Section 5-4-616 - Procedures following remand or mistrial of capital case after vacation of death sentence - Retroactive applicationNotwithstanding § 5-4-602(3) that requires that the same jury sit in the sentencing phase of a capital felony trial, the following shall apply:
(1)(A) Upon any appeal by the defendant when the sentence is of death, if the appellate court finds prejudicial error in the sentencing proceeding only, the appellate court 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.(B) No error in the sentencing proceeding shall result in the reversal of the conviction for a capital felony.(C) When a capital case is remanded after vacation of a death sentence, the prosecuting attorney may move the trial court to:(i) Impose a sentence of life without parole, and the trial court may impose the sentence of life without parole without a hearing; or(ii) Impanel a new sentencing jury;(2)(A) Upon the declaration of a mistrial during the sentencing proceeding, the prosecuting attorney may move the trial court to:(i) Impose a sentence of life without parole, and the trial court may impose the sentence of life without parole without a hearing; or(ii) Impanel a new sentencing jury.(B) A mistrial during the sentencing proceeding shall not result in the invalidation of the finding of guilt for a capital felony;(3) If the prosecuting attorney elects subdivision (1)(C)(ii) or subdivision (2)(A)(ii) of this section the trial court shall impanel a new jury for the purpose of conducting a new sentencing proceeding;(4) A new sentencing proceeding is governed by the provisions of § 5-4-602(4) and (5) and §§ 5-4-603 - 5-4-605;(5)(A) Any exhibit and a transcript of any testimony or other evidence properly admitted in the prior trial or preceding guilt phase of the trial and sentencing is admissible in the new sentencing proceeding.(B) Additional relevant evidence may be admitted including testimony of a witness who testified at the previous trial or preceding guilt phase of the trial and sentencing; and(6) The provisions of this section: (B) Apply retroactively to any defendant sentenced to death after January 1, 1974.Amended by Act 2021, No. 695,§ 2, eff. 7/28/2021.Acts 1983, No. 546, § 1; A.S.A. 1947, § 41-1358.