WILLIAM E. DOYLE, Circuit Judge.
INTRODUCTORY STATEMENT
Following his conviction of the charge of forgery in two counts the defendant-appellant Linam was sentenced to two consecutive two to ten year terms in the state penitentiary of the State of New Mexico. Subsequent to that the state filed a supplemental information charging Linam as an habitual criminal pursuant to the N.M.Stat.Ann. § 31-18-5 (1978), which provides that:
Any person who, after having been convicted within the state of a felony or who has been convicted under the laws of any other state government or country, of a crime or crimes which if committed within this state would be a felony, commits any felony within this state not otherwise punishable by death or life imprisonment, shall be punished as follows:
A. Upon conviction of such second felony, if the subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a term not less than half the longest term, nor more than twice the longest term prescribed upon a first conviction.
B. Upon conviction of such third felony, if the subsequent felony is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a term not less than the longest term, nor more than three times the longest term prescribed upon a first conviction;
C. Upon conviction of such fourth felony, then such person must be sentenced to imprisonment in the state penitentiary for the term of his natural life.
The habitual offender hearing was held after his conviction and sentence to the two consecutive two to ten year terms for forgery. The jury found him to be the same person who was convicted of three prior felonies along with the two counts of forgery. There is nothing in the record as to the nature of the prior convictions.
Under § 31-18-5C Linam was given a life sentence and the forgery sentences were vacated. However, Linam appealed the conviction to the New Mexico Supreme Court, State v. Linam, 93 N.M. 307, 600 P.2d 253 (1979). His position there was that the state had the burden of proving that he had committed each felony after conviction for the preceding felony. At the habitual offender hearing, the state introduced photographs and fingerprint cards from the state penitentiary as to each of the three prior felonies, as well as certified copies of each judgment and sentence from 1962, 1968 and 1973. The prosecutor who tried Linam on the forgery counts testified that Linam was the same person who was convicted on those counts. The testimony of the records supervisor of the prison was that the photographic records from the pri- or convictions were those of the Harry Linam then being charged as an habitual of[371]*371fender. Finally, the fingerprint expert stated that the prints he took at this hearing were those of the man convicted who was sentenced for the three prior felonies, by comparison to the prints in the past convictions. The state did not present evidence of the dates of commission of the prior felonies.
On the appeal referred to immediately above in the New Mexico Supreme Court it appeared that the question whether it must be proved that each felony was committed after conviction for the preceding felony was a question of first impression. Based on this the court reversed and remanded to the trial court for a second habitual offender hearing based on this new interpretation of the habitual offender statute. The Supreme Court found that no double jeopardy existed and as a result remanded the ease for a second proceeding and based this on the fact that the habitual criminal adjudication did not constitute guilt of an offense. 600 F.2d at 256. Linam petitioned for rehearing on the efficacy of the remand citing the double jeopardy prohibition articulated in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Final judgment was entered and Linam’s petitions for rehearing and subsequently for certiorari to the United States Supreme Court were filed. Both petitions were denied. Linam v. New Mexico, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979).
After that, based on his belief that the Constitution had been violated, Linam filed the present petition for habeas corpus in the Federal District Court for New Mexico claiming that the state supreme court’s remand had placed him twice in jeopardy in violation of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969).
After the filing of the habeas petition Linam was adjudged an habitual offender at the second proceeding and was given a life term. The federal district court dismissed the habeas petition stating that the double jeopardy contention lacked merit. The present appeal followed.
THE ISSUE
The issue to be determined is whether the double jeopardy clause of the fifth amendment bars a remand following appeal directed at obtaining evidence as to the dates of the prior commission of crimes in order to satisfy the interpretation of the New Mexico habitual criminal statute that there be proof that each felony was committed after conviction for the preceding felony.
The New Mexico habitual criminal statute § 31-18-7, now cited as 31-18-20, sets forth the procedural requirements to be followed where the defendant who is accused of a felony is charged under the Habitual Criminal Act. The custom in New Mexico is to proceed on a bifurcated basis. Following the conviction of a felony offense, where the defendant has at least one prior conviction of a felony, the district attorney must file a supplemental information and hold a jury hearing on the issue of commission by the defendant of the prior offenses. The habitual offender hearing may be held immediately after the trial on the substantive or “triggering” offense or it may be held in front of a new jury even some months after the substantive conviction. See e.g., State v. Garcia, 95 N.M. 246, 620 P.2d 1271 (1980); State v. Valenzuela, 94 N.M. 340, 610 P.2d 744 (1980).
