(dissenting) — I concur in the opinion of Dolliver, J., except that I dissent to that part which remands the case to the trial court to consider whether the prosecutor used proper discretion in filing the habitual criminal proceeding. See my dissent in State v. Pettitt, 93 Wn.2d 288, 297, 609 P.2d 1364 (1980), for reasons why this cause should not be remanded.
The record discloses that the petitioner was arraigned on charges of possession of stolen property in the first degree (count 1), taking a motor vehicle without permission (count 2), and possessing stolen property in the second degree (counts 3 and 4).
Thereafter, pursuant to a plea bargain, petitioner entered a plea of guilty to count 1 of the amended information charging him with possession of stolen property in the first degree. As a part of the plea bargain, the prosecutor agreed to recommend probation if petitioner had no prior felonies (adult or juvenile), nor more than three misdemeanors.
*308Following petitioner's plea of guilty, the prosecutor discovered that his real name was Elvie Earl Turner and that Turner had three prior felony convictions, one each in Oklahoma, Texas and Virginia. He then filed a supplemental information accusing the petitioner of being a habitual offender.
It also appears from the record that the petitioner used an alias in an Oregon court, and this action prevented the Oregon court from discovering his prior convictions. It was only through fingerprints that the petitioner's true identity was discovered.
Petitioner was arrested days prior to the present incident for possession of a stolen automobile in Oregon. He had prior arrests in Indiana, Ohio and West Virginia. He was wanted by the Department of Corrections in Oklahoma as a fugitive from justice from the Oklahoma State Penitentiary. He was convicted of the unauthorized use of a motor vehicle in Tom Green County, Texas. His suspended sentence was revoked and he spent time in prison both in Texas and Oklahoma. His past criminal conduct extended over a period of approximately 10 years.
I have set out in my dissent in State v. Pettitt, 93 Wn.2d 288, 297, 609 P.2d 1364 (1980), that a life imprisonment sentence under the habitual criminal statute does not mean life in prison. The Board of Prison Terms and Paroles has the authority to set the maximum and minimum terms a person must serve. The present rule of the Board sets the maximum for a habitual offender at 15 years and, with good behavior, a defendant will have his term reduced by one-third, and in that case the sentence would result in a 10-year maximum to be served concurrently with the sentence imposed for the crimes of which defendant was last convicted.
The petitioner in this case was advised by the court that, upon conviction of the crime for which he pleaded guilty, the maximum sentence which could be imposed was 10 years’ confinement, a $10,000 fine, or both.
*309The petitioner lied to the prosecutor and engaged in a game of deceiving the prosecutor as to his prior criminal activities. In light of this record, assuming arguendo that the prosecutor must use prosecutorial discretion in filing habitual criminal informations, it appears to me that he has abused his discretion if he fails to file the habitual criminal information under these circumstances.
The record shows that the petitioner has not been rehabilitated by prior sentences imposed for his felonies.
I would affirm.
Wright, J., concurs with Rosellini, J.