dissenting.
Respectfully, I dissent. I see no reason to impose on our overburdened judicial system a complete retrial of this case with the potential for further appeals concerning alleged errors on the retrial.
In Crooks v. Commonwealth, Ky., 655 S.W.2d 475 (1983), we held that a jury is required not only to find guilt but must also fix a sentence in a persistent felony offender case. In that case, however, the jury returned a verdict of guilt, but was unable to agree upon a sentence. Crooks v. Commonwealth, supra, is not controlling here because in this case a jury has found the appellant guilty as a persistent felony offender and has also imposed the minimum sentence permitted by law for his offense.
The finding of guilt on the underlying offense has been affirmed on appeal. His conviction as a persistent felony offender in the first degree was reversed solely because the two previous sentences for felony used to enhance punishment constituted only one previous conviction pursuant to K.R.S. 532.080(4). Because only one previous conviction could be used to enhance the sentence, appellant could not be convicted as a persistent felony offender in the first degree but could be convicted as a persistent felony offender in the second degree.
The conviction of the appellant as a persistent felony offender in the first degree based on the jury’s belief that he had been found guilty previously of two felonies necessarily included a finding by the jury that he had been convicted previously of at least one felony.
It is my view that appellant has had a due process trial. A jury has already determined fairly from the evidence that pri- or to his conviction of the underlying offense, he had been convicted of at least one felony.
The jury has already imposed the minimum sentence of 10 years as a persistent felony offender in the first degree. The minimum sentence in appellant’s case as a persistent felony offender in the second degree is five years. While there is no doubt that the jury’s verdict in the first trial necessarily included a finding that appellant had previously been convicted of a felony, there is reason to doubt whether the jury would have imposed the maximum rather than the minimum penalty as a persistent felony offender in the second de*225gree. Since the jury was agreeable to the imposition of a minimum penalty of ten years on the facts of this case, there is simply no reason to doubt that the same jury would have imposed at least the minimum of five years imprisonment as a second-degree persistent felony offender.
Upon the remand to the circuit court for resentencing, it is my view that the trial judge can impose the minimum penalty as a second-degree persistent felony offender without a retrial. A jury verdict would be required, however, to impose any sentence greater than the minimum.
GANT and LAMBERT, JJ., join in this dissent.