dissenting.
In view of our previous decision in Jones v. State (1991), Ind.App., 569 N.E.2d 975, I cannot agree with the majority holding. We concluded in Jones that the Savings Clause was intended to apply when all of the felonies relied upon for sentencing a person as an habitual offender were committed before September 1, 1985. “All” means both the prior convictions relied upon as well as the underlying felony conviction being enhanced. See Moredock v. State (1987), Ind., 514 N.E.2d 1247 (“all” used in Ind.Code 35-50-2-8(h) includes underlying felonies in addition to enhancing felonies). Therefore, because Johnson’s underlying felony was committed after September 1, 1985, he was prosecuted under the wrong habitual offender statute.1 Jones, supra.
The majority position that Jones’ construction of the Savings Clause would render it a nullity is not accurate. Relied on by the majority is Parsley v. State (1980), 273 Ind. 46, 401 N.E.2d 1360, cert. denied 449 U.S. 862, 101 S.Ct. 166, 66 L.Ed.2d 79 for the proposition that, when applying criminal statutes, the law in effect at the time the crime is committed is applied. But that ease dealt with a defendant who was convicted of inflicting injury during the commission of a robbery alleged to have occurred on September 17, 1970. The defendant was convicted sometime before the Supreme Court affirmed his conviction in Parsley v. State (1973), 261 Ind. 106, 300 N.E.2d 652. The defendant was sentenced to life imprisonment under the laws in effect at the time the crime was committed and he was tried and sentenced. Four years after the Supreme Court had affirmed his conviction, in 1977, the legislature amended the criminal code, recodified the offense of which the defendant was convicted, and set a new penalty limit of 50 years. The defendant argued that the new limit should apply to him, and the Supreme Court rejected that argument.
The rule of law is different when an ameliorative penalty statute is enacted between the time a defendant commits a crime and is sentenced for that crime. This court’s opinion in Maynard v. State (1977), 174 Ind.App. 202, 367 N.E.2d 5, concluded that a statute that lessens the penalty of a crime should be applied to persons who committed the crime before the statute was enacted, but who were not sentenced until after the statute was enacted. The Supreme Court expressly adopted this rule concerning the application of ameliorative statutes in Lewandowski v. State (1979), 271 Ind. 4, 389 N.E.2d 706. See also Holsclaw v. State (1979), 270 Ind. 256, 384 N.E.2d 1026 (“exception to the general rule is recognized where the penalty is decreased by a statute enacted after the commission of the crime but prior to the *1356defendant's trial and sentencing.” Id. at 261, 384 N.E.2d at 1030).
It seems apparent, then, rather than rendering the Savings Clause a nullity, the construction of the Savings Clause in Jones, supra effectuates the legislature’s intent to avoid the ameliorative sentencing doctrine which would have been applied if the Savings Clause had not been enacted. The application of the ameliorative sentencing doctrine was precisely the argument rejected by the Supreme Court when it invoked the Savings Clause in Hensley v. State (1986), Ind., 497 N.E.2d 1053. If the Savings Clause was not intended to avoid the ameliorative sentencing doctrine, then the Supreme Court would not have needed to invoke it in Hensley. The Court could have simply applied “the law in effect at the time the crime [was] committed,” Majority opinion at 1354, in order to conclude Hensley was properly sentenced under the Habitual Offender Statute. The Supreme Court’s construction of the Savings Clause in Hensley demonstrated the intent of the legislature when it enacted the Savings Clause, and that opinion is entirely consistent with the analysis of Jones, supra.
There can be no doubt that the amendment of the Habitual Offender Statute and the enactment of the D Felony Statute was an ameliorative reduction of the penalty imposed on habitual offenders. As was observed in Jones, the D Felony and Habitual Offender Statutes are mutually exclusive, and the D Felony Statute allows for a lesser enhancement of a defendant’s sentence if he habitually commits only class D felonies. The Supreme Court, in Hensley, also characterized the D Felony Statute as ameliorative.
