concurring in result.
In the days preceding the decision of the U.S. Supreme Court in Bullington v. Missouri, (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, I would have agreed with the reasoning in the majority opinion that the Double Jeopardy Clause of the Fifth Amendment was written to protect the citizen against double prosecutions and not double sentencings. That case proclaimed that double jeopardy protection also applied to bar double sentencing phases in which the jury is required by state law to sit as a trier of fact, and procedures are employed which produce “the hallmarks of the trial on guilt or innocence.” Bullington v. Missouri, supra. The procedures required by the Indiana habitual criminal statute to be employed at a jury hearing to determine past convictions produce those hallmarks. While I agree that this case must go back for a new sentencing hearing, I do so in the belief that there will thereby be no denial of the protection afforded by the Fifth Amendment.