concur in results.
¶ 1 I join Judge Chapel’s separate vote concurring in the remand of this case to the District Court of Creek County for a trial to determine if the Appellant is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and Murphy v. State, 2002 OK CR 32, 54 P.3d 556. I agree with Judge Chapel that the State of Oklahoma has granted certain process which is due a criminal defendant when vacation of a sentence requires a remand for resentencing pursuant to 22 O.S. 2001, § 929 or 21 O.S.2001, § 701.10a. I do not find either of these statutory provisions to be in conflict with 22 O.S.2001, § 1066, which grants this Court the authority to “reverse, affirm or modify the judgment or sentence appealed from and may, if necessary or proper, to order a new trial or resentencing.” However, the Court’s predetermination in this case that “if the jurors determine Lambert is mentally retarded, ... the trial court will resentence Lambert to life imprisonment without parole” disregards these statutory rights and the status of the case at the present time.
¶2 This Court currently has jurisdiction of this case in a pending subsequent application for post-conviction relief. This Court is remanding the case to the district court while that appeal is pending for the limited purpose of holding a trial to determine if Appellant is mentally retarded. Because the subsequent post-conviction application is pending in this Court and the remand is for determining if Appellant is mentally retarded, the district court is without jurisdiction to resentence Appellant until and unless, after the trial on mental retardation, this Court in its decision on the pending appeal orders the case remanded for resentencing pursuant to either 22 O.S.2001, § 929 or 21 O.S.2001, § 701.10a. However, upon review of the record and verdict from the trial on mental retardation, this Court would be empowered pursuant to 22 O.S.2001, § 1066, to either modify the sentence or remand for re-sentencing in the district court.
¶ 3 While the Court’s direction in this order is the model of efficiency in directing the district court to sentence Appellant to life imprisonment without parole if the trier of fact finds him to be mentally retarded, it denies the Appellant certain statutory rights. Granted, if the Appellant were remanded for *34a resentencing trial he would not be able to put on mitigating evidence and the State would not be able to present aggravating evidence if a jury trial were demanded. However, if the Appellant elected to be re-sentenced by a judge, he would have the opportunity to put on mitigating evidence. See Malone v. State, 2002 OK CR 34, 58 P.3d 208, 209; Cooper v. State, 1995 OK CR 22, 894 P.2d 420, 422; McCormick v. State, 1993 OK CR 6, 845 P.2d 896, 902-3. Those are rights granted by statute if the district court is going to be the resentencing venue on remand. Before the district court is empowered to act, this Court must first decide after review of that trial record, pursuant to 22 O.S.2001 1066, whether to reverse, affirm or modify the judgment or sentence and whether to remand to the district court for resen-tencing. Therefore, I cannot agree with the extralegal directive of the order for the district court to resentence the Appellant to life imprisonment without parole if he is found to be mentally retarded.