concurrence">GIVAN, Justice,

concurring in result.

I concur in result in the denial of appellant’s petition for rehearing. However, I would make' the following observations. Cooper v. State (1972), 259 Ind. 107, 284 N.E.2d 799 was decided correctly on the facts of that case. While awaiting trial for burglary, Cooper escaped and was recaptured and charged with jailbreak. He subsequently pled guilty to both charges and was sentenced simultaneously on both charges by the trial court. This Court properly held that this did not comply with the statute then in force, Ind.Code § 35-8-8-1, which required that in order to be found a habitual offender, the defendant must be found to have been twice convicted and incarcerated on previous felonies.

The .facts in Coopershow that he was incarcerated simultaneously for both crimes. Although the case states in dictum that the second offense must have been committed after the incarceration on the first offense, the statute then in force contained no such language. In examining the cases decided under the prior statute, I find no instance where the allegation or the proof placed any emphasis upon when either of the two prior felonies was committed. The only requirement was for prior separate convictions and incarcerations. The present statute, Ind.Code § 35-50-2-8, follows in subsection (b) the dictum in Cooper; thus such a requirement now is mandated.

In view of the change in the statute, this matter presently is of little moment. Nevertheless, I make these observations on the outside chance that this issue may arise in a future attempt to set aside a conviction under the old statute.

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