#### David Paul LENION, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-86-193.

Court of Criminal Appeals of Oklahoma.

Oct. 12, 1988.

*382David Autry, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

The appellant, David Paul Lenion, was tried by jury and convicted of Second Degree Burglary (21 O.S.1981, § 1435), After Former Conviction of a Felony (21 O.S. 1981, § 51) in Comanche County District Court, Case No. CRF-84-485, before the Honorable J. Winston Rayburn. He was sentenced to ten (10) years imprisonment, with six (6) years suspended. We reverse and remand for a new trial.

In his second assignment of error, appellant contends that the trial court committed reversible error in failing to conduct a bifurcated trial. We agree. Title 22 O.S. 1981, § 860 states in pertinent part:

> In *all*cases in which the defendant is prosecuted for a second or subsequent offense, except in those cases in which former conviction is an element of the offense, the procedure *shall*be as follows:

> (a) The trial *shall*proceed initially as though the offense charged was a first offense; when the indictment or information is read all references to prior offenses *shall*be omitted; during the trial of the case no reference *shall*be made nor evidence received of prior offenses except as permitted by the rules of evidence; the judge *shall*instruct the jury only on the offense charged; the jury *shall*be further instructed to determine only the guilt or innocence on the offense charged, and that punishment at this time *shall*not be determined by the jury, (emphasis added)

The word “shall” is generally construed as mandatory, and not permissive. *See Burrell v. Turner Corp. of Okla., Inc.,*431 F.Supp. 1018, 1020 (N.D.Okla.1977); *Sneed v. Sneed,*585 P.2d 1363, 1364 (Okla.1978). *Nickell v. State,*746 P.2d 1155, 1158 (Okla.Crim.App.1987). *Accord Black’s Law Dictionary*1233 (5th ed. 1979). Nothing in the language of Section 860 indicates that the Legislature intended a different construction of “shall” to apply here.

Appellant was charged with Second Degree Burglary of an Automobile, After Former Conviction of a Felony. *See*21 O.S.1981, §§ 51,1435. Because proof of a former felony conviction is not a necessary element of Second Degree Burglary under Section 1435, the one-stage proceeding held in this case was inappropriate, and contrary to the express requirements of Section 860. *Cf. Hoover v. State,*738 P.2d 943, 946 (Okla.Crim.App.1987) (one-stage proceeding proper where former conviction is an element of the offense charged). Accordingly, under the mandatory language of Section 860, in the absence of a knowing and voluntary waiver, the trial court had an affirmative duty to hold a bifurcated proceeding.

*383Prior case law holds that an accused waives his right to a bifurcated trial by failing to file a motion requesting the same prior to entering a plea. *See Hoover v. State,*738 P.2d 943, 946 (Okla.Crim.App.1987); *Isom v. State,*646 P.2d 1288, 1291 (Okla.Crim.App.1982); *Birch v. State,*603 P.2d 1161, 1162 (Okla.Crim.App.1979); *Williams v. State,*565 P.2d 46, 49 (Okla.Crim.App.1977). These cases place a burden on the accused which is nowhere found in the language of the statute. Such a judicial gloss cannot be squared with the mandatory language of Section 860, which is ignored by these cases. We hold that a trial judge has an affirmative duty to conduct a birfurcated trial, regardless of whether a defendant has filed a motion for such prior to entering a plea, in all cases in which a defendant is prosecuted for a second or subsequent offense, except where former conviction is an element of the offense charged. 22 O.S.1981, § 860. *Cf. Scott v. State,*730 P.2d 7, 8 (Okla.Crim.App.1986) (post-examination competency hearing mandated by statute even in absence of request). To the extent that *Hoover, Isom, Birch, Williams,*and any other prior cases are inconsistent with our holding today, they are hereby expressly overruled.

Here, in direct violation of Section 860, the jury was instructed during the guilt-innocence stage that appellant was charged with Second Degree Burglary, After Former Conviction of a Felony. Thus, we believe prejudicial error occurred. In the absence of a knowing and voluntary waiver of this mandatory bifurcated statutory procedure, we find that appellant is entitled to a new trial.

The judgment and sentence is REVERSED and REMANDED for a NEW TRIAL consistent with the views expressed herein.

BRETT, P.J., concurs.

BUSSEY, J., dissents.