(dissenting) — I concur in the majority opinion holding that there are two prior valid felony convictions for the purpose of declaring the defendant a habitual offender. I dissent to that part of the opinion which holds that the prosecutor is required to exercise his discretion in filing a habitual criminal information.
See my dissent in State v. Pettitt, 93 Wn.2d 288, 297, 609 P.2d 1364 (1980), for the reason this case should not be remanded.
In addition, the defendant in this case did not request either in his petition for review or in his argument on the merits that the case should be remanded.
The petition for review which was granted was on two issues: (1) Does conviction of the Oregon offense of unauthorized use of a vehicle constitute a conviction of a felony under the laws of the State of Washington? and (2) Does the record of the guilty plea and conviction of the Oregon offense of escape in the second degree as embodied in exhibit 7 reflect a sufficient showing of a knowing and voluntary waiver of the defendant's constitutional guaranty?
The brief of the defendant addresses only the above issues and does not suggest that the matter should be remanded on the habitual criminal charge.
The majority sua sponte remands the case, without discussion of whether the prosecutor violated his discretion in filing the habitual criminal information. It is evidently felt that this procedure is required under State v. Pettitt, supra.
On this record, if the rule is that the prosecutor must exercise discretion, then the prosecutor would have abused his discretion if he had failed to so charge.
*318The defendant was charged in Lewis County with the crime of escape in the second degree (count 1), and assault in the second degree (count 2). He was charged in another information with burglary in the second degree (count 1), theft in the second degree (count 2), theft in the first degree (count 3), and unlawful possession of a pistol by a felon (count 4).
The defendant entered a plea of guilty to the crimes of taking a motor vehicle without the owner's permission and assault in the second degree. All other charges were dismissed. The plea of guilty was entered with the full understanding that the State would file a supplemental sentencing information alleging habitual criminal status.
Let us examine the record. The trial court found that the defendant had been previously convicted of the following felonies: (1) unauthorized use of a vehicle on August 1, 1974, in Linn County, Oregon; (2) unauthorized use of a vehicle on August 1, 1974, in Linn County, Oregon; (3) burglary in the first degree on February 19, 1976, in Linn County, Oregon; and (4) escape in the second degree on April 14, 1977, in Marion County, Oregon.
The majority finds that the defendant was constitutionally convicted of two prior felonies to invoke the habitual criminal statute.
Although the crimes to which the defendant pleaded guilty cannot be considered for the purpose of filing a habitual criminal information, they can be considered by the prosecutor when deciding whether he should file the charge. He also has a right to consider the alleged acts which formed the basis of the criminal information, although some were dismissed on the defendant's plea of guilty. The prosecutor can determine from all the criminal activity of the defendant whether or not he is an individual who must be imprisoned for a period of time to protect society from his proclivity toward the commission of crimes against property and persons.
*319Under the circumstances, the prosecutor would have abused his discretion if he had failed to file a habitual criminal charge.
I would affirm.
Wright, J., concurs with Rosellini, J.
Stafford, J., concurs in the result.