COOPER, Justice.
Herman and Mae Matthews were shot to death in their home on May 6, 1981. In 1982, a Barren Circuit Court jury convicted Appellant, David Leroy Skaggs, of their murders, as well as of robbery and burglary, and he was sentenced to death. The convictions and sentences were affirmed by this Court on direct appeal in Skaggs v. Commonwealth, 694 S.W.2d 672 (Ky.1985), cert. denied, Skaggs v. Kentucky, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678 (1986). His subsequent Criminal Rule (RCr) 11.42 motion was denied, and that denial was also affirmed on appeal. Skaggs v. Commonwealth, 803 S.W.2d 573 (Ky.1990), cert. denied, Skaggs v. Ken[53] tucky, 502 U.S. 844, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991).
In 1994, Appellant filed a motion for a new trial, asserting that he was mentally retarded and therefore ineligible for the death penalty pursuant to KRS 532.130, et seq., specifically, KRS 532.140(1). That motion was denied, and the denial was affirmed on appeal in an unpublished opinion. Skaggs v. Commonwealth, No. 94-SC-393-MR (Ky.1995), cert. denied, 516 U.S. 856, 116 S.Ct. 158, 133 L.Ed.2d 102 (1995). The reason for the denial was that the statutory scheme in question was enacted effective July 13, 1990,1 and KRS 532.140(3) states that its provisions “shall apply only to trials commenced after July 13,1990.”
Meanwhile, Appellant filed a petition for a writ of habeas corpus that was subsequently denied by the federal district court. Skaggs v. Parker, 27 F.Supp.2d 952 (W.D.Ky.1998). However, the United States Court of Appeals for the Sixth Circuit reversed the denial of the petition because the expert witness who purported to testify to Appellant’s mental deficiencies was subsequently determined to be a fraud, and his testimony during the guilt phase of the trial was so “bizarre and eccentric” that it was ineffective assistance of counsel to recall him to provide additional, mitigating evidence during the penalty phase of the trial. Skaggs v. Parker, 235 F.3d 261, 269 (6th Cir.2000), cert. denied, Parker v. Skaggs, 534 U.S. 943, 122 S.Ct. 322, 151 L.Ed.2d 241 (2001). The case was remanded to the district court “with instructions to issue a writ of habeas corpus vacating Skaggs’s death sentence unless the Commonwealth conducts a new penalty proceeding within 180 days of remand.” Id. at 275.
The new penalty phase trial was conducted April 2-17, 2002, and Appellant was again sentenced to death. He again appeals to this Court claiming, inter alia, that the trial court erred in not conducting a hearing prior to retrial to determine if he was mentally retarded and, therefore, ineligible for the death penalty.
The retrial was conducted prior to the United States Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that imposition of the death penalty against a mentally retarded offender violates the Eighth Amendment’s proscription against cruel and unusual punishment, id. at 321, 122 S.Ct. at 2252, and prior to our recent decision in Bowling v. Commonwealth, 163 S.W.3d 361 (Ky.2005), defining the procedures for the implementation of Atkins in Kentucky. In Bowling, we held that Atkins was retroactive to any condemned mentally retarded offender tried prior to the effective date of KRS 532.130, et seq. 163 S.W.3d at 371. Because the defendant in Bowling was tried after the effective date of the exemption statutes and had not raised the mental retardation issue at trial, he was held to have procedurally defaulted the issue. Id. at 371-72.
Appellant’s original trial was held prior to the effective date of the exemption statutes; thus, he could not have procedurally defaulted the mental retardation issue. Furthermore, the retrial of the penalty phase pursuant to the Sixth Circuit’s mandate was a trial “commenced after July 13, 1990,” thus triggering the provisions of KRS 532.130, et'seq. We reject the Commonwealth’s theory that the retrial was simply a continuation of the original trial commenced in 1982. See, e.g., Varble v. Commonwealth, 125 S.W.3d 246, 252 (Ky.2004) (“However, because the [54] error pertains only to sentencing, it does not require a new guilt-phase trial under Count II for possession of a controlled substance in the first degree, but only that a new sentencing phase trial be held on that conviction.”); Hayes v. Commonwealth, 698 S.W.2d 827, 828 (Ky.1985) (“At the PFO phase of the original trial there was a mistrial. Before the retrial of the PFO phase commenced the prosecutor acknowledged that the Commonwealth was required to elect between the .receiving stolen property convictions and theft convictions for the same property.”) (emphasis added). The mental retardation issue pertains only to the penalty issue, thus should have been resolved prior to the commencement of the new penalty phase trial.
