OPINION
GALBREATH, Judge.
The defendant was convicted on one of three indictments charging burglary in the first degree. Punishment of from five to eight years in prison was fixed by the jury. He had been previously convicted on his pleas of guilty to the three indictments of third degree burglary and sentenced to consecutive terms in the penitentiary of from three to ten years. Upon successfully establishing that his pleas were entered under the mistaken impression that the sentences were to run concurrently the United States District Court for the Eastern Division of Tennessee ordered a new trial and the conviction under attack here resulted.
It is a primary insistence of the plaintiff in error that the increased sentence of not less than five years for the same activity formerly punished by a minimum sentence of not less than three years is impermissible. We agree, although not for the reasons set out in appellant’s brief which depend for support on the rationale of the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 as discussed by the United States District Court for the Middle District of Tennessee in Pendergrass v. Neil, 338 F.Supp. 1198 and the Sixth Circuit Court of Appeals at 456 F.2d 469 (1971). The restrictions against enhanced punishments on retrial following successful voidance of convictions on appeal have been held generally inapplicable to sentences imposed by juries vis a vis judges. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714.
The basis for the greater minimum punishment in this case was not in any manner the result of vindictiveness on the part of either judge or jury prompted by the defendant’s success in voiding the prior sentences. Rather it resulted from the law which fixes different minimum sentences for the offenses the defendant pleaded guilty to in the prior proceeding (burglary in the third degree — three years) and the offense specified in the indictment for which the jury in this litigation found guilt (burglary in the first degree — five years). Based on the criterion of punishment, the offense of first degree burglary is a greater offense than third degree burglary. This is logical since the unlawful entry into a dwelling house in the nighttime is generally regarded as more fraught with risk to the owners or occupants of such premises than is the felonious entry into a business establishment.
In a divided opinion of this Court in which Judge Oliver strenuously dissented, it was held that third degree burglary is an included offense under an indictment charging first degree burglary. See Silvers v. State, unpublished, Sullivan County, Tenn.Crim.Apps., filed April, 1968. The conviction under the indictment for third degree burglary would work as an acquittal of any higher degree of criminality embraced in the indictment.
“In many States it is held that a verdict of guilty of a lesser included offense on an indictment charging a more serious crime is an acquittal of all [?]*?grades of the offense above that of which the defendant was found guilty. Authorities from many States are collected in 61 A.L.R.2d 1141. Since 1957, with the decision of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L. Ed.2d 199, this has become the rule in the Federal Courts. This rule has obtained in Tennessee from the beginning of our jurisprudence, State v. Norvell, 10 Tenn. 24, to the present time, Saunders v. State, 208 Tenn. 347, 345 S.W.2d 899.”
King v. State, 216 Tenn. 215, 391 S.W. 2d 637.
Even if not an included offense the conviction for third degree burglary would make invalid infliction of punishment based on prosecution for a greater offense under a recent decision of the United States Supreme Court. In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed. 2d 628 the conviction was for a misdemeanor and the defendant sought to pursue his right to appeal and a trial de novo. In the subsequent prosecution the offense charged was a felony based on the same activity; the misdemeanor, assault with a deadly weapon, was altered after appeal to assault with intent to kill, a felony. Although the situation here involved two felonies, inasmuch as one is of a more serious nature carrying a more severe minimum punishment, the same rationale should and does govern both cases. In Blackledge, the United States Supreme Court said:
“The Pearce decision was again interpreted by this Court last Term in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, in the setting of Georgia’s system under which sentencing responsibility is entrusted to the jury. Upon retrial following the reversal of his original conviction, the defendant in Chaffin was reconvicted and sentenced to a greater term than had been imposed by the initial jury. Concentrating again on the issue of vindictiveness, the Court found no violation of the Pearce rule. It was noted that the second jury was completely unaware of the original sentence, and thus could hardly have sought to ‘punish’ Chaffin for his successful appeal. Moreover, the jury, unlike a judge who had been reversed on appeal, could hardly have a stake in the prior conviction or any motivation to discourage criminal defendants from seeking appellate review. Hence, it was concluded that the danger of vindictiveness under the circumstances of the case was ‘de minimis,’ id., 412 U.S. at 26, 93 S.Ct. at 1982, and did not require adoption of the constitutional rule set out in Pearce.
“The lesson that emerges from Pearce, Colten, [Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584] and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a likelihood of ‘vindictiveness.’ Unlike the circumstances presented by those cases, however, in the situation here the central figure is not the judge or the jury, but the prosecutor. The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. We conclude that the answer must be in the affirmative.
“A prosecutor clearly has a considerable stake in discouraging convicted mis-demeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prose-cutorial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted defendant going free. And, if the prosecutor has the means readily at hand to discourage such appeals — by ‘upping the ante’ through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defend[54]
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OPINION
GALBREATH, Judge.
The defendant was convicted on one of three indictments charging burglary in the first degree. Punishment of from five to eight years in prison was fixed by the jury. He had been previously convicted on his pleas of guilty to the three indictments of third degree burglary and sentenced to consecutive terms in the penitentiary of from three to ten years. Upon successfully establishing that his pleas were entered under the mistaken impression that the sentences were to run concurrently the United States District Court for the Eastern Division of Tennessee ordered a new trial and the conviction under attack here resulted.
