dissenting.
I would reverse Dye’s adjudication as an habitual offender because I believe it was an improper double enhancement. Dye’s conviction of possession of a handgun by a serious violent felon (“SVF”) was premised on a 1998 conviction of attempted battery by means of a deadly weapon. His habitual offender adjudication rests on another 1998 conviction, of possession of a handgun within a thousand feet of a school, which arose out of the same incident as did the attempted battery conviction on which the SVF count was based. I must therefore respectfully dissent.
The State may seek to have a person sentenced as an habitual offender by alleging the person has accumulated two prior unrelated felony convictions. Ind. Code § 35-50-2-8. One meaning of the requirement that the prior felonies be “unrelated” is the predicate felony is not part of the res gestae5 of the principal offense. Beldon v. State, 926 N.E.2d 480, 484 (Ind.2010). And see Erickson v. State, 438 N.E.2d 269, 273 (Ind.1982) (“unrelated felony” means a felony not related to the instant felony in the sense that it is not connected to it as part of the res gestae of the instant crime).
As the two predicate unrelated felony convictions for its habitual offender allegation, the State relied on Dye’s convictions of forgery and possession of a firearm within one thousand feet of a school. Those offenses were not part of the same res gestae, so they appear to comport with the statutory requirement for unrelated felonies.
However, the trial court attached the habitual offender enhancement to Dye’s SVF conviction. The prior offense used to establish Dye is a serious violent felon for the SVF conviction was Dye’s 1998 conviction of attempted battery by means of a deadly weapon. That conviction was part of the same res gestae as Dye’s 1998 conviction of possession of a firearm within one thousand feet of a school, which was used to support the habitual offender count.
Our Indiana Supreme Court has held a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence for that crime enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a serious violent felon. Mills v. State, 868 N.E.2d 446, 447 (Ind.2007).6 The State *1174therefore could not have relied on Dye’s 1998 conviction of attempted battery by means of a deadly weapon as a predicate offense for the habitual offender adjudication, as that was the felony on which it based the SVF count. See id.
Instead, the State relied on another charge that arose out of the same incident as the felony on which the SVF count was premised — Dye’s 1998 conviction of possession of a firearm within one thousand feet of a school. Dye argues two offenses that are part of the same res gestae should be considered the “same felony” for habitual offender and SVF double enhancement purposes. I would find they are.
The Mills Court noted the general rule that “absent explicit legislative direction,” a sentence imposed following conviction under a “progressive penalty statute”7 may not be increased further under either the general habitual offender statute or a specialized habitual offender statute. Id. at 449.
Thus, absent express clarification from our legislature or our supreme court, we believe it would contradict the Rule of Lenity as applied in Ross [v. State, 729 N.E.2d 113 (Ind.2000)8] and place form over substance, to hold the State may enhance a defendant’s sentence for being a serious violent felon in possession of a firearm under the general habitual offender statute by using a conviction that was also used to prove the defendant was a serious violent felon, but that the State may not enhance the sentence of one convicted of carrying a handgun without a license by proof of his or her felony status.
Id. at 450 (quoting Conrad v. State, 747 N.E.2d 575, 594-95 (Ind.Ct.App.2001), trans. denied) (footnote added). Cf. Lewis v. State, 769 N.E.2d 243, 249 (Ind.Ct.App.2002), on reh’g, 774 N.E.2d 941 (Ind.Ct.App.2002) (when felony convictions used to classify the defendant as a serious violent felon and to classify him as an habitual offender are different, there is no impediment to imposing an habitual offender enhancement on a sentence for unlawful possession by a SVF).
In Lewis, the offense on which the SVF conviction was based was not part of the same res gestae as the offenses on which the habitual offender was based. We distinguished Conrad.