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COOPER, Justice.
Herman and Mae Matthews were shot to death in their home on May 6, 1981. In 1982, a Barren Circuit Court jury convicted Appellant, David Leroy Skaggs, of their murders, as well as of robbery and burglary, and he was sentenced to death. The convictions and sentences were affirmed by this Court on direct appeal in Skaggs v. Commonwealth, 694 S.W.2d 672 (Ky.1985), cert. denied, Skaggs v. Kentucky, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678 (1986). His subsequent Criminal Rule (RCr) 11.42 motion was denied, and that denial was also affirmed on appeal. Skaggs v. Commonwealth, 803 S.W.2d 573 (Ky.1990), cert. denied, Skaggs v. Ken[53] tucky, 502 U.S. 844, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991).
In 1994, Appellant filed a motion for a new trial, asserting that he was mentally retarded and therefore ineligible for the death penalty pursuant to KRS 532.130, et seq., specifically, KRS 532.140(1). That motion was denied, and the denial was affirmed on appeal in an unpublished opinion. Skaggs v. Commonwealth, No. 94-SC-393-MR (Ky.1995), cert. denied, 516 U.S. 856, 116 S.Ct. 158, 133 L.Ed.2d 102 (1995). The reason for the denial was that the statutory scheme in question was enacted effective July 13, 1990,1 and KRS 532.140(3) states that its provisions “shall apply only to trials commenced after July 13,1990.”
Meanwhile, Appellant filed a petition for a writ of habeas corpus that was subsequently denied by the federal district court. Skaggs v. Parker, 27 F.Supp.2d 952 (W.D.Ky.1998). However, the United States Court of Appeals for the Sixth Circuit reversed the denial of the petition because the expert witness who purported to testify to Appellant’s mental deficiencies was subsequently determined to be a fraud, and his testimony during the guilt phase of the trial was so “bizarre and eccentric” that it was ineffective assistance of counsel to recall him to provide additional, mitigating evidence during the penalty phase of the trial. Skaggs v. Parker, 235 F.3d 261, 269 (6th Cir.2000), cert. denied, Parker v. Skaggs, 534 U.S. 943, 122 S.Ct. 322, 151 L.Ed.2d 241 (2001). The case was remanded to the district court “with instructions to issue a writ of habeas corpus vacating Skaggs’s death sentence unless the Commonwealth conducts a new penalty proceeding within 180 days of remand.” Id. at 275.
The new penalty phase trial was conducted April 2-17, 2002, and Appellant was again sentenced to death. He again appeals to this Court claiming, inter alia, that the trial court erred in not conducting a hearing prior to retrial to determine if he was mentally retarded and, therefore, ineligible for the death penalty.
The retrial was conducted prior to the United States Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that imposition of the death penalty against a mentally retarded offender violates the Eighth Amendment’s proscription against cruel and unusual punishment, id. at 321, 122 S.Ct. at 2252, and prior to our recent decision in Bowling v. Commonwealth, 163 S.W.3d 361 (Ky.2005), defining the procedures for the implementation of Atkins in Kentucky. In Bowling, we held that Atkins was retroactive to any condemned mentally retarded offender tried prior to the effective date of KRS 532.130, et seq. 163 S.W.3d at 371. Because the defendant in Bowling was tried after the effective date of the exemption statutes and had not raised the mental retardation issue at trial, he was held to have procedurally defaulted the issue. Id. at 371-72.
