(dissenting). I respectfully dissent.
Defendant’s sole contention on appeal is that his plea-based conviction resulted from an illusory plea bargain and, therefore, must be reversed. In exchange for defendant’s agreement to plead guilty as charged, the trial judge promised that the maximum minimum sentence he would impose would be ten years. The judge carefully explained that, should the presentence investigation report convince him that a ten-year minimum was too lenient, the defendant would have the option of withdrawing his plea. In addition, the prosecutor indicated that, if the defendant pled guilty, his office would not file a supplemental information charging defendant as an habitual offender. According to appellant’s brief, the prosecutor was aware that defendant had two prior felony convictions.
*687The question on appeal is whether the Supreme Court’s decision in People v Fountain and People v Jones, 407 Mich 96; 282 NW2d 168 (1979) (hereinafter Fountain), requires us to reverse defendant’s conviction.
Fountain has been interpreted as establishing three rules concerning the deadlines for filing supplemental habitual offender informations:
"(1) a prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender,
"(2) the prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after conviction, and
"(3) the habitual-offender information should be filed simultaneously with the informations charging the current felonies where the prosecutors’ respective offices prosecuted the prior felonies and must be presumed to have known of the defendants’ prior felony records.” People v Westbrook, 102 Mich App 296, 298; 301 NW2d 511 (1980). (Emphasis in original.)
In the instant case, there are no retroactivity problems since the filing of the information occurred subsequent to the decision in Fountain. Therefore, each of the three rules enunciated above are potentially applicable. See People v Young, 410 Mich 363; 301 NW2d 803 (1981). I would hold that the prosecutor has caused reversible error in failing to comply with rule number one, "a prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender”.
The meaning of what is a prompt filing was considered by a panel of this Court in People v Martin, 100 Mich App 447; 298 NW2d 900 (1980). I *688find the following passage from Martin particularly instructive:
"After Fountain, however, an habitual offender information will not be considered 'promptly’ filed unless it is filed at least prior to the initiation of any plea negotiations. Use of the threat of supplementation in plea negotiations will always, it seems to us, carry with it the appearance at least of an attempt by the prosecutor to coerce a guilty plea which may not otherwise have been offered. Fountain changes the previous law, therefore, in that in order to avoid even the appearance of prosecutorial impropriety it makes the Stratton/Hatt [People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968), People v Hatt, 384 Mich 302; 181 NW2d 912 (1970)] procedure mandatory in the sense that failure to follow it will preclude the prosecution from proceeding on an habitual offender charge even absent a showing of prejudice to the defendant resulting from delay in filing the supplemental information.” Martin, supra, 459.
Applying this principle to the facts of the instant case, the prosecutor did not file the supplemental information timely. Although the prosecutor knew that the defendant had a prior felony record, as part of the plea agreement was a promise to forbear from supplementing the defendant, he nevertheless neglected to file the information or a notice of intent to file a supplemental information prior to the plea negotiations, thereby creating, at the very least, the appearance of prosecutorial impropriety. Under the Supreme Court’s decision in Fountain, I would, therefore, reverse.