specially concurs:
I concur in this decision that the statute is unconstitutional for vagueness, but I hasten to add that I objected to the 1500 year sentence imposed in Callins v. State, Okl. Cr., 500 P.2d 1333 (1972), and the 1000 year sentence approved in Fields v. State, Okl. Cr., 501 P.2d 1390 (1972), both of which are mentioned in the attached appendix to this decision.
APPENDIX
IN THE DISTRICT COURT OF OKLAHOMA COUNTY
STATE OF OKLAHOMA
ADVISORY OPINION TO THE JUDGES
The Thirty-Fifth Oklahoma Legislature, 1976, amended the statute which is commonly referred to as the Habitual Criminal Statute. The statute, as amended, is now codified as 21 O.S. 1976 Supp., § 51, and became effective May 10, 1976. Said statute, with the amendatory portion underlined, provides as follows:
*472“A. Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction is punishable therefor as follows:
1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five (5) years, such person is punishable by imprisonment in the penitentiary for a term not less than ten (10) years.
2. If such subsequent offense is such that upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five (5) years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten (10) years.
3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five (5) years.
B. Every person who, having been twice convicted of felony offenses, commits a third, or thereafter, felony offenses within ten (10) years of the date following the completion of the execution of the sentence, shall be punished bv imprisonment in the State Penitentiary for a term of twenty (20) years plus the longest imprisonment for which the said third or subsequent conviction was punishable. had it been a first offense: provided. that felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time or location: provided, further, that nothing in this section shall abrogate or affect the punishment bv death in ah crimes now or hereafter made punishable bv death.”
The amended Section 51 has caused considerable confusion in this Seventh Judicial District in its application in specific instances. An example is in order here so that the problem may be quickly brought into focus.
Consider a situation in which a defendant is charged with the crime of Burglary in the Second Degree, After Former Conviction of Two Felony Offenses. In this example the defendant is found guilty by a jury of the present offense and does not stipulate in the second stage of the trial to the previous convictions. The State, consequently, has the burden of proving same. The Court’s instructions in the second stage of the trial would necessarily include the range of punishments for first offense Burglary in the Second Degree, Burglary in the Second Degree, After Former Conviction of One Felony and Burglary in the Second Degree, After Former Conviction of Two Felonies. The following would be the instructed punishments:
Offense
Burglary in the Second Degree
Burglary in the Second Degree, After Former Conviction of One Felony
Burglary in the Second Degree, After Former Conviction of Two Felonies
Punishment
Imprisonment not exceeding seven (7) years and not less than two (2) years
Imprisonment for a term not less than ten (10) years
Imprisonment for twenty (20) years plus seven (7) years
We have, then, a situation in which the jury, should it find from the evidence that the defendant had two previous felony convictions, must assess the defendant’s punishment at 27 years. But what if the jury should find that the State has established *473only one previous conviction, or what if the jury should find that the instant offense was not committed within 10 years of the completion of the execution of one of the previous felony convictions? In either of such events there would remain only one previous felony conviction and the jury would, under the first subsection of 21 O.S.. 1976 Supp., § 51, supra, fix the defendant’s punishment at imprisonment for a term not less than 10 years.
A jury would likely view the Court’s instructions in this regard as being rather ludicrous. No doubt a jury would deem such instruction even more ludicrous where there were several previous felony convictions. In other words, a jury would be told by the Court, in effect, that if they found from the evidence that the defendant had two, or even ten, previous felony convictions they could only assess punishment at 27 years imprisonment, but if they found that he had only one previous felony conviction, then they could assess punishment at any number of years above 10 years.
The possibilities under such situation are obvious. This county has witnessed extreme punishment assessments by juries under the said Section 51(A)(1). In Callins v. State, Okl.Cr., 500 P.2d 1333 (1972), the Court of Criminal Appeals affirmed a sentence of 1500 years which a jury fixed for the crime of Rape in the First Degree, After Former Conviction of a Felony. The appellate court specifically rejected attacks on such sentence based upon cruel and unusual punishment, equal protection of the law, encroachment upon the executive branch and exeessiveness. Again in Fields & Phillips v. State, Okl.Cr., 501 P.2d 1390 (1972), said court affirmed a sentence of 1000 years for the same offense. Very recently in this county a jury returned a verdict fixing a defendant’s sentence at 999 years upon conviction of the crime of Robbery With Firearms, After Former Conviction of a Felony. The trial court overruled a motion for new trial in that case.
