Singing Loudly

For all of you 1Ls studying for your criminal law examination, I have a simple question to make you feel better.

My home town of Wichita, KS has decided to not to seek the death penalty in the re-sentencing of convicted rapist and murderer, Stanley Elms.

A quick procedural history background for this case is necessary. Elms raped and slashed the throat of his victim which caused her death. This was enough for a jury to convict and sentenced him of capital murder in 1999 under the Kansas Penal Code. Soon after this decision the Kansas Supreme Court, in another case, decided that the state death penalty sentencing scheme was unconstitutional, which cleared the sentencing of Elms.

In most states that have the death sentence there are bifurcated trials where the jury first decides whether the defendant is guilty and then a second trial determines if the jury is going to impose the death penalty.

Kansas is now going to re-sentence Elms. They have decided not to seek the death penalty, but they will hold another trial to determine which sentence will be given. Why is this not double jeopardy?