OPINION ON PETITION TO REHEAR
DUNCAN, Judge.Our opinion in this case was filed on October 26,1978. The State filed a petition to rehear on Monday, November 13, 1978. Under the provisions of T.C.A. § 16-451, the State had 15 days in which to file its petition. That period would ordinarily have expired on Friday, November 10. However, November 10 was a legal holiday, and must be excluded from the time formula set forth in T.C.A. § 1-302. Likewise, because of the provisions of that statute, the succeeding Saturday and Sunday must also be excluded. By following the computation formula set forth in the statute cited, Monday, November 13, was the 15th day. This petition was filed on that day; thus the appellant’s insistance that the petition was not timely filed is not meritorious.
In its petition to rehear, the State asks us to reconsider the part of our opinion in which we vacated that portion of the trial court’s judgment which found the appellant to be a third offender of the shoplifting laws. In our original opinion, we dismissed that portion of the indictment1 which had charged her with being a third offender, and cited as authority for our ruling the case of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). It was our opinion then, and still is, that Burks would preclude a retrial on that portion of the indictment.
In our original opinion, we based our ruling on the fact that the State had failed to offer sufficient evidence to prove the appellant’s alleged prior convictions.
The record in this case is abundantly clear that the proof adduced on the enhanced punishment phase of this trial was totally insufficient to support a jury finding that the State had proved that the defendant had been convicted of the prior shoplifting offenses, as alleged in the indictment. The appellant moved for a directed verdict on that portion of the indictment. The trial court erred in not granting that motion. The appellant was entitled to a verdict of acquittal as to her third offender status. From our review of the record, and as we understand the law, it was, and is, our duty to enter a verdict of acquittal in this regard.
If the trial court had determined that the State’s evidence on the point in question was insufficient and had directed a verdict of not guilty on that portion of the indictment, as it should have done, it could not seriously be argued that the appellant could be tried again. Where we, as the reviewing court, determine that the evidence is insufficient, then the effect is the same, and the appellant cannot be retried.
In Burks v. United States, supra, the court specifically held that a defendant may not be tried a second time when a review*150ing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury. Among other things, the court said:
Consequently, as Mr. Justice Douglas correctly perceived in Sapir (Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426), it should make no difference that the reviewing court, rather than the trial court, determine the evidence to be insufficient, see 348 U.S., at 374, 75 S.Ct. at 422. The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal. To hold otherwise would create a purely arbitrary distinction between those in petitioner’s position and others who would enjoy the benefit of a correct decision by the District Court. See Sumpter v. DeGroote, 552 F.2d 1206, 1211-1212 (CA7 1977).
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. 98 S.Ct. at 2147.
The State analogizes in support of their position that in habitual criminal prosecutions, the fact that a defendant may have been acquitted of being an habitual criminal on one occasion would not bar a finding of his habitual criminality in another prosecution, even though the latter finding was based on the same prior offenses that the first prosecution was predicated upon. For this proposition, the State correctly relies on Pearson v. State, 521 S.W.2d 225 (Tenn.1975), and Glasscock v. State, 570 S.W. 2d 354 (Tenn.Cr.App.1978). We point out that both of those cases dealt with successive prosecutions where different triggering offenses were involved, and we readily concede that those case holdings are correct legal propositions, so long as a different triggering offense is involved. With respect to the present ease, if the appellant were re-indicted for a new and different triggering offense, then without question the State would be within its rights to use her prior offenses for enhancement purposes.
Further, if one is acquitted of being an habitual criminal, then he cannot again be prosecuted for habitual criminality, absent an intervening conviction of one of the required triggering felonies. We find this latter conclusion to be well supported by' our Supreme Court’s language in Pearson v. State, supra, as follows:
It is an elementary proposition that the double jeopardy provisions of the State and Federal Constitutions preclude a second conviction under the habitual criminal statutes, absent the intervening conviction for one of the specific felonies. Again, it is the subsequent felony conviction that triggers the statute. 521 S.W.2d at 227.
It is also true, as the State argues, that habitual criminality is a status and not an offense. However, before one can be found guilty of being an habitual criminal — or of being a repeat offender of the shoplifting laws — there must be a specific finding of such by the jury. See T.C.A. § 40-2805. To that extent then this specific finding is a part of the jury verdict, and once the die is cast by either a jury verdict, or a directed verdict of acquittal by the judge — or reviewing court as in the present case — because of the insufficiency of the evidence, then under the holdings of Burks v. United States, supra, the accused may not be subjected to another prosecution involving the same case for the purpose of enhanced punishment.
The State cites two cases, Davis v. Bennett, 400 F.2d 279 (8th Cir. 1968), cert. den. 395 U.S. 980, 89 S.Ct. 2137, 23 L.Ed.2d 768, and Branch v. Beto, 364 F.Supp. 938 (S.D.Tex.1973) for the proposition that the appellant’s prior convictions may be used for enhancement purposes upon a retrial for the same triggering offense. In our opinion those cases, which pre-dated the Burks decision, would no longer serve as any authority for the proposition stated. We hasten to point out that prior to Burks, Tennessee, as well as practically all other jurisdictions, had always allowed a retrial of cases that had been reversed at the appellate level because of insufficient evidence.
*151Unquestionably, the jury verdict in the present case, in addition to finding the appellant guilty of the present offense, necessarily included the additional finding that she was a repeat offender of the shoplifting laws. We have found that the State failed to adduce sufficient evidence to support that finding by the jury, thus mandating an acquittal. Therefore, the State may not now be allowed to subject the defendant to another trial, on this same indictment, before a different jury, in an attempt to prove what it could not prove at the original trial. The State has had their opportunity to present their evidence in an effort to prove the appellant’s status as a repeat offender of the shoplifting laws and has failed to do so. As we read Burks, the prosecution is not permitted to have a “ ‘second bite at the apple.’ ” Burks v. United States, supra, 98 S.Ct. at 2150.
We adhere to the ruling made in our original opinion. We enter a judgment of acquittal for the appellant on the enhanced penalty phase of this trial and dismiss that portion of the indictment. We affirm the appellant’s conviction for the present offense of shoplifting and remand that portion of the case to the trial court for a punishment trial solely as it pertains to the present offense.
The State’s petition to rehear is dismissed.
BYERS, J., concurs.
. The indictment in this case was not labeled as a two-count indictment. However, in one section the defendant was charged with a present offense of shoplifting, and in a separate section with being a repeat offender.