Mitchell v. State
781 P.2d 331
Okla. Crim. App.
1989
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OPINION

PARKS, Presiding Judge:

Appellant, Anthony Wendell Mitchell, was tried by jury and convicted of Second Degree Burglary (21 O.S.1981, § 1435), After Former Conviction of Two Felonies (21 O.S.Supp.1985, § 51), in Tulsa County District Court, Case No. CRF-87-1440, before the Honorable Jay Dalton, District Judge. The jury set punishment at twenty-five (25) years imprisonment. Judgment and sentence was imposed accordingly. We affirm as modified.

A recitation of the facts is unnecessary as we find merit in appellant’s claim that the trial court committed fundamental error in failing to instruct the jury on the appropriate burden of proof standard in the punishment stage. Although the trial court’s instructions required the State to meet “its burden of proof” of establishing one or both of the prior felony convictions, nowhere in the second stage instructions *332was the standard of proof, i.e., beyond a reasonable doubt, specified.

“In a prosecution where enhanced punishment for a subsequent offense is sought, the burden is on the State to prove the prior conviction[s] beyond a reasonable doubt. Johnson v. State, 79 Okl.Cr. 71, 151 P.2d 801 (1944). A correct instruction on the burden of proof is a fundamental requirement.” Mitchell v. State, 659 P.2d 366, 370 (Okla.Crim.App.1983). While the omission of the standard of proof may have been inadvertent, we cannot presume the jury applied the correct standard. See Pierce v. State, 766 P.2d 365, 366-67 (Okla.Crim.App.1988). Because the jury was not properly instructed on the applicable burden of proof standard, we hold the sentence must be reduced from the enhanced penalty to a term of seven (7) years imprisonment which is within the range of punishment for second degree burglary without enhancement. See 21 O.S.1981, § 1435.

The judgment and sentence is AFFIRMED as MODIFIED.