(concurring) — I concur in concluding that the special verdict firearm findings entered in the first degree robbery and first degree burglary charges must be stricken. State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978), and State v. Silvernail, 25 Wn. App. 185, 605 P.2d 1279 (1980), remain dispositive as to firearm findings relative to those charges; however, the recent decision in State v. Adlington-Kelly, 95 Wn.2d 917, 631 P.2d 954 (1981), makes it clear that the reasoning of Workman does not apply to assault convictions. The court in Adlington-Kelly stated at page 923,
We find, however, the Workman/Simpson rationale inapplicable to the assault statutory scheme as our assault statute contains none of the types of ambiguity contained in either the state or federal robbery statutes.
(Italics mine.)
I also concur in affirming James Prater's habitual criminal findings, but wish to explain the basis for my conclusion. As the majority opinion correctly notes, James Prater did not question in any way the use of the prior convictions *518at the proceedings below.3
James Prater now complains, even though he failed to take advantage of the benefits afforded by the decision in State v. Holsworth, 93 Wn.2d 148, 607 P.2d 845 (1980), and seeks to have his habitual criminal status vacated. In so contending, he overlooks the burden imposed upon a defendant to "first call attention to the inappropriateness of using a pre-Boykin plea." Holsworth, at 159.
It is fundamental that to preserve error for consideration on appeal, a claimed error must be called to the attention of the trial court at a time that will afford the court an opportunity to correct it. State v. Wiley, 26 Wn. App. 422, 613 P.2d 549 (1980). While the Holsworth decision announced no new law in permitting a challenge to the present use of an allegedly invalid prior guilty plea in a habitual criminal proceeding, the court made it clear that the defendant must initially raise the issue before the State is required to shoulder the burden of proving the validity of the prior conviction. In State v. Swindell, 93 Wn.2d 192, 607 P.2d 852 (1980), decided less than a month later, the court stated,
In Holsworth, we also held that once a defendant charged under RCW 9.92.090 calls attention to the alleged unconstitutionality of a prior felony conviction used by the State to support a habitual criminal charge, the State must thereafter prove beyond a reasonable doubt that the prior conviction was constitutionally valid.
(Italics mine.) Swindell, at 196.
The clear language of Holsworth and Swindell demonstrates that the State's burden does not exist as a requirement until and unless the defendant raises the issue. Of course, the State has the burden of proving the existence of *519a prior conviction as an element of the habitual criminal status, but the degree of proof, that is, proof of a conviction's constitutional validity beyond a reasonable doubt, is not an element but an evidentiary matter. This precise question was recently addressed in State v. Brown, 29 Wn. App. 1, 627 P.2d 142 (1981), where we discussed specifically the State's burden in a prosecution under RCW 9.41.040, and stated,
[W]e do not believe that the import of the holding in Swindell is that the constitutional validity of a guilty plea is an "element" of the offenses such as first degree escape. But a prior felony conviction is an element. A prior conviction "is a fact which it is necessary for the state to allege and prove to obtain a conviction . . ." Pettus v. Cranor, 41 Wn.2d 567, 568, 250 P.2d 542 (1952). Accord, State v. Tully, 198 Wash. 605, 89 P.2d 517 (1939).
State v. Brown, supra at 5.
The same analysis applies in the habitual criminal setting:
In order to establish the status of an accused as an habitual criminal, it is necessary for the state to prove: (1) the prior judgments of convictions; (2) that the person named therein is the same person on trial.
State v. Kelly, 52 Wn.2d 676, 678, 328 P.2d 362 (1958).
The fact that Holsworth placed the burden first on the defendant to raise the issue, demonstrates that the validity of the prior guilty pleas is not an element of proof. Because no challenge was made to the validity of the underlying pleas, the trial court committed no error in accepting proof of the prior convictions by the introduction of certified judgments and sentences.
Although I recognize that In re Lee, 95 Wn.2d 357, 623 P.2d 687 (1980), contains some language which indicates that this issue may be raised for the first time on appeal, such suggestion was superfluous to the decision and cannot be regarded as controlling. Further, other language in Lee treats the issue as being evidentiary. The Lee court, at page 361, refers to Holsworth as a case in which
*520we upheld the right of a defendant to object to the use of such evidence [allegedly invalid prior guilty pleas] to prove the essential elements of the present charge in a habitual criminal proceeding.
(Italics mine.) Once we realize that this case presents an evidentiary problem with possible constitutional implications, it becomes clear why Holsworth requires a defendant to first raise the issue of the alleged invalidity of the prior guilty plea before the State must assume the burden of proving the constitutional validity of such prior convictions. Further, no constitutional issue is involved because we are dealing with an evidentiary problem. Appellant's failure to raise the issue must be regarded as a waiver of a right to require the State to prove its constitutional validity. This is because Holsworth announces no new principles, and only declares existing law. See In re Lee, supra at 367-68 (Horowitz, J., dissenting). Appellant James Prater was unrestricted in his right to make a proper challenge at trial to the use of his prior guilty pleas or to waive objections to the admission of such evidence.
For the reasons stated, I too would affirm the habitual criminal findings as to James Prater.
Harold Prater challenged such use and thereby placed the burden on the State to prove the constitutional validity of the prior challenged convictions. The record indicates that the State failed to sustain its burden of proof. I therefore agree that Harold Prater's habitual criminal finding must be vacated and remanded.