In Jones, we looked to the Supreme Court’s construction of the word “all” in an identically worded passage of the Habitual Offender Statute. In Moredock, supra, the Supreme Court concluded that “all the felonies relied upon for sentencing,” as that phrase is used in section (h) of the Habitual Offender Statute, included the underlying felony being enhanced as well as the prior enhancing felonies. Following the general principle of construction that when phrases are used at one place in a statute, they will be given the same meaning when used at another place in the statute, we concluded in Jones the Savings Clause was applicable only to those defendants with underlying crimes committed prior to the effective date of the amendments.
The reasoning for the Supreme Court’s decision in Moredock is that being an habitual offender is not a crime, it is a status. A defendant is not eligible to be classified as an habitual offender until a conviction for the commission of an underlying crime has been obtained. The Supreme court has repeatedly stated that defendants cannot be given an additional sentence for being an habitual offender, only that their sentence for the underlying crime can be enhanced due to their habitual offender status. See Gilliam v. State (1986), Ind., 494 N.E.2d 319; Richardson v. State (1985), Ind., 481 N.E.2d 1310; Yager v. State (1982), Ind., 437 N.E.2d 454. The underlying felony conviction must be relied upon for sentencing under the Habitual Offender Statute because a defendant cannot be sentenced based solely on the fact he has two prior felony convictions. He can only be sentenced on the underlying felony, and have that sentence enhanced due to his status as an habitual offender.
The construction the majority gives to the Savings Clause is also inconsistent with the legislature’s clear intention to weigh older felony convictions less heavily than more recent convictions. Section (e) of the Habitual Offender Statute provides, in pertinent part:
“If the court finds that ten (10) years or more have elapsed between the date the person was discharged from probation, imprisonment or parole (whichever is later) for the last prior unrelated felony conviction and the date the person committed the felony for which the person is being sentenced as an habitual offender, then the court may subtract up to twen*1357ty-five (25) years from the additional fixed term of thirty (30) years.”
The majority construction of the Savings Clause would weigh older convictions more heavily than more recent convictions because it would impose the harsher penalties of the prior version of the Habitual Offender Statute only on defendants with convictions for crimes committed prior to the enactment of the amendments. Also, the above portion of the Habitual Offender Statute clearly refers to the underlying felony conviction as a conviction relied upon for sentencing under the statute.
Applying the construction of the Savings Clause used in Jones, it is manifest that Johnson should have been sentenced under the D Felony Statute.2 Johnson’s underlying class D felony conviction was committed in April, 1990. This was the conviction for which he was being sentenced, and his sentence for that conviction was enhanced due to his status as an habitual offender. The Savings Clause applies only if all of the felonies relied upon for sentencing were committed prior to September, 1, 1985. As the primary felony being relied upon to sentence Johnson was committed after September 1, 1985, the Savings Clause is inapplicable and Johnson should have been sentenced pursuant to the present habitual offender statutory scheme.
Section (h) of the present Habitual Offender Statute provides that a defendant may not be sentenced under the Habitual Offender Statute if all of the felonies relied upon for sentencing are class D felonies. Johnson’s prior felonies were both class D felonies, as was his underlying conviction. Therefore Johnson cannot be sentenced under the Habitual Offender Statute. As all of Johnson’s convictions are class D felonies, sentencing under the D Felony Statute would be appropriate.
Jones, supra, was correctly decided. Rather than rendering the Savings Clause a nullity, the construction in Jones effectuates the obvious intent of the legislature when it sought to avoid the ameliorative sentencing doctrine that would have been applied had the Savings Clause not been enacted. The construction in Jones is entirely consistent with the provisions of both the Habitual Offender Statute and the D Felony Statute as well as the Supreme Court’s decisions in Hensley and More-dock.
. Hereinafter IC 35-50-2-8 will be referred to as the Habitual Offender Statute and IC 35-50-2-7.1 will be referred to as the D Felony Statute.
. It is unfortunate that Johnson was properly determined to be an habitual class D felony offender under the D Felony Statute, but that determination was reversed by this court in another proceeding. That mistake can be corrected, however, and it does not alter our duty to correctly apply the laws our legislature has enacted.