(concurring and dissenting). I agree with the Court that the rule stated in People v Fountain1 should be applied in cases pending on appeal on the date Fountain was decided, and therefore concur in the Court’s disposition of this case.
I write separately to indicate my differences with some aspects of the Court’s analysis and to state that I would not limit the application of that rule to cases in which the issue was raised. I would vacate the habitual offender charge and reinstate the original sentence or remand for resentencing in any case where a defendant with prior felony convictions was not charged as an habitual offender until after conviction of the current felony, subject to the prosecutor’s right to show that he did not know, arid should not have been on notice, of the prior convictions._
*369People v Fountain, rather than innovating a new procedure, reaffirmed a procedure announced by the Court of Appeals in 1968 and approved by this Court in 1970. Although in the interim other Court of Appeals panels took the position that that procedure was not mandatory, the directive laid down in Fountain was not novel. Prosecutors could have determined that the procedure approved in 1970 might be unequivocally reaffirmed, as it was subsequently in Fountain, and could have complied with the prescribed procedures at any time without surrendering any legitimate tactical advantage or assuming any burden. Since prosecutors would not have been prejudiced or burdened by compliance with those procedures, and noncompliance may result in prejudice to the accused, the balance favors retroactivity. This Court should not, at the expense of defendants, protect prosecutors from the consequences of their failure to guard against the eventuality that those procedures might someday be made mandatory.
I
The opinion of the Court in Fountain states:
"A prosecutor who knows a person has a prior felony-record must promptly proceed, if at all, against the person as an habitual offender. People v Hatt, 384 Mich 302; 181 NW2d 912 (1970); People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968). 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 the conviction. MCL 769.13; MSA 28.1085. The only recognized exception to this rule is when the delay is due to the need to verify out-of-state felony convic*370tions based on the 'rap sheet’. People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).”2
The opinion of the Court does not purport to establish a new rule. The citations to People v Hatt and People v Stratton suggest that the stated rule originated in or was articulated in those cases. The reference to People v Hendrick as establishing the "only recognized exception to this rule” indicates that the rule antedates Hendrick.
Four sections of the Code of Criminal Procedure address the procedures to be utilized by a prosecutor in charging a defendant as an habitual offender in order to obtain enhancement of the defendant’s sentence upon conviction of a further felony.3
In People v Stratton,4 decided in 1968, the Court of Appeals, reading those sections together and finding guidance in a 1940 decision of this Court,5 declared that "they contemplate[d] two separate situations and procedures to be followed when the prosecutor desires to make possible the meting out of an increased penalty * * *. The procedure set forth in § 13 [MCL 769.13; MSA 28.1085] is to be followed whenever it appears to the prosecutor 'after conviction’ of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior *371felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge; the procedure set forth in § 13 need not be followed”. (Emphasis in original.)
In People v Hatt,6 decided in 1970, this Court declared that the procedures for dealing with a recidivistic charge, as delineated in Stratton, "are approved”.
In People v Marshall,7 decided in 1972, the Court of Appeals reversed the defendant’s habitual offender conviction on the ground that the prosecutor’s failure to file the supplemental information until after the period allowed to take a timely appeal from the most recent conviction denied the defendant due process of law. Although granting defendant relief on this basis, Marshall, without mentioning Hatt, declared non-decisionally that Stratton was "not controlling” on the question "whether the prosecutor could file his supplemental information after the conviction on the then pending current charge, where the prosecutor had knowledge of the prior convictions”, because that specific question was not before the Stratton Court. Marshall also stated that Stratton did not "make it mandatory on the part of the prosecutor to proceed against an accused as a subsequent offender prior to conviction”, and that "the prosecutor has discretion to file a supplemental information under the habitual criminal act after conviction, and is not limited to filing such supplemental information prior to conviction of a current charge, where he has knowledge of the previous conviction.”