It is a primary insistence of the plaintiff in error that the increased sentence of not less than five years for the same activity formerly punished by a minimum sentence of not less than three years is impermissible. We agree, although not for the reasons set out in appellant’s brief which depend for support on the rationale of the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 as discussed by the United States District Court for the Middle District of Tennessee in Pendergrass v. Neil, 338 F.Supp. 1198 and the Sixth Circuit Court of Appeals at 456 F.2d 469 (1971). The restrictions against enhanced punishments on retrial following successful voidance of convictions on appeal have been held generally inapplicable to sentences imposed by juries vis a vis judges. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714.
The basis for the greater minimum punishment in this case was not in any manner the result of vindictiveness on the part of either judge or jury prompted by the defendant’s success in voiding the prior sentences. Rather it resulted from the law which fixes different minimum sentences for the offenses the defendant pleaded guilty to in the prior proceeding (burglary in the third degree — three years) and the offense specified in the indictment for which the jury in this litigation found guilt (burglary in the first degree — five years). Based on the criterion of punishment, the offense of first degree burglary is a greater offense than third degree burglary. This is logical since the unlawful entry into a dwelling house in the nighttime is generally regarded as more fraught with risk to the owners or occupants of such premises than is the felonious entry into a business establishment.
In a divided opinion of this Court in which Judge Oliver strenuously dissented, it was held that third degree burglary is an included offense under an indictment charging first degree burglary. See Silvers v. State, unpublished, Sullivan County, Tenn.Crim.Apps., filed April, 1968. The conviction under the indictment for third degree burglary would work as an acquittal of any higher degree of criminality embraced in the indictment.
“In many States it is held that a verdict of guilty of a lesser included offense on an indictment charging a more serious crime is an acquittal of all [?]*?grades of the offense above that of which the defendant was found guilty. Authorities from many States are collected in 61 A.L.R.2d 1141. Since 1957, with the decision of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L. Ed.2d 199, this has become the rule in the Federal Courts. This rule has obtained in Tennessee from the beginning of our jurisprudence, State v. Norvell, 10 Tenn. 24, to the present time, Saunders v. State, 208 Tenn. 347, 345 S.W.2d 899.”
King v. State, 216 Tenn. 215, 391 S.W. 2d 637.
Even if not an included offense the conviction for third degree burglary would make invalid infliction of punishment based on prosecution for a greater offense under a recent decision of the United States Supreme Court. In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed. 2d 628 the conviction was for a misdemeanor and the defendant sought to pursue his right to appeal and a trial de novo. In the subsequent prosecution the offense charged was a felony based on the same activity; the misdemeanor, assault with a deadly weapon, was altered after appeal to assault with intent to kill, a felony. Although the situation here involved two felonies, inasmuch as one is of a more serious nature carrying a more severe minimum punishment, the same rationale should and does govern both cases. In Blackledge, the United States Supreme Court said:
“The Pearce decision was again interpreted by this Court last Term in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, in the setting of Georgia’s system under which sentencing responsibility is entrusted to the jury. Upon retrial following the reversal of his original conviction, the defendant in Chaffin was reconvicted and sentenced to a greater term than had been imposed by the initial jury. Concentrating again on the issue of vindictiveness, the Court found no violation of the Pearce rule. It was noted that the second jury was completely unaware of the original sentence, and thus could hardly have sought to ‘punish’ Chaffin for his successful appeal. Moreover, the jury, unlike a judge who had been reversed on appeal, could hardly have a stake in the prior conviction or any motivation to discourage criminal defendants from seeking appellate review. Hence, it was concluded that the danger of vindictiveness under the circumstances of the case was ‘de minimis,’ id., 412 U.S. at 26, 93 S.Ct. at 1982, and did not require adoption of the constitutional rule set out in Pearce.
“The lesson that emerges from Pearce, Colten, [Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584] and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a likelihood of ‘vindictiveness.’ Unlike the circumstances presented by those cases, however, in the situation here the central figure is not the judge or the jury, but the prosecutor. The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. We conclude that the answer must be in the affirmative.
“A prosecutor clearly has a considerable stake in discouraging convicted mis-demeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prose-cutorial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted defendant going free. And, if the prosecutor has the means readily at hand to discourage such appeals — by ‘upping the ante’ through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defend[54]*54ants will brave the hazards of a de novo trial.
“There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that ‘since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.’ 395 U.S., at 725, 89 S.Ct., at 2080. We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo,, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. Cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138.
“Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process. ' We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him at the trial de novo.” (Emphasis supplied.)
We conclude that McGlothlin should not have been tried for burglary in the first degree. His prosecution should have been limited to the less serious crime for which he had pleaded guilty and successfully invalidated in subsequent litigation.
We have carefully considered the other assignments of error and find them to be without merit.
It results that the judgment should be set aside and the case remanded for a new trial for burglary in the third degree.
OLIVER, and DWYER, JJ., concur.