Appellant’s original trial was held prior to the effective date of the exemption statutes; thus, he could not have procedurally defaulted the mental retardation issue. Furthermore, the retrial of the penalty phase pursuant to the Sixth Circuit’s mandate was a trial “commenced after July 13, 1990,” thus triggering the provisions of KRS 532.130, et'seq. We reject the Commonwealth’s theory that the retrial was simply a continuation of the original trial commenced in 1982. See, e.g., Varble v. Commonwealth, 125 S.W.3d 246, 252 (Ky.2004) (“However, because the [54] error pertains only to sentencing, it does not require a new guilt-phase trial under Count II for possession of a controlled substance in the first degree, but only that a new sentencing phase trial be held on that conviction.”); Hayes v. Commonwealth, 698 S.W.2d 827, 828 (Ky.1985) (“At the PFO phase of the original trial there was a mistrial. Before the retrial of the PFO phase commenced the prosecutor acknowledged that the Commonwealth was required to elect between the .receiving stolen property convictions and theft convictions for the same property.”) (emphasis added). The mental retardation issue pertains only to the penalty issue, thus should have been resolved prior to the commencement of the new penalty phase trial.
Because the trial court overruled Appellant’s motion for an evidentiary hearing on whether he was entitled to the mental retardation exemption, the issue becomes whether Appellant has produced “some evidence creating a doubt as to whether he is mentally retarded,” so as to entitle him to an evidentiary hearing. Bowling, 163 S.W.3d at 384. Charles G. Yonts, a certified clinical psychologist, opined at trial that Appellant was mentally retarded. He tested Appellant in 1991 and determined that Appellant’s intelligence quotient (I.Q.) was 73, which is above the maximum of 70 required by KRS 532.130 to prove the “significant subaverage intellectual functioning” criterion for mental retardation. However, he also testified that Appellant’s school records indicated that Appellant’s I.Q. was measured at 64 on an unspecified date. Dr. Stephen Free testified for the prosecution that his testing measured Appellant’s I.Q. at 65, but that he believed Appellant was malingering during the test and that Appellant was not mentally retarded. While the evidence was insufficient to entitle Appellant to a directed verdict on the issue, as he claims on appeal, it was sufficient to entitle Appellant to an evidentiary hearing and a determination of the issue by the trial court. Compare Bowling, 163 S.W.3d at 384, where the lowest I.Q. measurement in the record was 79.
The situation here is similar to what occurred in Thompson v. Commonwealth, 56 S.W.3d 406 (Ky.2001), in which the trial court ordered the defendant to be evaluated for competency but then failed to make a competency determination before accepting the defendant’s guilty plea. Instead of reversing the case for a new trial, we remanded it to the trial court with directions (1) to determine whether it was possible to accurately conduct a retrospective competency hearing in that case; and (2) if so, to retrospectively determine whether the defendant was competent at the time he entered his plea; or (3) if not, to conduct a competency hearing and hold a new trial if the defendant was found to be presently competent. If the retrospective competency hearing was possible and the defendant was found to have been competent at the time he entered his plea, the trial court “shall make findings of fact in support of this conclusion in its order ....” Either party was allowed to appeal from an adverse ruling on the issue. Id. at 410. Application of this procedure to the issue of mental retardation is easier because mental retardation is generally a “permanent, relatively static condition” once the person reaches adulthood and it would be “rare for the condition to recede during the interim between the offense and the execution.” Bowling, 163 S.W.3d at 377.
Accordingly, we remand this case to the trial court with directions to hold an evi-dentiary hearing within 120 days from the rendition of this opinion and, pursuant to the guidelines established in Bowling, enter findings of fact and conclusions of law [55] supporting a determination of whether Appellant is mentally retarded. If the trial court determines that Appellant is mentally retarded, it shall order a new penalty phase trial at which death shall be excluded as a possible penalty. The Commonwealth shall have the right to appeal such a determination. Commonwealth v. Bailey, 71 S.W.3d 73, 79-80 (Ky.2002). If the trial court determines that Appellant is not mentally retarded, Appellant shall have the right to appeal that determination. Briefing on the matter shall be limited to ten pages by each side and, like the hearing on remand, shall be limited to only those issues addressed in this opinion. The Barren Circuit Court shall notify this Court of its final disposition of this matter within ten (10) days of the entry of its final order. In either event, the appeal will be consolidated with the present appeal, which will be abated pending the resolution of this issue (approximately two-thirds of the remaining thirty issues on appeal are claims of trial error which may not recur in the event of a retrial, or are related solely to the issue of capital punishment).
LAMBERT, C.J.; GRAVES, JOHNSTONE, ROACH, and SCOTT, JJ„ concur.
WINTERSHEIMER, J., dissents by separate opinion.