SULLIVAN, J.
Anthony Dye was convicted of unlawful possession of a firearm by a serious violent felon (“SVF”) and found to be a habitual offender. We hold that this constituted an impermissible double enhancement and therefore vacate the habitual offender enhancement. We affirm his conviction of unlawful possession of a firearm by an SVF and his sentence for that offense.
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There are three types of statutes authorizing enhanced sentences for recidivist offenders: the general habitual offender statute, specialized habitual offender statutes, and progressive penalty statutes. Downey, 770 N.E.2d at 795-96. The general habitual offender statute, Ind. Code § 35-50-2-8 (2008), authorizes a sentencing enhancement of up to 30 years where the defendant has been convicted of three “unrelated” felonies. Downey, 770 N.E.2d at 795. Specialized habitual offender statutes authorize sentencing enhancements where the defendant has been convicted of a certain number of similar offenses. Id. at 795-96; see, e.g., Ind. Code § 35-50-2-10 (2008) (habitual substance offenders); id. § 35-50-2-14 (repeat sex offenders); Ind. Code § 9-30-10-4 (2010) (habitual traffic violators). And progressive-penalty statutes, which are the most specialized, elevate the level of an offense (with a correspondingly enhanced sentence) where the defendant previously has been convicted of a particular offense. . . . .
The general rule is that, “absent explicit legislative direction, a sentence imposed following conviction under a progressive penalty statute may not be increased further under either the general habitual offender statute or a specialized habitual offender statute.” Id. at 796 (emphasis in original). . . . Similarly, a conviction under a specialized habitual offender statute cannot be further enhanced under the general habitual offender statute in the absence of explicit legislative direction. . . . .
Applying this analysis here, Dye’s habitual-offender enhancement violated the rule against double enhancements. First, the SVF statute under which Dye was convicted is a progressive-penalty statute. Mills, 868 N.E.2d at 449 [footnote omitted]; Conrad v. State, 747 N.E.2d 575, 594 (Ind. Ct. App. 2001), trans. denied; see also Beldon, 926 N.E.2d at 483 (“In Mills, the initial charge had been elevated using a progressive penalty statute.” (citation omitted)).
Second, the general habitual offender statute does not include explicit legislative direction indicating that a double enhancement is proper here. . . . .
Rucker and David, JJ., concur.
Dickson, C.J., concurs, noting that, notwithstanding Justice Massa’s informative and persuasive dissent, I prefer to adhere to our existing controlling precedent of Mills v. State, 868 N.E.2d 446 (Ind. 2007), to which the Legislature has not responded with any contrary explicit legislative direction.
Massa, J., dissents with separate opinion:
As I read it, the serious violent felon statute is not a progressive penalty statute and therefore is not subject to the general prohibition against double enhancement. Even assuming it was, though, I believe Indiana’s General Assembly has provided sufficient guidance that a habitual offender sentencing enhancement is permissible.
These reasons are explained in greater detail below, and lead me to respectfully dissent.