In People v Hendrick,8 decided in 1974, the *372Court of Appeals followed Marshall in rejecting the argument that a supplemental information filed after conviction should have been quashed, saying "[d]efendant’s reliance in [sic] the Brazel [In re Brazel, 293 Mich 632; 292 NW 664 (1940)], Hatt and Stratton line of cases is misplaced”. This Court granted leave to appeal. The prosecutor defended the late filing on the ground that the only information about defendant’s prior convictions available before trial came from an FBI "rap sheet” upon which he chose not to rely without further investigation. This Court’s 1976 opinion in Hendrick noted Stratton, Hatt, Marshall and other cases, but rather than resolving any inconsistency, held only that the prosecutor had acted properly in the case at hand;9 it purported neither to state nor to change a rule of general application limiting the time within which a prosecutor could file a supplemental information.
An overview of the case law prior to Fountain shows:
1) One Court of Appeals decision (Stratton), approved by this Court (Hatt), stating that a supplemental information against a felon whose prior convictions are known is to be filed before conviction on the current charge;
2) One Court of Appeals decision (Marshall), followed in two other Court of Appeals decisions,10 one of which was affirmed in a decision which did *373not impugn Stratton or Hatt, declaring that the prosecutor may file a supplemental information after the most recent conviction although he previously had knowledge of the prior convictions.
II
When decisions of the Court of Appeals are in conflict, both lines of decision have precedential value until this Court resolves the conflict. Trial judges and other Court of Appeals panels are free to follow whichever line of decision they find most persuasive, and advocates cannot be faulted for urging the percipience of the cases most favorable to them. Nevertheless, a litigant who relies on a particular line of decision runs the risk that this Court may adopt a different view.
Judicial decisions are normally given retroactive application.11 Linkletter,12 reflecting concerns about the effect of unvarying retroactivity upon the orderly administration of justice, introduced an analysis which sometimes permits courts to avoid or limit the retroactive application of new criminal procedural guarantees. Linkletter’s analysis has in the main been applied to new rules whose adoption prosecutors resisted as hampering the effective prosecution or punishment of offenders — e.g., rules requiring the exclusion of evidence. In general, the retroactivity cases do not present situations where prosecutors could, in advance of the *374new rule’s announcement, have shielded themselves, without hindering the prosecution or punishment of offenders, by the simple expedient of filing one document sooner rather than later.
A prosecutor faced with a defendant’s claim that á prosecution was barred by double jeopardy principles could hardly be expected to abandon a tenable legal position to the contrary. Nor could a prosecutor be expected to accede to a defendant’s request for favorable jury instructions — e.g., that he was entitled to instruction on a lesser offense— where he could make a tenable argument to the contrary, for in doing so he might surrender a legitimate tactical advantage. A prosecutor might also wish to contest a defendant’s assertion that he was entitled to a hearing in a particular context, since recognition of such a right would increase the burdens on his office. But a reasonable prosecutor confronted with Stratton, Hatt, Marshall and Hendrick could easily have concluded that, while there was some degree of uncertainty as to whether the procedures delineated in Stratton were mandatory, observing them would be the prudent and preferable course because this Court might at some point mandate their observance.13 Compliance would have entailed no more than the prompt preparation and filing of a supplemental information. After Stratton and Hatt, but before Fountain, a prosecutor who filed a supplemental *375information promptly would have given up nothing but whatever advantage might have been gained in delaying, or withholding notice to the defendant of, a decision to charge him as an habitual offender.
Fountain reflects this Court’s conclusion that a supplemental information should be promptly filed "to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety”.14 Belated filing of the supplemental information entails a substantial possibility of prejudice to the defendant. The potential disadvantage to the defendant, who may lose the ability to make fully informed decisions, is considerably greater than the disadvantage to the prosecutor in being required to make an early decision.
I conclude that the balance of equities favors the retroactive application of the rule stated in Fountain. Prosecutors were aware that the view expressed in Stratton and Hatt had the support of some Court of Appeals judges and justices of this Court. They cannot properly be heard to complain because they failed to guard against the eventuality that filing of a supplemental information after conviction might someday be disapproved.
