renders avoid any conviction for any defendant so therefore it renders void a conviction for defendants like birds because they had a prior felony did not have second amendment rights indeed the state's rehearing in aguilar recognizes that is the effect of the decision but in this court the state argues inconsistently the  opposite it's arguing that because of the enhanced minute based on the prior felony that somehow burns was convicted of a different offense even though it was the same subsections as a will or defend r the so the court the state is incorrectly equating a sentencing enhanced provision with an element of the offense the prior felon status is not mentioned as an element it only appears in these crowd judge recognizing and stating it was not an element of the offense did not allow that evidence to come in substantively so the the evidence of the other convictions for the other  charges he was acquitted on those argument to the trial court that one conviction was under an alias and the court said the state had not proved that beyond a reasonable doubt and that was the basis for the acquittal of the unlawful new offense and quote so similarly here a sensing factor of prior felony does not create a different offense of aggravated you w burns was convicted and sentenced under the exact same subsections as from exercising the second amendment rights as with the statutory ban on all persons exercising constitutional right is is facially invalid of the state argues it can be validly applied to defendants with prior avoided yeah you should decide a case not based on a based on a non constitutional basis that's correct but part of the argument that we're making is based on which held that the statute is unconstitutional in fact it's interesting to note that that larger than it was seventeen years old and the second part of the opinion the court said minors you not have second amendment rights approach to the state's petition for rehearing they're asking this court to refrain and crean in order until supreme court makes determination one way or another appropriate i'm concerned i have acquired who's been in jail in prison for about three years for what i consider i mean based on aguilar's and nonexistent and that is there anything that third it was the only case and the court's rehearing docket in the november term in the courts of that act of violence it is still pending they have not requested a response in my experience it is unusual for the court to nat act upon a petition for a hearing when it's pending before it so beyond that i have no additional information like counsel i am eagerly anticipating the outcome reputation for hearing but it's it's a response to the defense emergency motion for release we recognize that as well are held that a conviction under a three day is void with that we we don't dispute that what we've offered in response is the same arguments that we've offered to the supreme court which is maybe it's not officially unconstitutional because it can be applied under the plain language of the statute in a lawful manner in the reason i say the plain language of the statute is now because the elements which are found in subsection a three day book because the statute itself twenty four different point six specifically includes references to defendants with prior convictions it sets them out separately from all other defendants meaning a defendant who does not have a background is treated but being a felon in possession of a gun which is ready to be used in public it's a best buy we believe that the legislature here intended this to be applied in the proper manner in the f b i they set out in subsection d a separate to a minor so there the prosecution was arguing well fine the statute itself is is overly broad it applies to everything but look at this particular type of situation where could be applied it's different that's trying to take a set of facts and grafted onto the stage that's not what we're offering here what we're saying here is that the legislature identified a certain type of class of defendant under the statute legislation that included it in the plain language of the statute and that's how the statute is being awfully it to a felony aggravated dui in the question there was whether or not it was a new charge an entirely new case in which would there by trigger or not trigger a speedy trial to what the almost report said was it's the same facts it's just the aggravated version the same things but it's just not pertinent to this discussion here because there there was no question that they had found it could be prosecuted for any idea why it was a mystery and why it was just whether or not the prosecution had done it properly recognize to look back and say wait a minute in this instance legislature intended it to be applied separately and differently to people with criminal backgrounds with felony from the background and so therefore should be treated that is a face on history but in this limited in were to amend the argue the ruling in aguilar to make it as applied as we explain our preferred to explain in the petition for a hearing then certainly that would be appropriate to affirm in this situation if they don't rule in that way in the until the supreme court rules as i said at the beginning i'm a little bit it's a conundrum for me as to why they haven't ruled yet it indicates to me that they're seriously thinking about it beyond that i don't know what could possibly be going on but i don't know but i will the one thing i know for certain is that if this court were to rule either of us before the petition really is want you there us or the fans would file a petition for me to appeal to the supreme court subsections involved here no longer exist so if they don't exist there's no is that there's nothing to apply the sentencing in camps meant to the distinction of the van showing case