With specific regard to the offense used in the example above, Burglary in the Second Degree, After Former Conviction of a Felony, it should be noted that the Court of Criminal Appeals in the case of Wilkerson v. State, Okl.Cr., 489 P.2d 1098 (1973), affirmed a sentence of 99 years, although modifying same to 50 years. In Watkins v. State, Okl.Cr., 511 P.2d 589 (1973), that court affirmed a sentence of 50 years, but modified it to 35 years, and in Johnson v. State, Okl.Cr., 453 P.2d 390 (1969), that court affirmed a sentence of 40 years imprisonment.
Again, such possibilities exist only where a defendant is so unfortunate as to be charged with or convicted of the commission of Burglary in the Second Degree, after former conviction of one felony offense. Should he have previously been convicted of two, five or eight felony offenses, and then commits the crime of Burglary in the Second Degree, then he must be satisfied with a sentence of 27 years imprisonment.
Although the illustration set forth at the outset of this opinion involved a prosecution for the crime of burglary in the second degree, the same possible absurd consequences exist whenever the offense being tried is one in which the possible penalty exceeds five years imprisonment, thereby falling within 21 O.S.1976 Supp., § 51(A)(1), the defendant is charged after former conviction of two or more felonies, and the court’s instructions give the jury the option of finding the state’s evidence has beyond a reasonable doubt established only one prior felony conviction. Some other such offenses with which we regularly deal and which fit this category are the following:
Offense
Burglary, 1st Degree
Arson, 1st Degree
Arson, 2nd Degree
Uttering a Forged Instrument
Punishment
Not less than 7 nor more than 20 years
Not exceeding 20 years
Not exceeding 15 years
Not exceeding 7 years
*474Offense
Punishment
Indecent Exposure
Shooting With Intent to Kill
Bogus Check
Larceny of an Automobile
Not less than 30 days nor more than 10 years
Not exceeding 20 years
Not less than 1 nor more than 10 years
Not less than 3 nor more than 20 years
Further illustrative of some of the possible absurd ramifications of the questioned statute are those crimes for which the legislature has provided open-ended punishment. Some of these are Robbery with Firearms, the punishment for which is imprisonment for not less than 5 years, Manslaughter in the First Degree, punishment for which is imprisonment for not less than 4 years, and Rape in the First Degree, which carries punishment of imprisonment for not less than 5 years. Utilization of the amended Section 51 in prosecutions for any of these crimes, after former conviction of two or more felonies, would require the court to instruct the jury that should they find that the state’s evidence has established two or more prior felony convictions, then they must assess punishment at 20 years imprisonment plus life imprisonment. Merely to state such circumstance is to suggest its absurdity.
The intent of the Oklahoma Legislature in originally enacting the Habitual Criminal Statute is readily apparent. Should there by any doubt, however, our Court of Criminal Appeals has long since removed it by stating repeatedly that the purpose of the statute is to describe circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous felony conviction or convictions. Ex Parte Ward, 97 Okl.Cr. 60, 257 P.2d 1099 (1953), certiorari denied 346 U.S. 879, 74 S.Ct. 133, 98 L.Ed. 386; Salisbury v. State, 80 Okl.Cr. 13, 156 P.2d 149. Even more specifically, said court has said that the intent of the legislature in enacting such legislation was to enhance punishment and not .to decrease it. Dillon v. State, Okl.Cr., 508 P.2d 652; Fulton v. State, Okl.Cr., 491 P.2d 789.
Likewise, the intent of the legislature in amending the statute is obvious, although there has as yet been no pronouncement by our appellate court in this regard. The legislature obviously felt that one who has committed two or more felony offenses and then commits another, thereby becoming a third or subsequent offender, should be punished more severely than one who had only one previous felony conviction. But what has our legislature done in this present enactment, albeit probably an inadvertent result on its part? It has created a situation in which a second offender can, and likely very frequently will, be punished by a jury more severely than a third or subsequent offender. By so doing, the legislature has, in this writer’s opinion, denied a portion of a given classification the equal protection of the laws.
