dissenting.
I dissent to the majority’s disposition of Issues I and II.
I.
In Lawrence v. State, (1972) 259 Ind. 306, 312-13, 286 N.E.2d 830, 833-34, we adopted the bifurcated proceeding, later codified in Ind.Code § 35-50-2-8, in order to prevent the evidence of Defendant’s prior convictions, which relates only to the sentence, from unduly influencing the jurors’ determination of guilt or innocence of the principal charge. Thus, for purposes of Ind.Code § 35-50-2-8 the mention of prior convictions during the trial of the principal charge taints, if anything, that proceeding and not the subsequent determination of habitual offender status. Much of the majority’s language in Issue I recognizes this principle, and the majority accedes that the trial court’s failure to bifurcate sua sponte was error. Nevertheless, the remand is limited to a re-trial of the habitual offender charge, apparently because Funk v. State, (1981) Ind., 427 N.E.2d 1081 and State v. McMillan, (1980) Ind., 409 N.E.2d 612, cert. denied, (1981) 450 U.S. 1003, 101 S.Ct. 1714, 68 L.Ed.2d 207 authorize such a re-trial.
Those decisions, which allow a re-trial of the habitual offender charge, following the declaration of a mistrial on the habitual offender count proceeding, are irrelevant. Defendant’s testimony about his prior convictions and the State’s cross-examination thereon was available to the jury, for its consideration, as it deliberated the charges of Burglary and Theft. Presentation of evidence of Defendant’s prior convictions created the potential for prejudice to the defense of the Burglary and Theft charges, which the bifurcation is designed to prevent.
I am not inclined to agree that the parties may not, with the consent of the Court, waive bifurcation. However, if the majority is correct in its ruling to the contrary, *6then the convictions for Burglary and Theft were had in circumstances which the statute was designed to prevent and were viola-tive of Due Process. In that event, they should be reversed and the case remanded for a new trial. The majority’s disposition results in an anomaly unsupported by the purpose for separating the trial of the habitual offender charge from the trial of the principal charge.
II.
Based upon the record made by the parties, I vote to affirm the convictions for Burglary and Theft, to reverse the finding of habitual offender status, and to remand the case for re-sentencing in accord with this opinion.
The majority notes that Defendant did not object to Final Instruction C-18. The State also failed to object to this instruction, which put the issue of the habitual offender charge before the jury. It seems, from the parties’ inaction, that both were satisfied to submit the habitual offender charge to the jury — Defendant confident that the evidence of habitual offender status was insufficient and the State equally confident that Defendant’s admission of several prior felony convictions would persuade the jury. By failing to object to Final Instruction C-18, the State forfeited, we assume for tactical reasons, the opportunity to present additional evidence in support of the habitual offender charge during an habitual offender proceeding.
To sustain a sentence under the Habitual Offender Statute, Ind.Code § 35-50-2-8 (Burns 1979), the State must show that the defendant has been previously twice convicted and twice sentenced for felonies, that the commission of the second offense was subsequent to his having been sentenced upon the first and that the commission of the principal offense upon which the enhanced punishment is. being sought was subsequent to his having been sentenced upon the second conviction. Miller v. State, (1981) Ind., 417 N.E.2d 339, 342.
In cases such as this, the defendant, who testifies in his own defense, may choose for tactical reasons to admit the prior convictions on direct examination, as occurred here, see Smith v. State, (1981) Ind., 422 N.E.2d 1179, 1187, or he may have them exposed by the Prosecutor, as proper impeachment on cross-examination as also occurred here. Jameison v. State, (1978) 268 Ind. 599, 603, 377 N.E.2d 404, 406-07. See Gilmore v. State, (1981) Ind., 415 N.E.2d 70, 73; Williams v. State, (1981) Ind., 419 N.E.2d 134, 137. However, the mere admission of prior convictions was not evidence that he had been sentenced upon them. The record herein reveals but one sentencing.
The Habitual Offender count of the information charged the following prior felonies:
1. June 18, 1969 — Owen Circuit Court, conspiracy first degree burglary, 2-14 years at the Indiana Reformatory.
2. May 13, 1977 — LaPorte Superior Court, theft, one year at the Indiana State Farm.
3. April 17, 1979 — Montgomery Circuit Court, theft, two years at the Indiana State Farm.
4. April 15, 1975 — Lawrence Superior Court, second degree burglary, 2-5 years at the Indiana Reception and Diagnostic Center.
5. August 18, 1972 — Greene Circuit Court, carrying a pistol without a permit, one year at the Indiana Reception and Diagnostic Center.
The only evidence concerning the charged prior felonies came during the testimony of Defendant. On direct examination, he admitted a 1969 conviction for Burglary and Theft in Florida, which was not relevant to the habitual offender count as it was not charged. He also admitted guilty pleas to conspiracy to commit burglary in 1969, second degree burglary in 1975, and theft in 1977,1978, and 1979. On cross-examination the Prosecutor interrogated concerning the convictions that Defendant had mentioned on direct examination and also extracted an admission as to 1972 conviction for carrying a pistol. Defendant also volunteered that *7he had been convicted in Kentucky in 1978 for two counts of theft, neither of which had been charged.
There is without doubt ample evidence for the jury to have found that Defendant suffered numerous prior felony convictions; however, the statute requires that the State also show the imposition of sentences upon at least two of the five charged prior felony convictions. The only evidence of sentencing on any of the charged prior felonies also came from the defendant’s testimony and provided, at best, a weak inference, which relates, again at best, only to the charged 1979 Theft conviction. On direct examination Defendant testified as follows:
“Q. Okay. Basil, you remember Friday, February the 8th, 1980?
“A. Yes, sir.
“Q. Just got off the Farm, didn’t you?
“A. Yes, I did.
“Q. Okay. And, how’d you feel at that time?
“A. Pretty good. Fairly happy about it, you know. I done about nine months there, too, so-
“Q. Did you want to go back?
“A. No, sir.” (R. at 626)
Defendant then related the remainder of his alibi defense, which included that he had used a bus ticket to go from the Farm to Indianapolis, rather than to Crawfordsville, the destination printed on the ticket.
The record is devoid of any evidence from which it can be reasonably inferred that the defendant has ever been sentenced upon any of the charged prior felony convictions other than the one in 1979. There is no evidence to weigh and no credibility to determine; and upon this state of the record, the finding that Defendant is an habitual offender cannot stand.
The State submitted a charge of habitual offender to the jury upon a record which does not contain sufficient evidence to sustain it. The majority, in effect, sanctions a re-trial, a second opportunity for the State to repair a hole in its case by submitting evidence that it could have presented at the first trial. Such a re-trial violates the Double Jeopardy provisions of the State and Federal Constitutions. Hudson v. Louisiana, (1981) 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (cases cited therein); Webster v. State, (1980) Ind., 413 N.E.2d 898, 902 (Prentice, J., concurring and dissenting).
I concur in Issues III and IV of the majority opinion and therefore vote to affirm the convictions for Burglary and Theft; but for the reasons expressed above, the habitual offender finding should be reversed and the case remanded with instructions to vacate the verdict upon the habitual offender count and to re-sentence the defendant.