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§21-701.10a.
§21-701.10a.
Notwithstanding subsection A of Section 701.10 of this title, which
requires that the same jury sit in the sentencing phase of a capital
murder trial, the following shall apply:
1. Upon any appeal by the defendant where the sentence is of death,
the appellate court, if it finds prejudicial error in the sentencing
proceeding only, may set aside the sentence of death and remand the
case to the trial court in the jurisdiction in which the defendant was
originally sentenced. No error in the sentencing proceeding shall
result in the reversal of the conviction for a capital felony. When a
capital case is remanded after vacation of a death sentence, the
prosecutor may:
a. move the trial court to impose any sentence authorized by law at
the time of the commission of the crime, which the trial court shall
impose after a non-jury sentencing proceeding, provided, the original
sentencing proceeding was conducted before the court or the original
sentencing proceeding was conducted before a jury and both the
defendant and the state waive jury sentencing after remand; or
b. move the trial court to impanel a new sentencing jury who shall
determine the sentence of the defendant, which may be any sentence
authorized by law at the time of the commission of the crime,
provided, the original sentencing proceeding was conducted before a
jury;
2. If the prosecutor elects to utilize the procedure provided in
paragraph b of subsection 1 of this section, the trial court shall
impanel a new jury for the purpose of conducting new sentencing
proceedings;
3. Resentencing proceedings shall be governed by the provisions of
Sections 701.10, 701.11 and 701.12 of this title;
4. All exhibits and a transcript of all testimony and other evidence
properly admitted in the prior trial and sentencing shall be
admissible in the new sentencing proceeding; additional relevant
evidence may be admitted including testimony of witnesses who
testified at the previous trial;
5. The provisions of this section are procedural and shall apply
retroactively to any defendant sentenced to death;
6. This section shall not be construed to amend the provisions of
Section 701.10 of this title, requiring the same jury to sit in both
the guilt and sentencing phases of the original trial.
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