As we know, that protection just alluded to is embraced in the Fourteenth Amendment of the Constitution of the United States, which provides:
“ * * * No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Just what is this equal protection guaranty which is established by the Fourteenth Amendment? A concise and workable definition is provided by this language from 16 Am.Jur.2d, § 488:
“The guiding principle most often stated by the courts is that the constitutional guaranty of equal protection of the laws requires that all persons shall be treated alike under like circumstances and condi*475tions, both in the privileges conferred and in the liabilities imposed. In some cases the principle is stated a little more fully so as to include also within its purview of equality exemptions from liabilities. The equal protection guaranty is intended to secure equality of protection not only for all, but against all similarly situated. * *
Equal protection of the laws is something more than an abstract right; it is a command which the states must respect, the benefits of which every person may demand. Similarly, the laws to which the Fourteenth Amendment’s guaranty of equal protection has reference do not relate to abstract units but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies.
The Supreme Court has pointed out that the guaranty of equal protection of the laws is not one of equality of operation or application of state legislation upon all citizens of a state. Hence, laws need not affect every man, woman and child exactly alike in order to avoid the constitutional prohibition against inequality. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to their circumstances. Equal protection in its guaranty of like treatment to all similarly situated permits classification which is reasonable and not arbitrary and which is based upon substantial differences having a reasonable relation to the objects or persons dealt with and to the public purpose sought to be achieved by the legislation involved.”
Long ago, our Court of Criminal Appeals said much the same thing in the case of State v. Johnsey, 46 Okl.Cr. 233, 287 P. 729 (1930). In that case the Court was concerned with a statute which provided punishment for escape from the state prison at imprisonment for a term not exceeding double the term for which the prisoner was sentenced. In holding the statute unconstitutional as violative of the equal protection clause of the Fourteenth Amendment, the Court said this in the first paragraph of the syllabus of the opinion:
“Every person is entitled to equal protection of the law and ‘equal protection of the law’ means that equal protection and security shall be given to all under like circumstances in his life, liberty, and his property, and in the pursuit of happiness, and in the exemption from any greater burdens and charges than are equally imposed upon all others under like circumstances.”
In the case of Jack’s Sapper Club, LTD v. City of Norman, Okl., 361 P.2d 291, the Supreme Court of Oklahoma upheld the constitutionality of an ordinance dealing with the licensing and regulation of private clubs which permitted consumption of intoxicating liquor on the premises. The court rejected an equal protection attack on said ordinance but, nonetheless, held significantly in the second paragraph of the syllabus as follows:
“The equal-protection clause of the 14th Amendment to the Constitution of the United States only requires that classifications made by a municipal legislative body be reasonable, not arbitrary, and rest upon some ground of distinction having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”
CONCLUSION
The legislature could, without committing constitutional error, single out a classification of persons who would be affected by legislation. This was what it intended to do by passage of that amendatory language contained in 21 O.S.1976 Supp., § 51. The legislature could, further, within that classification relating to habitual offenders, make a distinction between the punishments for second felony offenders and that punishment for third or subsequent offenders. Such classification and sub-classification would have a reasonable relation to the obvious public purpose sought to be achieved by such legislation.
The finished product of the legislature did not do this, however. In its application *476the amended statute fails to accomplish its object and purpose. It provides the possibility, and indeed the probability, of assessing greater punishment against one who commits a felony and is found to have previously been convicted of one other felony than it does against one who commits a felony and is found to have previously been convicted of two or more felonies.
Had the legislature enacted such legislation with the avowed purpose of making the punishment for second offenders more severe than that for third or subsequent offenders, the constitutional infirmity of such legislation would be patent. It would be unreasonable and arbitrary and would not rest upon some ground of distinction having a fair and substantial relation to the object of the legislation. It would seem that the same conclusion must be drawn in the instant situation in which the legislature, no doubt, did not intend this result.
Title 21 O.S.1976 Supp., § 51(B), is unconstitutional, in this writer’s opinion, being violative of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States. It should be so held. Your writer suggests, by the first District Judge of this Court who is called upon in a given prosecution to instruct under its provisions relating to defendants who are charged with former convictions of two or more felonies. By striking down the constitutionally defective portion of said statute we will still leave in effect that portion of the Habitual Criminal Statute as we knew it before the amendment.
Dated this 27th day of April, 1977.
Respectfully submitted,
(s) Charles L. Owens Charles L. Owens District Judge