dissenting.
I respectfully dissent.
When - applying - Ind.Code - 835-8-8-1,1 [hereinafter referred to as the previous habitual offender statute], which is applicable here, our supreme court has "consistently held that proof of a third felony conviction is surplusage under the requirements of the habitual offender statute." Harmer v. State (1983), Ind., 455 N.E.2d 1139, 1141, citing Jessup v. State (1971), 256 Ind. 409, 269 N.E.2d 374 (defect in proof on habitual count charging defendant with having been previously convicted of burglary was moot, when defendant was shown to have been convicted of two other crimes apart from burglary conviction, proof of a third prior crime and conviction being mere surplus-age under habitual criminal statute); see also Eldridge v. State (1986), Ind., 498 N.E.2d 12; Collins v. State (1981), 275 Ind. 86, 415 N.E.2d 46, cert. denied 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851; Hall v. State (1980), 273 Ind. 507, 405 N.E.2d 530; Hanks v. State (1948), 225 Ind. 593, 76 N.E.2d 702.
So, I must disagree with the majority's position in this case that the State's failure to prove the commission date of Weather-ford's third felony requires reversal. Our supreme court has vacated such convictions only in those cases which have applied the requirements set forth in Ind.Code 85-50-2-8, the current habitual statute. See Waye v. State (1991), Ind., 583 N.E.2d 733; Fozzard v. State (1988), Ind., 518 N.E.2d 789; Steelman v. State (1985), Ind., 486 N.E.2d 523.
In Beavers v. State (1990), Ind., 550 N.E.2d 305 [hereinafter referred to as Beavers I], the State presented evidence of three prior felony convictions, sentences, and incarcerations which were used as underlying offenses to support the defendant's habitual offender status. Beavers claimed that the evidence was insufficient because the State failed to show that sue ceeding felonies were committed after the sentence on the prior felony and that the sentence on a subsequent felony was rendered before the next felony was committed. In rejecting this argument, Justice Givan, in writing for the majority, determined that: '
"To support his position, appellant cites Steelman v. State (1985), Ind., 486 N.E.2d 523. However, Steelman was decided under Ind.Code § 85-50-2-8, which in fact sets out the requirements now argued by appellant. However, appellant was sentenced under the prior statute, Ind.Code § 385-8-8-1, which has no such requirement. That statute only requires that appellant be previously twice convicted and previously twice incarcerated for felonies in order to establish that he has the status of a habitual offender."
Beavers I, supra at 306-07 (emphasis supplied).
Beavers petitioned for rehearing, Beavers v. State (1991), Ind., 566 N.E.2d 533, [hereinafter referred to as Beavers II], arguing that Beavers I conflicted with Cooper v. State (1972), 259 Ind. 107, 284 N.E.2d 799, which determined that the previous habitual offender statute required that the "commission of the second prior *23felony be subsequent to imprisonment for the first prior felony, and that the commission of the felony for which sentence enhancement is being sought be subsequent to imprisonment for the second prior felony." - Beavers II, supra at 584 (emphasis supplied).
In affirming Beavers' convictions on rehearing, our supreme court acknowledged that Cooper applied and determined that the State sufficiently established that a felony committed in 1972 occurred after imprisonment of a prior felony that the State used to prove the defendant's habit- ' ual offender eligibility.
As in Beavers I and II, the record before us demonstrates that two of the felony convictions relied upon by the state to support Weatherford's status as an habitual offender were sufficiently proven in accordance with the requirements of Cooper and the previous habitual offender statute. This is the latest supreme court pronouncement on this subject, and the facts here are indistinguishable from those presented in Beavers I and II Any evidence pertaining to the firearms charge is irrelevant, and proof relating to the commission of that offense is mere surplusage. See Collins, supra; Hall, supra; Jessup, supra.
I would therefore affirm the judgment in all respects.
. Prior to codification, this statute was designated as Burns 9-2207 [Acts 1907 ch. S1, p. 109].
2. IC 35-50-2-8(b), which became effective on October 1, 1977, currently provides in relevant part that:
"After a person has been convicted and sentenced for a felony committed after sentencing for a prior unrelated felony conviction, the person has accumulated two (2) prior unrelated felony convictions...."