Subsequently, in [Conrad \ this court examined the effect of Ross on an habitual offender enhancement of a sentence for unlawful possession by a SVF. The defendant in Conrad was convicted of unlawful possession by a SVF, and his sentence was enhanced due to an habitual offender determination. He was classified as a “serious violent felon” due to 1978 convictions of rape, confinement, criminal deviate conduct, and robbery. He was adjudged to be an habitual of*1175fender on the basis of the 1978 convictions and a 1966 conviction for burglary. Acknowledging that a different statute was considered in Ross, we nonetheless applied the principles announced in Ross and determined that
we are faced with an ambiguity in potential punishments as between the specific serious violent felon statute and the general habitual offender statute that must be resolved against the penalty. Thus, absent express clarification from our legislature or our supreme court, we believe it would contradict the Rule of Lenity as applied in Ross, and place form over substance, to hold the State may enhance a defendant’s sentence for being a serious violent felon in possession of a firearm under the general habitual offender statute by using a conviction that was also used to prove the defendant was a serious violent felon ....
Conrad, 747 N.E.2d at 594-95 (emphasis added). The holding in Conrad was driven by the fact that the defendant’s 1978 convictions were used to classify him both as a “serious violent felon” and as an habitual offender. See also id. at 595 (“We, therefore, hold that a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a ‘serious violent felon.’ ”) (emphasis added). That is not the situation we have here. In this case, Lewis was classified as a “serious violent felon” due to a 1987 felony conviction for criminal confinement. He was adjudged an habitual offender on the basis of a 1994 felony conviction for dealing in a sawed off shotgun and 1998 felony convictions for residential entry and criminal recklessness.
769 N.E.2d at 248. And see generally Cynthia L. Sletto, Annotation, Chronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes, 7 A.L.R.5th 263 (1992).
While Dye’s SVF count was not based on a “progressive penalty statute,” the Mills and Conrad reasoning is instructive. I believe the majority’s result “contradict[s] the Rule of Lenity ... and placets] form over substance,” Mills, 868 N.E.2d at 450, to the extent it holds two offenses that are so related they could not be used together for an habitual offender enhancement are, at the same time, so unrelated that they may support a double enhancement in the form of an SVF count and an habitual offender enhancement. See Beldon, 926 N.E.2d at 484 (one meaning of the requirement that the prior felonies be “unrelated” for habitual offender purposes is that the predicate felony is not part of the res gestae of the principal offense). The State therefore should not be permitted to support Dye’s habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon.
In a decision addressing double jeopardy, our Indiana Supreme Court noted “the category described by Justice Sullivan as ‘[c]onviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished.’ ” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002) (quoting Richardson v. State, 717 N.E.2d 32, 56 (Ind.1999) (Sullivan, J., concurring)). It is apparent to me that Dye was subjected to an enhancement that “was imposed for the very same behavior or harm” as another crime for which Dye was convicted and punished. *1176This amounts to an impermissible double enhancement, and I would accordingly reverse the denial of Dye’s motion to dismiss the habitual offender enhancement.
. The term “res gestae" — from the Latin meaning "things done” — includes: (1) circumstances, facts, and declarations incidental to the main fact or transaction, and necessary to illustrate its character, and (2) acts, words, and declarations that are so closely connected to the main fact or transaction as to be a part of it. 29A Am Jur.2d Evidence § 874.
. The Mills Court did not reverse on that ground; it determined when Mills pled guilty he relinquished the right to challenge his sentence as an impermissible double enhancement. 868 N.E.2d at 451-52.
. A "progressive penalty statute” is one where the seriousness of a particular charge can be elevated if the person charged has previously been convicted of a particular offense. For example, Ind.Code § 35-48-4-11 provides Class A misdemeanor possession of marijuana can be charged as a Class D felony if the person charged has a prior conviction of an offense involving marijuana. State v. Downey, 770 N.E.2d 794, 796 (Ind.2002).
. The rule of lenity was described in Ross:
[Wjhen a conflict arises over the question of imposing a harsher penalty or a more lenient one, the longstanding Rule of Lenity should be applied. "It is a familiar principle that statutes which are criminal or penal in their nature or which are in derogation of a common-law right must be strictly construed.” State v. Pence, 173 Ind. 99, 104, 89 N.E. 488, 490 (1909). Also, "where there is ambiguity it must be resolved against the penalty....” Dowd v. Sullivan, 217 Ind. 196, 203, 27 N.E.2d 82, 85 (1940).
Ross v. State, 729 N.E.2d 113, 116 (Ind.2000), superseded by statute on other grounds as stated in Mills v. State, 868 N.E.2d 446 (Ind.2007).