I would not limit the application of the rule stated in Fountain to defendants who have raised the issue. One could say that defendants, like prosecutors, should have been aware of the state of the law and were obligated to preserve an objection to tardy filing of an habitual offender charge. *376But the rationale underlying the requirement of issue preservation at the trial level — calling the matter to the court’s attention to allow error to be corrected or avoided — is inapplicable in this context, since neither the judge nor the prosecutor could turn back the clock to permit earlier filing of a supplemental information filed after conviction. And a defendant should not be subjected to enhanced punishment because his appellate counsel overlooked a determinative issue or failed to raise it on the unwarranted assumption that Marshall took precedence over Stratton.15
The rule stated in Fountain can, without remand, easily be applied by this Court — to requests for review16 as well as applications for leave to appeal — and by the Court of Appeals regardless of whether the issue has been raised.
In most cases, the prosecutor will have had notice from his own records or other sources of the defendant’s prior convictions. I would therefore establish a policy of vacating the habitual offender charge and reinstating the unenhanced sentence, if any, or remanding for resentencing, in any case where a defendant with prior felony convictions was not charged as an habitual offender until after conviction on the current felony, subject to the prosecutor’s right to show that he did not know, and should not have been on notice, of the prior convictions.
Kavanagh, J., concurred with Levin,People v Fountain, 407 Mich 96; 282 NW2d 168 (1979).
Id., pp 98-99.
MCL 769.10-769.13; MSA 28.1082-28.1085.
People v Stratton, 13 Mich App 350, 356; 164 NW2d 555 (1968).
In re Brazel, 293 Mich 632, 641, 640; 292 NW 664 (1940), declared that what is now MCL 769.13; MSA 28.1085 "was added to enable the prosecutor to file his supplemental information where he discovers such prior convictions [after filing of the original information]” and that it was "not necessary to file a supplemental information where said previous convictions are known to the prosecuting attorney at the time of the filing of the information”.
People v Hatt, 384 Mich 302, 309; 181 NW2d 912 (1970).
People v Marshall, 41 Mich App 66, 71-73; 199 NW2d 521 (1972).
People v Hendrick, 52 Mich App 201, 209; 217 NW2d 112 (1974).
People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).
People v Laslo, 78 Mich App 257; 259 NW2d 448 (1977), relying on Marshall and the Court of Appeals decision in Hendrick, summarily rejected the defendant’s contention that the prosecutor could not file a supplemental habitual offender information after the defendant’s most recent felony conviction. The Court of Appeals opinion in People v Fountain (After Remand), 77 Mich App 71, 75; 257 NW2d 671 (1977), although reaching the same conclusion, has not been counted as a third decision because this issue was not specifically discussed.
To be sure, the assumption underlying this traditional approach is that a court’s exposition of substantive law expresses its discovery of the true and correct law, and decisions respecting matters of practice and procedure, other than those found to be constitutionally required, are arguably distinguishable. Nevertheless, just as a new rule of substantive law may, for reasons of policy, be denied retroactive application so, too, for reasons of policy, a decision respecting a procedural matter may be accorded full retroactivity.
Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965).
In Robinson v Neil, 409 US 505, 510; 93 S Ct 876; 35 L Ed 2d 29 (1973), the United States Supreme Court noted in upholding the retroactive application of its decision that double jeopardy guarantees took precedence over the "dual sovereignty” doctrine that that decision could not be said "to have marked a departure from past decisions of this Court” and that "the justifiability of the State’s reliance on lower court decisions supporting the dual sovereignty analogy was a good deal more dubious than the justification for reliance that has been given weight in our Linkletter line of cases”. The same could be said for our decision in Fountain and for prosecutorial reliance on Marshall.
People v Fountain, supra, 407 Mich 99.
Fairness requires notice to the offender that he may face enhanced punishment because this prospect may affect decisions he makes in defending against or pleading guilty to the latest charge. Moreover, allowing habitual offender charges to be filed after conviction permits a dissatisfied prosecutor to seek to enhance the punishment of an offender who has been convicted of a lesser charge or who has received a sentence the prosecutor regards as inadequate.
Some omissions of counsel are serious enough to justify a court in granting a defendant relief from the serious mistake of his counsel without requiring a showing that he was on the whole deprived of the effective assistance of counsel. People v Degraffenreid, 19 Mich App 702, 716-717; 173 NW2d 317 (1969), and cases there cited; People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976). In the instant case, relief can be granted without the burden or expense of a new trial.
See Administrative Order 1977-4, 400 Mich lxvii.