Rucker, J.
The record shows that arising out of a confrontation between Dye and an officer of the Elkhart Police Department on March 27, 1997, Dye was charged with Count I attempted murder; Count II possession of a handgun as a class C felony; Count III possession of a handgun within 1,000 feet of a school; and Count IV attempted battery while armed with a deadly weapon. Tr. at 504-508. On May 7, 1998 under cause number 20C01-9703-CF-00018 pursuant to the terms of a plea agreement, the State dismissed Count I and Dye pleaded guilty to Counts II thru IV. The trial court sentenced Dye to an eight-year concurrent term on each count. App. at 86-89. All three offenses arose out of one incident. Tr. at 507.
As we held in Mills 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, 868 N.E.2d at 447. Thus it is clear the State could not have relied on Dye’s 1998 conviction of attempted battery while armed with a deadly weapon as a predicate offense for the habitual offender adjudication, since that was the felony on which the State based the SVF charge. Rather, the State relied on another charge that arose out of and was a part of an “uninterrupted transaction” on which the SFV charge was based, namely Dye’s 1998 conviction for possession of a handgun within 1,000 feet of a school. This result contradicts the rule of lenity which we described in Ross v. State, 729 N.E.2d 113 (Ind. 2000):
[W]hen 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.” Also, “where there is ambiguity it must be resolved against the penalty . . . .”
Id. at 116 (internal citations omitted) (superseded by statute on other grounds). Were we to sanction the State’s charging decision in this case, it would amount to elevating form over substance. We agree with Judge May’s observation that it is incongruous to hold that “two offenses . . . 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.” Dye, 956 N.E.2d at 1175 (May, J., dissenting).
In sum, the State is 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.
Dickson, C.J., and David and Rush, JJ., concur.
Massa, J., concurs in part and dissents in part with separate opinion:
While I join my colleagues in clarifying that the original majority opinion in this matter did not extend Mills to situations where different prior unrelated convictions are used to establish an habitual offender finding and the elements of the Serious Violent Felon statute, I continue to dissent from the ultimate result on rehearing for reasons previously explained. Dye v. State, 972 N.E.2d 853, 859 (Ind. 2012) (Massa, J., dissenting).