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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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