Section 31-18-7 which sets forth the proceedings in habitual criminal cases provides for a second hearing following convictions on the issue of proof of prior offenses. In essence, it says:
The court in which a person has been convicted of a felony and charged as an habitual offender under the provisions of Sections 29-5 and 6 shall cause such defendant, whether confined in prison or otherwise, to be brought before it, and the court then informs him of the allegations contained in the information and of his right to have a trial as to the truth of the contention that he is the man named in the prior convictions and he is then asked whether he is the same person who is charged in the information. If he de[372]*372nies it or refuses to 'answer or remains silent, his plea or the fact of his silence are entered of record and a jury is empaneled to inquire if the offender is the same person mentioned in the several records. If the jury finds that the defendant is the same person and that he has in fact been convicted of such previous crimes as charged, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, and that he has in fact been convicted of such crimes as charged, in that event the court shall sentence him to the punishment as prescribed in Section 29-5 [31-18-5 NMSA 1978] and thereupon the court deduct from the new sentence all time actually served on the next preceding sentence and the remainder of the two sentences shall run concurrent.
The hearing has to comply with the speedy trial requirement, that is, it must have been held within six months of the supplemental information. State v. Lopez, 89 N.M. 82, 547 P.2d 565 (1976). The jury must decide whether the defendant is the same person from the evidence presented. They are then presented with evidence as to the prior felonies and evidence that the accused on trial committed the prior offenses. The enhanced sentence follows without mitigation, save for the time already served.
New Mexico’s position is that the Habitual Criminal Act does not create a new offense, that it merely increases the sentence. State v. Nelson, 96 N.M. 654, 634 P.2d 676 (1981); State v. James, 94 N.M. 604, 614 P.2d 16 (1980). But many of the protections which are given to a defendant at trial are extended at this hearing. He has a right to counsel and, in addition, he is entitled to be present in accordance with state Rule 47(a), allowing the defendant to be present at every stage of the trial. This includes the voir dire of the jury picked for the habitual criminal hearing. State v. Garcia, 95 N.M. 246, 620 P.2d 1271 (1980). The New Mexico law calls for the application of criminal trial procedures insofar as possible. State v. Silva, 78 N.M. 286, 430 P.2d 783, 785 (Ct.App.1967).
There are no guides in New Mexico law on the quantum of evidence required for a jury finding that proves the validity of the past convictions and the identity of the accused. The majority rule appears to require that proof under the habitual offender statute be established beyond a reasonable doubt. See, e.g., People v. Casey, 399 Ill. 374, 77 N.E.2d 812 (1948); State v. Post, 251 Iowa 345, 99 N.W.2d 314 (1959); People v. Reese, 258 N.Y. 89, 179 N.E. 305 (1932). This, however, is not a problem here because the defendant has been shown to be the identical person who was previously convicted and that is all that is needed. The habitual criminal offender under the Act, is not required to have a preliminary hearing.
The narrow issue here concerns whether double jeopardy arises from the remand to ascertain the time of the prior offenses. If the procedure which was followed in New Mexico is at odds with the fifth amendment’s double jeopardy prohibition, the writ of habeas corpus would issue. We hold that it is not.
THE BURKS ARGUMENT
Appellant here relies on the language of the New Mexico Supreme Court that the government failed to prove that the defendant was an habitual criminal because there was a lack of substantial evidence. State v. Linam, 93 N.M. 307, 600 P.2d 253, 256. The argument of Linam is that double jeopardy attaches at a habitual offender hearing and that Burks v. United States, supra, holds that one cannot be retried when an appellate court determines that there was insufficient evidence to convict. We conclude that this case does not fall within the boundaries set by this case, even were one to assume that double jeopardy attaches in such a proceeding. Frequently it has been held that no prohibition exists against retrying a defendant who overturns his convictions. E.g., North Carolina v. Pearce, 395 U.S. 711, 719-20, 89 S.Ct. 2072, 2077-78, 23 L.Ed.2d 656 (1969); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 [373]*373L.Ed.2d 448 (1964); United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). One recent exception to this statement is the ruling of the Supreme Court in Burks, supra. Burks stands for the proposition that where a conviction is reversed for insufficient evidence the defendant cannot be retried, unlike the treatment of a reversal for trial error. Burks argued in the circuit court that his insanity defense following a robbery of a bank with a dangerous weapon should have caused his acquittal because the government failed to prove sanity beyond a reasonable doubt. The appellate court accepted Burks’ position but remanded for a new trial. The Court held that Burks could not be retried because the failure to comply with the established rule on proving sanity beyond a reasonable doubt once a prima facie case of insanity is made out acted as an implicit acquittal, i.e., if the trial court had properly applied the established rule Burks would have been acquitted. United States v. Ball was distinguished as involving trial error, namely the failure to dismiss a faulty indictment.
