DIXON, Chief Justice.
In a second offender hearing, defendant, over counsel's objection, was required to testify about an earlier out-of-state conviction, without having been cautioned about his rights. His prior sentence for simple robbery was set aside, and defendant was sentenced to twenty-four years at hard labor.
We find the twenty-four year sentence illegal, because it exceeds the maximum sentence provided in R.S. 14:65, and that defendant's compelled testimony about his earlier conviction was illegally obtained.
The robbery for which Johnson was convicted occurred on November 27, 1979. On that date, Article 65 of the Criminal Code, having been amended by Act 134 of 1977, provided for a maximum of seven years for simple robbery. The habitual offender statute (R.S. 15:529.1) provides for a maximum sentence to be "not more than twice the longest term prescribed for a first conviction."
At the habitual offender proceeding, there was no evidence adduced by the state that the defendant was the same person as the Eddie Lee Johnson who had been convicted
The protection of the Fifth Amendment is much broader than that contemplated by the prosecution. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). Article I, § 16 of the Louisiana Constitution provides: "No person shall be compelled to give evidence against himself." The right against self-incrimination does not depend on the nature of the proceedings.
Regarding the type of proceedings to which the right against self-incrimination adheres, the United States Supreme Court in McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924), stated:
This section of the statute clearly recognizes that the defendant, if he chooses, has the right to remain silent. Once the defendant chooses to remain silent the state must then by competent evidence prove the elements of R.S. 15:529.1 before the defendant can be sentenced as an habitual offender. Before the defendant chooses to acknowledge or confess in open court that he has been previously convicted of a felony, the statute requires that he first be cautioned by the trial court as to his rights. R.S. 15:529.1(D) specifically provides that defendant be advised by the court of his right to a "formal hearing" and to have the state prove its case. State v. Martin, 427 So.2d 1182 (La.1983). Further, this section implicitly provides that the defendant should be advised, by the court, of his statutory right to remain silent.
The trial court at mid-hearing arraigned Johnson and accepted his not guilty plea, satisfying the requirement of R.S. 15:529.1(D) that the trial court "require the offender to say whether the allegations are true." After pleading not guilty Johnson no longer was required to speak and should not have been compelled to present evidence against himself.
In the present case the trial court did not advise Johnson of his right to remain silent. Without such advice Johnson's acknowledgment or confession of his prior felony conviction in Missouri is invalid.
Since there was no admissible evidence offered by the state to prove that Johnson was the same person convicted in Missouri, the state failed to prove the essential elements of R.S. 15:529.1, and the case must be remanded. Defendant is not protected by principles of double jeopardy from being tried again on the question of the prior felony conviction. State v. Hill, 340 So.2d 309 (La.1976); see State v. Stott, 395 So.2d 714 (La.1981).
For the reasons assigned, the ruling of the district court is reversed, defendant's sentence is vacated, and the case is remanded to the trial court for resentencing in proceedings not inconsistent with this opinion.
LEMMON, J., concurs and assigns reasons.
LEMMON, Justice, concurring.
Since defendant clearly had the statutory right to remain silent and require the prosecution to prove the fact of a prior conviction, it is not necessary to reach the constitutional issue.