(concurring in part and dissenting in part). While I agree with the majority that defendant is not entitled to withdraw his guilty plea, I respectfully dissent from the majority’s conclusion that defendant’s habitual-offender conviction is invalid.
I disagree with the majority’s conclusion that defendant could not have been convicted as a habitual offender and that the habitual-offender provisions do not apply where the underlying conviction is for ouil-3. While the decision in People v Tucker, 177 Mich App 174; 441 NW2d 59 (1989), raises many valid considerations, I respectfully disagree with my colleagues in the majority that that case was correctly decided.
I believe that this case is controlled by our recent decision in People v Eilola, 179 Mich App *435315; 445 NW2d 490 (1989). In Eilola, the defendant was convicted of first-degree retail fraud, MCL 750.356c(2); MSA 28.588(3)(2), and of being a habitual offender (third offense), MCL 769.11; MSA 28.1083. The defendant’s first-degree retail-fraud conviction was based upon the shoplifting of a sleeping bag valued at $35. Although that would normally be a misdemeanor offense of retail fraud in the second degree, the defendant was convicted under a provision of the retail-fraud statute which provided that an offense which would otherwise be second-degree retail fraud is elevated to first-degree retail fraud, a felony, where the person had previously been convicted of one of four specified offenses. The defendant appealed, arguing that the general habitual-offender statute should not be applied to a conviction for first-degree retail fraud under the provisions raising second-degree retail fraud to first-degree retail fraud. This Court disagreed, concluding that the provisions of the habitual-offender statutes could be applied.
The Eilola Court distinguished away the cases which held that the general habitual-offender statute did not apply to a controlled-substance offense,1 noting that the enhancement provisions of the controlled-substance statutes served only to enhance a sentence and are based exclusively upon prior drug-related offenses, while first-degree retail fraud is a substantive offense and the recidivist element raising second-degree retail fraud to first-degree retail fraud was but one alternate way of committing first-degree retail fraud. Eilola, supra at 322.
The Eilola Court also distinguished its decision from that in People v Honeycutt, 163 Mich App *436757; 415 NW2d 12 (1987), wherein this Court held that the habitual-offender statutes could not be applied to a felony-firearm conviction. The Eilola Court, supra at 322-323, concluded that the Honeycutt decision was limited to the felony-firearm statute because the Honeycutt decision was based upon elements unique to the felony-firearm statute. Specifically, (1) the felony-firearm statute addresses the problems of criminals committing offenses while possessing a firearm, while first-degree retail fraud does not require the commission of an underlying crime in order to exist, (2) the sentencing provisions of the retail-fraud statute, unlike the felony-firearm statute, do not mandate any particular term of imprisonment and do not require a determinate sentence; thus, the sentencing scheme under the retail-fraud statute would not be disturbed by applying the habitual-offender statute, and (3) a violation of the felony-firearm statute is always a felony, while under the retail-fraud statute there is only one felony level.
The comments in the Eilola opinion distinguishing the felony-firearm statute and the decision in Honeycutt from a retail-fraud case are equally applicable to the instant case and, therefore, I do not believe that the Honeycutt decision is applicable to the case at bar. However, the decisions under the controlled-substance statutes do merit some additional consideration since the basis for distinguishing away those cases in Eilola is not equally applicable here. Specifically, while first-degree retail fraud is a separate substantive offense, ouil-3 is not a separate substantive offense, but merely an enhancement provision of a violation of the ouil statute, similar to the controlled-substance statutes. However, the habitual-offender statutes specifically provide that they are not applicable to a major controlled-substance offense to *437which the enhancement provisions of the Public Health Code are applicable. See MCL 769.10(1)(c); MSA 28.1082(1)(c), MCL 769.11(1)(c); MSA 28.1083(1)(c), and MCL 769.12(1)(c); MSA 28.1084(1)(c). The Legislature has not, however, provided an exception from the habitual-offender statutes for an ouil-3 conviction.
Another feature of the ouil statutes which is more akin to the retail-fraud statute than the controlled-substance statute is the fact that only the highest level is a felony, with the lower levels being misdemeanors. The Eilola Court, supra at 323, found this to be an important point:
This last point should not be lightly tossed aside. Unlike the felony-firearm statute, or even the controlled-substance statutes, where application of both the enhancement provisions contained within those respective statutes as well as the general habitual-offender statute would produce ever escalating and conflicting results, the general habitual-offender statute dovetails harmoniously with the retail-fraud statute. That is, the internal provisions of the retail-fraud statute can raise an offense from a misdemeanor to a felony, but do not enhance the sentence once a defendant is at the level of a felony offense. At this point, the general habitual-offender statute can be applied where the offender has prior felony convictions.
Thus, while the recidivist provisions of the controlled-substance statutes provide for enhancing the sentence for a felony on the basis of subsequent convictions, the retail-fraud and ouil statutes merely provide for raising a misdemeanor offense to a felony for subsequent convictions, but for no enhancement once the defendant is at the felony level. Therefore, both the retail-fraud and the ouil statutes dovetail harmoniously with the general habitual-offender statute, without the con*438flicting results that occur in attempting to apply the habitual-offender statutes to controlled-substance or felony-firearm offenses. With this point in mind, as well as the fact the habitual-offender statutes do not exempt ouil-3 from their application, I conclude that the general habitual-offender statute, MCL 769.10 et seq.; MSA 28.1082 et seq., is applicable to an underlying conviction of ouil-3. Thus, I believe defendant was properly convicted as a habitual offender.
I would affirm.
See People v Franklin, 102 Mich App 591; 302 NW2d 246 (1980), People v Elmore, 94 Mich App 304; 288 NW2d 416 (1979), and People v Edmonds, 93 Mich App 129; 285 NW2d 802 (1979).