OPINION
PHILLIPS, Judge.This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.
Petitioner is challenging the validity of a conviction in Travis County Cause number 49,807, wherein he was convicted on his plea of guilty to the court of the offense of aggravated assault, with a prior conviction alleged for enhancement under V.T.C.A., Penal Code, Sec. 12.42(a). Petitioner was sentenced to serve a sixteen (16) year term of confinement in this case on November 12, 1975. No appeal was perfected in this cause.
Petitioner filed an application for writ of habeas corpus in the trial court, alleging that the above-mentioned sentence was excessive, since the prior conviction alleged for enhancement was barred for use as an enhancement paragraph because this same prior conviction had been used for enhancement in a prior case under V.T.C.A., Penal Code, Sec. 12.42(d), the habitual criminal act. The trial court recommended that the application for writ of habeas corpus be denied, without entering findings of fact and conclusions of law.
The records before this Court reflect that on November 10, 1975, petitioner was convicted, on his plea of not guilty to a jury, in Travis County Cause number 49,806, of the offense of aggravated assault with a deadly weapon. At a punishment hearing before the court, two prior convictions were proved for enhancement purposes under Sec. 12.-42(d), supra. Petitioner was subsequently sentenced to a life term of imprisonment and that conviction is presently pending appeal to this Court.
The record supports petitioner’s contention that a 1969 burglary conviction from Williamson County in Cause number 13,598 was twice used for enhancement purposes, initially for enhancing petitioner’s punishment as an habitual criminal in Travis County Cause number 49,806, and then subsequently enhancing petitioner’s punishment as a second offender in Travis County Cause number 49,807.
The law is clear that in prosecutions under Sec. 12.42 the same prior conviction cannot be used to enhance a defendant’s punishment to life as an habitual criminal in two separate cases. See Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); Ex parte Friday, 545 S.W.2d 182 (Tex.Cr.App. 1977); Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177 (1940); and Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179 (1940). It is the general rule that a prior conviction cannot be used twice for enhancement purposes in any two cases. See Shaw v. State, 530 S.W.2d 838 (Tex.Cr.App. 1976); Ex parte White, 538 S.W.2d 417 (Tex.Cr.App.1976); Rollins v. State, 542 S.W.2d 163 (Tex.Cr.App.1976); Miller v. State, 139 Tex.Cr.R. 406, 140 S.W.2d 859 (1940); Cothran v. State, 139 Tex.Cr.R. 339, 140 S.W.2d 860 (1940); Kinney v. State, 45 Tex.Cr.R. 500, 79 S.W. 570 (1904). This general rule is subject to the exception that the use of a prior conviction to enhance the punishment as a second offender does not preclude the State from again using that conviction to affix the status of a habitual criminal. See Ex parte White, supra; Ex parte Calloway, 151 Tex.Cr.R. 90, 205 S.W.2d 583 (1947); Mayo v. State, 166 Tex. Cr.R. 470, 314 S.W.2d 834 (1957); Head v. State, 419 S.W.2d 375 (Tex.Cr.App.1967); Cleveland v. State, 493 S.W.2d 145 (Tex.Cr.App. 1973).
A review of all the above-mentioned cases indicates that if a prior conviction is used successfully, it cannot be used for enhancement again, unless the State uses it for the purposes of showing appellant to be a habitual criminal for the first time. If, on the other hand, the prior prosecution was not successfully enhanced, then the pri- *184or conviction may be used in a new prosecution. See Florez v. State, 479 S.W.2d 683 (Tex.Cr.App.1972); Benedict v. State, 172 Tex.Cr.R. 570, 361 S.W.2d 373 (1962); Brown v. State, 150 Tex.Cr.R. 386, 196 S.W.2d 819 (1946); Cleveland v. State, supra, and cases cited therein.
In the case at bar, at the time of petitioner’s conviction in Cause number 49,-807, the prior conviction had been used successfully for the enhancement of petitioner’s sentence as a habitual criminal. As the dissent accurately notes, this particular fact situation has not been addressed by the Court before. However, we differ on how to “intelligently pass upon the question before us.” The rules concerning the use of prior convictions for purposes of enhancement, under the case law of this State, demonstrate an attitude or philosophy that a prior conviction can only be utilized twice in a graduated situation. That is to say, if it is once used to enhance a felony offender to the status of a second offender, it can be used again for purposes of enhancement to a habitual offender. It is noted that this graduated approach results in increasing potential punishments. The question then becomes: Should the State be permitted to use a prior conviction for enhancement under V.T.C.A., Penal Code, Sec. 12.42(a) after the State has successfully invoked the same prior conviction as part of its effort to enhance the petitioner’s sentence under V.T.C.A., Penal Code, Sec. 12.42(d)? We think more is involved in our conclusion that the State cannot take such action than elevating form over substance. Once a pri- or conviction is utilized to obtain the maximum automatic sentence available under our Penal Code, it should be put to rest. If the State desires to maximize its use of an accused’s prior felony convictions, it should schedule its prosecutions in accordance with the established rules of law. Since we find no authority for the proposition that the State should be allowed to violate the general rule by prosecuting as a habitual criminal first and then subsequently prosecuting as a second offender and we conclude that the fair utilization of the enhancement provisions of our current Penal Code dictate against such a procedure, we hold that the State is estopped from using a prior conviction for enhancement again in another case where it has previously used it for enhancement under the habitual criminal provisions of the Penal Code. V.T.C.A., Penal Code, Sec. 12.42(d).
For the reasons stated we hold that petitioner’s 16-year sentence in Cause number 49,807 is excessive; however, since the conviction resulted from a plea of guilty to the court, with the court assessing punishment, then the appropriate remedy would be to remand this case back to the trial court for assessment of punishment within the range of a third degree felony. See Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App. 1976).
It is so ordered.