(Concurring)
I join in the opinion of Justice Howe. However, I write to comment on defendant’s claim that section 76-5-202(l)(h) denies him due process and the right to a fair trial because it allows highly prejudicial evidence of his prior felony conviction to come before the jury during the guilt phase of a trial and that absent this defect, he might not have pleaded guilty. Justice Howe demonstrates that defendant did not preserve this issue adequately for appeal. I agree. But lest our disposition of this matter leave some question as to the merit of defendant’s claim, I think it worthwhile to address the general proposition.
The factual premise of defendant’s claim — that under section 76 — 5—202(l)(h), evidence of a prior unrelated crime can be introduced by the State as part of its casein-chief before a defendant’s guilt on the underlying murder charge is determined— is incorrect. A defendant charged with first degree murder under section 76-5-202(l)(h) is entitled to have his or her guilt on the intentional homicide settled before the jury is informed of any prior convictions that provide the basis for raising the intentional homicide from second to first degree murder. State v. Florez, 777 P.2d 452, 458 (Utah 1989); State v. James, 767 P.2d 549, 557 (Utah 1989). This is the same procedure we have mandated in other cases where evidence of a prior unrelated crime is made an element of a current charge for the sole purpose of increasing the punishment. See State v. Wareham, 772 P.2d 960, 965 (Utah 1989); State v. Bishop, 753 P.2d 439, 498 (Utah 1988) (Zimmerman, J., concurring in the result, joined by Durham and Stewart, JJ.) (requiring bifurcated procedure for introduction of evidence of prior child sexual abuse convictions). If this procedure is followed, the constitutional claim raised by the defendant here need never be reached.