concurring. I believe that the state’s appeal of the judgment of acquittal in favor of the defendant is barred by the double jeopardy clause of the fifth amendment to the United States constitution. The majority concludes that the defendant waived his right not to be placed in double jeopardy by failing to raise this defense at an earlier stage of the proceedings. This presents a difficult issue on which we have found no cases directly on point. I respectfully disagree with the majority in this conclusion.
Here, this court itself raised the issue of double jeopardy at oral argument and requested that the parties file supplemental briefs on the issue. The defendant then filed a motion to dismiss the state’s appeal. Implicit in the’ majority’s opinion is the proposition that the defendant should have realized he had a double jeopardy defense and, therefore, his failure to raise the defense earlier constituted a waiver of that right. I do not believe that such inaction, perhaps based upon inadvertence or inattention, would constitute a valid waiver of such an important right at this stage of the proceedings. “ ‘Waiver’ is a vague term used for a great variety of purposes, good and bad, in the law. In any normal sense, however, it connotes some kind of voluntary knowing relinquishment of a right.” Green v. United States, 355 U.S. 184, 191, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), citing Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).
There is a statement in State v. Price, 208 Conn. 387, 390-91, 544 A.2d 184 (1988), that the United States *341Supreme Court implied in United States v. Dinitz, 424 U.S. 600, 609-10 n.11, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976), that a waiver of a double jeopardy defense does not require the knowing, intelligent and voluntary standard of Johnson v. Zerbst, supra, 304 U.S. 458. That implication, however, is restricted in Dinitz to the case where there may be a second trial of a defendant following the granting of a motion for a mistrial or the reversal of a conviction on appeal. United States v. Dinitz, supra, 609-10 n.11. Those circumstances do not apply in this case.1
What is clear is that, in this case, as soon as the defendant was questioned about his right under the double jeopardy clause, he sought to exercise it. I cannot find a waiver by the defendant under these circumstances. This is particularly so because we have not previously decided whether a retrial of a defendant under the persistent felony offender statute; General Statutes § 53a-40 (d); would be barred by the defendant’s previous acquittal.
In State v. Jones, 166 Conn. 620, 630, 353 A.2d 764 (1974), this court concluded that the defendant had waived the defense of double jeopardy by not raising it at his second trial on the same charges. “Instead [the defendant] proceeded to trial, verdict and judgment without raising such a claim.” Id. This case does not help us resolve the defendant’s motion to dismiss. Here, the defendant cannot yet have waived a defense that he is entitled to raise at the start of a second trial, which is when he would actually undergo double jeopardy. “The protections afforded by the [c] lause are implicated *342only when the accused has actually been placed in jeopardy. . . . This state of jeopardy attaches when a jury is empaneled and sworn or, in a bench trial, when the judge begins to receive evidence.” (Citation omitted.) United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977).
As the United States Supreme Court explained: “When a successful postacquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy Clause, the appeal itself has no proper purpose. Allowing such an appeal would frustrate the interest of the accused in having an end to the proceedings against him.” (Emphasis added.) Smalis v. Pennsylvania, 476 U.S. 140, 145, 106 S. Ct. 1745, 90 L. Ed. 2d 116 (1986); State v. Daniels, 207 Conn. 374, 398, 542 A.2d 306 (1988).
We should decide whether the double jeopardy clause bars a retrial of the defendant pursuant to § 54a-40 (d), and if it does, then this court should dismiss the state’s appeal. The state agrees that a proceeding under § 53a-40 (d) has several characteristics comparable to criminal trials on the question of guilt or innocence such that it would be subject to the double jeopardy clause. See Arizona v. Rumsey, 467 U.S. 203, 211-12, 104 S. Ct. 2305, 81 L. Ed. 2d 164 (1984); Bullington v. Missouri, 451 U.S. 430, 438, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981). A persistent felony offender charge must be adjudicated in a proceeding separate from that involving the principal crime charged. The state has the burden of proving the elements of a persistent felony offender charge beyond a reasonable doubt. State v. Sinclair, 184 Conn. 215, 216-17, 439 A.2d 945 (1981). Where the jury is not given unfettered discretion to choose an appropriate punishment, but instead, must decide between two alternatives, it has been held that the proceeding is subject to the double jeopardy clause. Bullington v. Missouri, supra, 438; State v. Daniels, *343supra, 207 Conn. 398-99 (double jeopardy principles apply to General Statutes § 53a-46a).
The state argues, however, that the trial court’s disposition of the persistent felony offender charge was not an “acquittal” because on remand the trial court could render judgment on the facts that it had previously found. Decisions of the United States Supreme Court demonstrate otherwise: “[W]hen a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.” Sanabria v. United States, 437 U.S. 54, 64, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978); United States v. Martin Linen Supply Co., supra, 430 U.S. 571; Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 7 L. Ed. 2d 629 (1962); State v. Paolella, 210 Conn. 110, 130, 554 A.2d 702 (1989). In Arizona v. Rumsey, supra, 467 U.S. 211, the court stated: “In making its findings, the trial court relied on a misconstruction of the statute. . . . Reliance on an error of law, however, does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits. . . . Thus, this [c]ourt’s cases hold that an acquittal on the merits bars retrial even if based on legal error.” (Citation omitted.) I therefore disagree with the state that the defendant has not been acquitted of § 53a-40 (d).
Although I concur in the result, I conclude that the state’s appeal would have no proper purpose and should be dismissed.
The implied waiver found from a failure to raise the issue “at the first opportunity” in Levin v. United States, 5 F.2d 598, 600-601 (9th Cir. 1925), applied to a failure to raise the issue of a duplicitous indictment at the trial before a verdict was returned. It could not thereafter be raised for the first time in a motion for arrest of judgment. These circumstances, as well, do not exist here.