concurring in part and dissenting in part.
While I concur with Section One of the majority opinion which holds that the trial court properly joined the robbery and escape charges for trial, I disagree with the majority’s analysis of RCr 5.16. Although I agree with Justice Stumbo’s interpretation of RCr 5.16, I write separately to further discuss the authority cited by the majority and to express my opinion that, in this case, Jackson could be retried upon remand as a persistent felony offender (PFO) if the Commonwealth properly secured his reindictment as a PFO.
I merely wish to supplement Justice Stumbo’s analysis of RCr 5.16 by demonstrating that the authority cited by the majority opinion for its conclusion that “it is not for the courts to look behind the face of the indictment,” was written in an era when Commonwealth’s Attorneys had greater latitude with respect to the preservation of grand jury testimony. Rice v. Commonwealth,1 predates the adoption of RCr 5.16, and, in Rice, our predecessor court did not address the issue now before this Court. The majority correctly notes that the Rice court interpreted Section 107 of the former Code of Practice in Criminal Cases, but ignores the relevance of Section 110 of the former Code which allowed the Commonwealth’s Attorney sole discretion regarding whether grand jury testimony was transcribed:
[Authority is hereby given to the Commonwealth’s attorney to appoint a stenographer, who shall on order of the said Commonwealth’s attorney, attend any session of the grand jury ... and be present during the examination of any witness or witnesses before the grand jury and shall make full and correct notes of the testimony of the witnesses[.]2
The present Rules of Criminal Procedure require the Commonwealth’s Attorney to record the testimony before the grand jury3 and I believe RCr 5.16 requires the trial court to dismiss an indictment when the Commonwealth’s Attorney fails to do so unless good cause is shown for the failure.4 The majority’s interpretation of RCr 5.16 renders it meaningless.
I agree with Justice Stumbo that the trial court should have set aside Jackson’s PFO indictment, and Jackson, therefore, cannot be retried as a PFO under Fayette Circuit Court Indictment Number 98-CR-1085. I disagree, however, with Justice Stumbo’s suggestion that, if this Court reversed Jackson’s PFO conviction for failure to abide by RCr 5.15, the Commonwealth could never seek PFO enhancement of Jackson’s sentence for second degree escape. While I would reverse Jackson’s first degree PFO conviction, I do not believe such a reversal would preclude the Commonwealth from seeking reindictment of Jackson as a PFO for the purpose of enhancing the penalty for the underlying escape offense.
Although the PFO statute requires a separate proceeding from the proceeding that resulted in the sentence to be enhanced,5 and expresses a preference for conducting PFO proceedings before the *911same jury that imposed the sentence to be enhanced,6 the statute recognizes that such procedure is not always possible and authorizes, for good cause, the PFO proceedings to be conducted before a new jury empaneled for that purpose.7 I can find no reason that the Commonwealth, if necessary, could not seek a reindictment of the PFO charge since the defendant undis-putedly had notice prior to his trial that the Commonwealth would seek enhancement of any felony sentence imposed on the underlying charges.
We have previously held that a PFO charge may properly be presented by an indictment separate from the indictment for the underlying substantive offense:
KRS 532.080, the PFO statute, requires that a defendant be charged as a persistent felon, but does not require that the charge be included in the same indictment which charges the underlying substantive offense. While this procedure may be preferred, we are aware of no cases holding that failure to include a PFO charge in the indictment charging the underlying substantive offense renders a subsequent PFO conviction void. The only cases cited by Price which touch upon this issue were decided well before enactment of KRS 582.080 and are not controlling. While it is true that KRS 532.080 is an enhancement provision and that a present felony conviction is required to trigger its operation, this does not mean that a PFO charge cannot be set out in a separate indictment. If the legislature had intended that PFO charges be presented only in the indictment which charges the underlying substantive offense, it could have set out this requirement in specific terms just as it stated that a defendant’s status as a PFO is to be determined in a proceeding ancillary to the proceeding in which the defendant’s guilt on the substantive offense is decided.
We interpret the PFO statute as requiring that if the Commonwealth seeks enhancement by proof of PFO status, the defendant is entitled to notice of this before the trial of the underlying substantive offense. A separate indictment meets this requirement just as does a separate count in the indictment charging the substantive offense to which it refers.
The real issue in this case is whether Price was substantially prejudiced by the Commonwealth’s procedure of separately indicting him for first-degree robbery and as a first-degree PFO. Given the fact that Price was arraigned on the PFO charge nearly one full month before he proceeded to trial, we do not conclude that he was in any way deprived of notice of or an opportunity to defend against the charge.8
Although KRS 532.080 indicates a legislative preference that PFO proceedings be conducted before the same jury that found the defendant guilty of the underlying substantive offense9 and suggests a preference that a PFO charge be indicted prior to the trial of the underlying substantive offense, the legislature did not specifically require such a procedure, and the realities of criminal prosecution require procedural *912flexibility.10
In holding that West Virginia’s procedure of allowing an indictment of a PFO charge subsequent to a conviction of the underlying substantive offense did not violate due process, the United States Supreme Court stated:
Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is ‘essentially independent’ of the determination of guilt on the underlying substantive offense. Thus, although the habitual criminal issue may be combined with the trial of the felony charge, ‘it is a distinct issue, and it may appropriately be the subject of separate determination.’ If West Virginia chooses to handle the matter as two separate proceedings, due process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding. As interpreted by its highest court, West Virginia’s recidivist statute does not require the State to notify the defendant prior to trial on the substantive offense that information of his prior convictions will be presented in the event he is found guilty.11
Under the circumstances of this case, the Commonwealth should be allowed to seek reindictment of Jackson for first degree PFO because Jackson had notice, prior to his trial on the underlying substantive offense, that the Commonwealth would seek enhancement of any felony conviction. With such notice, Jackson would not, therefore, be prejudiced by his reindictment.
I would reverse Jackson’s first degree PFO conviction and the twenty year sentence imposed, but affirm the second degree escape conviction and remand the case to the trial court for resentencing, not only on the underlying escape charge, but if the Commonwealth secures reindictment of the first degree PFO charge, and Jackson is found to be a first degree PFO, then for resentencing as a persistent felony offender as well.
. Ky., 288 S.W.2d 635 (1965).
. The Code of Practice in Criminal Cases § 110. (Emphasis added).
. RCr 5.16(1).
. RCr 5.16(2).
. KRS 532.080(1). ("When a defendant is charged with being a persistent felony offender, the determination of whether or not he is such an offender and the punishment to be *911imposed ... shall be determined in a separate proceeding from that proceeding which resulted in his last conviction.” Id.)
.Id. ("Such proceeding shall be conducted before the court sitting with the jury that found the defendant guilty of his most recent offense .... ” Id.)
. Id. (“[U]nless the court for good cause discharges that jury and impanels a new jury for that purpose.” Id.)
. Price v. Com., Ky., 666 S.W.2d 749, 750 (1984).
.Supra note 6.
. Oyler v. Boles, 368 U.S. 448, 452-453, 82 S.Ct. 501, 503-504, 7 L.Ed.2d 446 (1962) ("Any other rule would place a difficult burden on the imposition of a recidivist penalty. Although the fact of a prior conviction is within the knowledge of the defendant, often this knowledge does not come home to the prosecutor until after the trial, and in many cases the prior convictions are not discovered until the defendant reaches the penitentiary.” Id. at 368 U.S. 448, 452 note 6, 82 S.Ct. 501, 7 L.Ed.2d 446.).
. Oyler v. Boles, supra note 10 (citations omitted).