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.
Laws 1989, c. 365, § 3, emerg. eff. June 3, 1989; Laws 1993, c. 325, § 12, emerg. eff. June 7, 1993.
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