specially concurring:
I write separately to address the majority’s treatment of the sentencing issues in this case. The jury in this case was given only one punishment alternative, to-wit: guilty of the primary offense, after former conviction of two or more felonies, with the minimum punishment being twenty (20) years imprisonment. See 21 O.S. 1981, § 51(B). The majority says this procedure was proper because the appellant admitted the existence of two prior offenses while on the witness stand. I disagree.
In Dean v. State, 502 P.2d 358 (Okl.Cr.1972), this Court held the decision whether to find an accused guilty of a former conviction is always within the province of the jury. Id. at 360. Furthermore, in Hudson v. State, 78 Okl.Cr. 160, 145 P.2d 774 (1944), we specifically stated that:
[rjegardless of any admissions made by defendant at the trial, it was still the function of the jury to determine as a fact that the defendant had suffered the prior convictions as alleged in information and they should [be] so instructed.
Id., 145 P.2d at 778. The punishment phase is still a trial. See 22 O.S. 1981, § 860. The State still has the burden of proving beyond a reasonable doubt its allegations relating to punishment. See Mitchell v. State, 659 P.2d 366 (Okl.Cr.1983). Certainly, it would be error of fundamental magnitude to direct a verdict of guilty in the first stage of trial even if the defendant had admitted guilt on the stand. See, e.g., Kramer v. State, 97 Okl.Cr. 36, 257 P.2d 521 (1953). Accord Newman v. State, 239 So.2d 913 (Miss.1970). Because the punishment still is a trial, I fail to find the distinction between treatment of a defendant in the first stage of trial, as compared to the second stage. I am therefore of the opinion that the trial court erred in failing to give the jury the option of finding one prior offense, or no prior offenses, and assessing punishment accordingly.
Nevertheless, in Jones v. State, 527 P.2d 169, 173 (Okl.Cr.1974), (overruled on other grounds) this Court held that admission under oath of a former conviction leaves no fact question for the jury to decide. That case has been repeatedly relied upon by unanimous Courts as precedent for over a decade. Therefore, although I disagree with the rule, I am compelled to concur with the result in this opinion as a matter of stare decisis. See Golden v. State, 695 P.2d 6 (Okl.Cr.1985). I do, however, urge the Court to reconsider this rule.