclusion is consistent with the decisions of other state courts. The Arizona Supreme Court addressed this issue in a slightly different, but sufficiently analogous, context. In Ring v. Arizona (Ring I), the United States Supreme Court held that the imposition of the death penalty based on aggravating factors found by an Arizona trial judge sitting without a jury violated Apprendi, and the Court remanded “for further proceedings not inconsistent with [the] opinion.” Ring I, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 [240]*240(2002). In response to Ring I, the Arizona Legislature amended the death penalty statute to provide for a jury determination of aggravating factors and made this change applicable “to any sentencing or resentencing proceeding on any first degree murder case that is held after the effective date of this act.” Act of Aug. 1, 2002, ch. 1, sec. 1, §§ 13-703(E), 13-703.01(C), (R)(l), sec. 7(A), 2002 Ariz. Sess. Laws 5th Spec. Sess. 2155, 2157-58, 2160, 2163. On remand from Ring I, the defendants in all pending death sentence appeals argued to the Arizona Supreme Court that, because the death penalty statute in existence at the time of their sentences was unconstitutional, death as a punishment conceptually did not exist. State v. Ring (Ring II), 204 Ariz. 534, 65 P.3d 915, 925, 929 (2003). “Therefore, they argue[d], a resentencing proceeding under the new sentencing statutes would expose them to a more severe penalty than was originally available and thus constitutes double jeopardy.” Id. at 929.
The Ring II court stressed that the true issue was whether the defendant had been “acquitted” of aggravating factors in the first proceeding. Id. at 930. The court recognized that “[t]he Supreme Court has thoroughly treated and established the legal principle” that the concern for a second prosecution after an acquittal is only implicated where the second sentence exceeds the first sentence imposed. Id. at 930-31. Because the trial court had imposed a death sentence in the first trial, albeit pursuant to an unconstitutional statute, the imposition of the death penalty in the second trial did not exceed the first sentence imposed. Id. at 931.
The Oregon Supreme Court also addressed this issue in a case involving analogous facts. In State v. Sawatzky, 339 Or. 689, 125 P.3d 722, 723 (2005), the defendant pleaded guilty to multiple crimes and the trial court, acting without a jury, imposed a sentence beyond the presumptive range based on a finding of “substantial and compelling reasons justifying a deviation.” When this sentence was reversed on appeal as violative of Blakely, the trial court announced its intention to impanel a sentencing jury for resentencing on remand. Id. In affirming this decision, the Oregon Supreme Court held:
[I]n this case, relator is not entitled to former or double jeopardy protection. This is not a second prosecution. Rather, it is a sentencing proceeding on remand — a continuation of a single prosecution. See State v. Montez, 309 Or. 564, 604, 789 P.2d 1352[, 1378] (1990) (“A penalty phase hearing is merely a continuation of the same trial and not a separate or collateral proceeding threatening a new or different sanction”). Because it is relator who challenged the legality of her sentences in the Court of Appeals, she cannot now claim that she had any justifiable expectation of finality — a fundamental jeopardy requirement — with respect to her sentences.
Id. at 726.
We find the reasoning of the Oregon and Arizona courts persuasive and hold that the use of a sentencing jury to consider aggravating factors in Hanker-son’s resentencing hearing does not violate the Double Jeopardy Clause.5 Consistent [241]*241with the recognition in Ring II that the second sentence cannot exceed the first, we acknowledge that in Minnesota, as a matter of judicial policy, a court cannot “impose on a defendant who has secured a new trial a sentence more onerous than the one he initially received.” State v. Holmes, 281 Minn. 294, 296, 161 N.W.2d 650, 652 (1968). Thus, on resentencing, the state cannot seek and the court cannot impose a sentence in excess of 264 months.
III.
The Ex Post Facto Clause of the United States Constitution provides that “[n]o State shall * * * pass any * * * ex post facto Law.”6 U.S. Const, art. I, § 10. “To fall within the ex post facto prohibition, a law must be [1] retrospective — that is, ‘it must apply to events occurring before its enactment’ — and [2] it ‘must disadvantage the offender affected by it.’ ” Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). Having already concluded that the 2005 amendments to section 244.10, subd. 5(a), are retrospective, the only issue is whether they work to Hankerson’s disadvantage.
There are three ways a law can work to a defendant’s disadvantage: (1) by punishing “ ‘as a crime an act previously committed, which was innocent when done,’ ” (2) by making “ ‘more burdensome the punishment for a crime, after its commission,’ ” or (3) by depriving “ ‘one charged with crime of any defense available according to law at the time when the act was committed.’ ” Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Hankerson argues that the 2005 amendments to section 244.10 represent the first type of ex post facto law because they add elements to a substantive offense after its commission. She also argues that the 2005 amendments represent the second type of ex post facto law because they allow the statutory maximum punishment (i.e., the presumptive sentence) to be retrospectively increased.
The state argues that it is not necessary to determine whether the 2005 amendments work to Hankerson’s disadvantage because they are procedural in nature, not substantive. The Supreme Court has held that even if a retrospective law works to a defendant’s disadvantage, it does not violate the Ex Post Facto Clause if it is procedural. See Dobbert v. Florida, 432 U.S. 282, 292-93, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Beazell, 269 U.S. at 169-71, 46 S.Ct. 68; Mallett v. North Carolina, 181 U.S. 589, 597, 21 S.Ct. 730, 45 L.Ed. 1015 (1901).
