proceeding - Construction of section. A. Upon any appeal of a conviction by the defendant in a noncapital criminal case, the appellate court, if it finds prejudicial error in the sentencing proceeding only, may set aside the sentence rendered and remand the case to the trial court in the jurisdiction in which the defendant was originally sentenced for resentencing. No error in the sentencing proceeding shall result in the reversal of the conviction in a criminal case unless the error directly affected the determination of guilt. B. When a criminal case is remanded for vacation of a sentence, the court shall: 1. Set the case for a nonjury sentencing proceeding; or 2. If the defendant was originally sentenced by a jury, impanel a new sentencing jury unless jury resentencing is waived by the defendant and the prosecutor. C. The defendant may affirmatively waive resentencing before the appropriate trial court within ninety (90) days of the appellate court order remanding for resentencing; provided, however, the defendant may not waive resentencing after the commencement of the resentencing hearing or trial. The defendant may not waive resentencing on an appeal or petition for a writ of extraordinary relief sought by the prosecution or if the original sentence was unlawful. If the defendant affirmatively waives resentencing pursuant to this subsection, the original sentence shall be reinstated by the trial court. A sentence reinstated pursuant to this subsection shall not be appealable by the defendant. D. 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. The defendant may testify at his or her resentencing proceeding in accordance with the requirements of the Oklahoma Evidence Code. Additional relevant evidence may be admitted including testimony of witnesses who testified at the previous trial. E. This section shall not be construed to amend or be in conflict with the provisions of Section 701.10 or 701.10a of Title 21 of the Oklahoma Statutes relating to sentencing and resentencing in death penalty cases; Section 860.1 of this title relating to the trial procedure for defendants prosecuted for second or subsequent offense; or the provisions of Sections 926.1 and 927.1 of this title relating to assessment of punishment in the original trial proceedings. Added by Laws 1990, c. 261, § 1, emerg. eff. May 24, 1990. Amended by Laws 1997, c. 133, § 18, eff. July 1, 1999; Laws 1999, 1st Ex.Sess., c. 5, § 9, eff. July 1, 1999; Laws 2023, c. 205, § 1, eff. Nov. 1, 2023.
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