A reversal for trial error does not constitute a decision that the government has failed to prove its case; therefore one can be retried if a conviction is reversed on such a ground. The Court in Burks gave examples of trial court error; incorrect receipt of evidence, incorrect rejection of evidence, incorrect instruction and prosecutorial misconduct. United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896), was merely distinguished and not reversed by the Burks court because “[it] would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Tateo, 377 U.S. at 466, 84 S.Ct. at 1589.
The ruling in Burks was that the prosecution had failed to comply with the rule then established that the burden was on the government to prove sanity, a rule set down in United States v. Smith, 437 F.2d 538 (6th Cir. 1970).
In Linam the court held as a matter of first impression that New Mexico was obligated to prove in an habitual offender hearing that the commission of every felony occurred after the preceding felony conviction. How does this decision differ from that in Burks? It differs because it is merely a formal matter, not a substantive one such as was present in Burks. The rationale is that habitual offender sentences deter commission of subsequent offenses and there is no deterrence when one has never yet been convicted and punished for an earlier offense. The majority view in other states has been that the commission dates as well as the conviction dates have to be introduced in order to show the sequence.1 There is no problem of whether to produce evidence. The evidence is a matter of record. It waits to be presented properly so that the order of the convictions can become part of the record. It appears that this has never previously been the rule in New Mexico, whereas other states have held to it although there has been a minority view that prior offenses need not be shown to have been committed after conviction for the preceding offense, which admittedly is not a very good rule.
So, the New Mexico decision in Linam is not one in which the defendant would have been acquitted because the standard was then unknown. It was a new development. Appellant admitted as much as petitioner in certiorari, that prior to Linam New Mexico courts had not required proof that the commission of prior felonies occurred after the immediately preceding conviction.
The conclusion to be drawn is that the New Mexico Court of Appeals’ interpretation of § 31-8-5 meets the Burks Court’s definition of trial error and is not a true finding of inadequacy of evidence. The Linam decision cannot be interpreted as saying that the prosecution put on all the evidence it had and came up short, or that [374]*374there was a negligent failure to carry the burden of proof. Instead it is closer to a reversal and retrial where the trial court has incorrectly excluded evidence, than it is to a finding that the state had its “one bite from the apple” and it failed to meet the burden of proof.
Thus, double jeopardy does not bar retrial when evidence is incorrectly excluded, 437 U.S. at 15-16, 98 S.Ct. at 2149. It cannot be said that the prosecution is deprived of its opportunity to present its evidence. The Linam holding was applied retroactively to Linam but the procedure adopted in New Mexico was that the Linam case is to be applied prospectively, State v. Valenzuela, 94 N.M. 340, 610 P.2d 744 (1980). This demonstrates that the decision in Linam was not the result of the state’s negligently failing to muster its proof. Rather the holding was that the state must henceforth prove the sequence of the commission of convictions.
THE DiFRANCESCO DECISION AS AN ALTERNATIVE BASIS FOR DECISION
In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the issue was whether the government could appeal under 18 U.S.C. § 3576 a judicial increase of a sentence following the court’s finding that the convicted defendant was a “dangerous special offender” pursuant to 18 U.S.C. § 3575. Justice Blackmun in the majority opinion wrote that the government’s appeal of the trial judge’s sentence under § 3575 was not barred by the double jeopardy clause. The opinion stated that historically sentencing per se had not carried the same finality as the judgment of guilt or innocence on the merits. It is the judgment on the merits that triggers the fifth amendment’s double jeopardy protection. 101 S.Ct. at 435. The Supreme Court discussed the same issue which now confronts this court and gave a conclusion which we regard as a proper one. This is as follows:
[O]ur task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal. We conclude that neither the history of sentencing practices, nor the pertinent rules of this Court, nor even consideration of double jeopardy policy support such an equation. 101 S.Ct. at 435.
The context in which the double jeopardy issue arose in the DiFrancesco case required a bench hearing on the enhanced sentence pursuant to the “dangerous special offender” statute. The judge determines if the defendant is a dangerous offender by a preponderance of the evidence based on trial evidence, the presentence report and added evidence bearing on the sentencing. This is not considered to be an ingredient of the judgment on the merits — one capable of barring a further hearing on the subject.
In the Habitual Criminal Act of New Mexico there is no consideration of intrinsic merits. The Federal Special Offender Act, judged by the proceedings in DiFrancesco, could be said to have some resemblance to a trial. The Court has latitude in sentencing the special offender. The maximum term is 25 years. On the other hand the New Mexico procedure requires jury sentencing and under § 31-18-5C if the jury finds the defendant to be an habitual offender with four felonies, he automatically receives a life sentence. We stress the distinctions only because they show that the New Mexico procedure tends to be a formality which bears little resemblance to a trial.