In Dobbert the defendant was convicted of murder and the court sentenced him to death despite the jury’s recommendation of mercy, a power the legislature granted to the court after the defendant committed the offense. 432 U.S. at 287-88, 97 S.Ct. 2290. The defendant argued that the statute as applied to him was unconstitutional [242]*242under the Ex Post Facto Clause because the version of the death penalty statute at the time he committed the offense did not allow a judge to overrule the jury’s recommendation of mercy. Id. at 292, 97 S.Ct. 2290. The Supreme Court rejected this argument, holding that changing the roles of the judge and jury was only procedural, and a procedural change is not an ex post facto law. Id. at 293-94, 97 S.Ct. 2290.
In Collins v. Youngblood, the Supreme Court harmonized its prior ex post facto cases based in part on this procedural law exception. The Collins Court held that while “[t]he right to jury trial provided by the Sixth Amendment is obviously a ‘substantial’ one, * * * it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause.” 497 U.S. at 51, 110 S.Ct. 2715.
Collins and Dobbert make clear that a change affecting the identity of the fact finder is procedural and thus is not burdened by ex post facto restrictions. The effect of the 2005 amendments to section 244.10 was to change the roles of the judge and jury. This is a procedural change that did not add aggravating factors, eliminate elements of aggravating factors, or increase the duration of the sentence authorized by a finding of aggravating factors. Both at the time Hankerson committed the offense and after the 2005 amendments to section 244.10, first-degree criminal sexual conduct with aggravating factors was punishable as a crime and carried with it the possibility of a 264 month sentence. The amendments only changed the procedure used to establish the aggravating factors. In Ring II, the Arizona Supreme Court adopted similar reasoning:
[E]x post facto principles generally do not bar applying procedural changes to criminal proceedings, [and] the general framework of a state’s statutory capital sentencing scheme is procedural in nature. As Collins established, rights secured by the Sixth Amendment jury trial right, the right at issue here, are inherently procedural. Under the holding of Dobbert, Arizona’s change in the statutory method for imposing capital punishment is clearly procedural: The new sentencing statutes alter the method used to determine whether the death penalty will be imposed but make no change to the punishment attached to first degree murder. The new sentencing statutes added no new element, or functional equivalent of an element, to first degree murder. Hence, the changes to the state’s capital sentencing procedures do not resemble the type of after-the-fact legislative evil contemplated by contemporary understandings of the ex post facto doctrine.
65 P.3d at 928 (citations and footnote omitted).7
Even if the 2005 amendments did not fall under this procedural law exception, they are not prohibited as ex post facto laws because they do not work to Hankerson’s disadvantage. “It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” Dobbert, 432 U.S. at 294, 97 S.Ct. 2290; see also Lynce, 519 U.S. at 441, 117 S.Ct. 891. The 2005 sentencing amendments inure to Hankerson’s advantage because they afford her a new sentencing hearing where the quantum of the proof will be higher. They vindicate, not violate, Han-kerson’s constitutional rights. We find [243]*243persuasive the reasoning of the Oregon Supreme Court in rejecting a similar challenge to an almost identical statutory change:
In our view, SB 528 changes only the method for determining the available punishment; it does not, however, increase that punishment. To the extent that SB 528 changes the quantum of proof required under the sentencing guidelines, it inures to defendant’s advantage to require the state to prove any enhancing factors beyond a reasonable doubt. For a statute to violate state or federal ex post facto clauses, the statute must at least effect some kind of disadvantageous change upon a defendant. We conclude that SB 528 does not disadvantage defendant in any manner that violates the ex post facto clauses of either the federal or state constitutions.
State v. Upton, 339 Or. 673, 125 P.3d 713, 719 (2005) (citation omitted).
Hankerson’s focus on the “functional equivalent of an element of a greater offense” language from Apprendi is also unavailing. Hankerson essentially argues that because a jury determination of the aggravating factors was not available in her first sentencing hearing, the aggravating factors did not exist as offense elements. The Supreme Court rejected a similar argument in Dobbert. See 432 U.S. at 297, 97 S.Ct. 2290.
The defendant in Dobbert argued that there was no death penalty “in effect” when he committed the offense because the death penalty statute was declared unconstitutional and thus subjecting him to a new death penalty statute, enacted after the invalidation of the former, would violate the Ex Post Facto Clause. Id. The Court rejected this argument:
Petitioner’s highly technical argument is at odds with the statement of this Court in Chicot County Dist. v. Baxter State Bank, 308 U.S. 371, 374 [60 S.Ct. 317, 84 L.Ed. 329] (1940):
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. 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.
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.
Id. at 297-98, 97 S.Ct. 2290 (citations omitted).
At the time of Hankerson’s criminal act, Minn. Sent. Guidelines II.D identified the same aggravating factors and provided the same potential penalty as is now contained in the 2005 amendments to Minn. Sent. Guidelines II.D. This puts Hankerson on notice that the conduct she was about to engage in was illegal, and that it carried a potential punishment of 264 months in prison. This notice satisfied the Ex Post Facto Clause.
In summary, the retrospective application of the 2005 amendments to section 244.10, subd. 5(a), is not prohibited as an ex post facto law because the change was procedural, it inured to Hankerson’s advantage, and Hankerson was on notice of the criminality of her conduct and its po[244]*244tential punishment. The change to allow for juries on resentencing “does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed.” Collins, 497 U.S. at 52, 110 S.Ct. 2715.
Affirmed.
GILDEA, J., took no part in the consideration or decision of this case.