The most recent sentencing case before the Supreme Court was Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). Involved there was the application of double jeopardy to the Missouri capital sentencing procedure. In that instance the defendant had been convicted of murder. Following that, in a bifurcated sentencing proceeding, the jury determined that Bullington should be sentenced to life imprisonment without parole. Under the statute the jury must make this determination and must select between the death penalty and life imprisonment. Defendant’s motion for a new trial was granted [375]*375because of Sixth Amendment violations in the jury selection process. Upon retrial the state again sought the death penalty. On appeal it was argued on behalf of Bulling-ton that the jury’s first sentence of life imprisonment prohibited a death penalty sentence; that it barred the state from again seeking the death penalty. In effect, then, the verdict constituted an acquittal as to the death penalty. The Supreme Court agreed with this result. In effect it applied Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) to sentencing. Green held that once convicted of a lesser included offense a defendant who obtains a new trial is not to be tried on the greater charge.
The Supreme Court, speaking through Justice Blackmun, ruled that the sentencing hearing in Bullington resembled a trial; a trial upon the issue of punishment. Id. 101 S.Ct. at 1858. The Supreme Court did not, however, hold that there could not be a further trial. It ruled out death as a penalty-
This concept of an acquittal of a potential death penalty is inapplicable to the habitual criminal proceedings, for in the latter situation there exists no basis for a jury verdict of “acquittal”. The habitual criminal status is not a conviction of a distinct crime. Indeed, a conviction on the merits has occurred and the crime convicted of is unrelated to the Habitual Criminal Act which produces not a judgment of guilt of the offense, but rather an enhanced sentence. See Davis v. Bennett, 400 F.2d 279, 282-83 (8th Cir. 1968), cert. denied, 395 U.S. 980, 89 S.Ct. 2137, 23 L.Ed.2d 768 (1969).
The Supreme Court’s treatment in Bullington of the DiFrancesco decision is pertinent. The review provided under 18 U.S.C. § 3575-76 differs greatly from that which was applicable to the Missouri statute. The review described under § 3576 does not include a second opportunity to convince another factfinder as was the case in Bulling-ton. The sentencing under § 3575 is much closer to the general proceeding in which a full-blown sentencing hearing is held than to the bifurcated Missouri procedure requirement. Also the burden of proof differs in the two proceedings. Section 3575 allows the federal judge to determine the dangerous special offender status by the civil preponderance standard.
The proceedings in Bullington included a consideration by the jury of the facts bearing on guilt or innocence. This aspect serves to differentiate a case like the present one in which the increased sentence has nothing to do with the basic cause being tried. Thus there is a qualitative and quantitative difference. The death penalty is a part of the offense of murder. This uniqueness of the- death penalty unquestionably serves to distinguish DiFrancesco from Bullington. Cf. Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (because of the qualitative difference between the death penalty and other penalties the due process concerns are more strictly scrutinized). We hold that the DiFrancesco case is more applicable to the New Mexico habitual offender proceeding with which we are faced than is Bullington. See 101 S.Ct. at 1859, n. 15.
Mr. Justice Powell’s dissent in Bullington brought out the fact that it marked the first time that the double jeopardy principle had been applied to sentencing; in the past the Court had considered a qualitative difference to exist between a trial on the issue of guilt or innocence and sentencing. Eg., DiFrancesco, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); 101 S.Ct. at 1863.
Inasmuch as Bullington has departed from the Court’s prior view of sentencing and was decided very soon after DiFrancesco, it is logical to conclude that it was the fact that punishment was part and parcel of the role the jury played which accounted for the different results. It would have been difficult, if not impossible, to treat the Bullington judgment as if it were a bifurcated procedure. In truth, the elements of the merits and the sentencing were wedded.
' We need not go beyond the comparisons which are made above. The conclusion is [376]*376clear that this case should be governed by DiFrancesco rather than Bullington.
CONCLUSION
In summary, then, we conclude that the jeopardy problem is not present in the instant case, whether the DiFrancesco approach or that in Burks is followed. It is not true that the government had its chance and failed to prove the case properly. Instead the situation is that the New Mexico court remanded this on a prospective basis and with a complete belief that the deficiency could be remedied. Considering the fact that this can in no way be considered a guilt or innocence adjudication, it is almost like sending it back to mend the record. Moreover and alternatively, the habitual criminal proceeding in New Mexico, and other places as well, involves, first of all, the trial on the charge that is set forth in the information but only if there is a conviction, the subsequent proceedings take place. That is, a supplement to the indictment is filed which alleges the previous convictions; then comes the hearing to ascertain whether the sentence is subject to being enhanced. And the proceeding that follows is an inquiry as to whether or not the man standing before the court is the same person who was previously convicted as charged. The jury answers yes or no in accordance with the evidence. This is not the kind of adjudication that is referred to in the fifth amendment.
For all of these reasons, the judgment of the district court should be and the same is hereby affirmed.