(dissenting) — -While I agree with the analysis of the majority that the double jeopardy clause bars a second habitual criminal proceeding where the dismissal of the charge is based on insufficient evidence, I would hold that the State presented sufficient evidence to support the habitual criminal charge.
I would so hold on the ground that a defendant in a habitual criminal proceeding should bear the burden of proof in challenging the validity of a guilty plea underlying a prior conviction, where such conviction was entered prior *391to 1976, and overrule State v. Holsworth, 93 Wn.2d 148, 607 P.2d 845 (1980) insofar as it placed the burden upon the State to prove the validity of pre-1976 guilty pleas.
The law concerning habitual criminal proceedings prior to our decision in Holsworth was to the effect that prior convictions in a habitual criminal proceedings are proved by introducing copies of the original judgment and sentence bearing the seal of the judge who heard the case, annexed to the original attestation by the officer in charge, and that the prosecutor's burden is to prove that a defendant was duly convicted in a court of competent jurisdiction, presided over by a qualified judge. State v. Murdock, 91 Wn.2d 336, 588 P.2d 1143 (1979). See also State v. Williams, 98 Wn.2d 428, 432, 656 P.2d 477 (1982).
In Holsworth we held that once a defendant in a habitual criminal proceeding challenges the validity of a former guilty plea relied upon by the State to prove his habitual criminal status, the State has the burden of proving beyond a reasonable doubt that, prior to entering the guilty plea, the defendant has been apprised of the nature of the offense and the consequences of his plea. Extrinsic evidence regarding the voluntariness of the guilty plea may be considered for any guilty plea entered before September 1976, the date of Wood v. Morris, 87 Wn.2d 501, 554 P.2d 1032 (1976). Wood held that after 1976, the record of the plea hearing must show on its face that the plea was entered voluntarily and intelligently.
The Holsworth holding was based largely on what we considered necessary to comply with the mandate of Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). Boykin established the rule that a pleading defendant must be apprised of the nature of the offense and the consequences of pleading guilty in order for the plea to be accepted as knowing, intelligent, and voluntary. Boykin, at 243-44.
Although Boykin has not generally been applied retroactively, Holsworth applied Boykin retroactively to the extent that a defendant in a habitual criminal proceeding is enti-*392tied to challenge the validity of a pr e-Boykin guilty plea. Holsworth further held that the State has the burden of proof beyond a reasonable doubt that the pr e-Boykin guilty pleas were made knowingly after the defendant was apprised of the nature of the offense and of the consequences of his plea.
Thus, our decision in Holsworth, while it relied upon some established principles concerning the guilty pleas, effected an abrupt change in the law with respect to procedures in habitual criminal proceedings. The burden upon the prosecutor was significantly increased as a result of that opinion. Also, prior to that decision, attacks on judgments offered in evidence in such proceedings reasonably could have been regarded as collateral attacks, wherein the party attacking must overcome the presumption of validity which ordinarily attaches to judgments. See Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). It is evident that the lower courts, as well as prosecutors, have understandably relied upon that presumption of validity.
(Footnote omitted.) State v. Williams, supra at 432-33.
The burden is on the State to prove each element of a habitual criminal status beyond a reasonable doubt. State v. Murdock, supra at 340-41. To establish status as habitual criminal, the elements the State must prove are (1) prior judgments of conviction and (2) that person named therein is the same person on trial. State v. Kelly, 52 Wn.2d 676, 328 P.2d 362 (1958); State v. Harkness, 1 Wn.2d 530, 96 P.2d 460 (1939). Accordingly, the State has met its burden of proof when it proves beyond a reasonable doubt a prior judgment of conviction and that the person named therein is the same person on trial. Introduction of copies of the original judgment and sentence hearing, the seal of the judge who heard the case, annexed to the original attestation by the officer in charge satisfies this burden of proof. Murdock, at 341. The judgment is then entitled to a presumption of validity. See Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1938). An attack on a guilty plea that underlies the judgment of *393conviction is in the nature of a collateral attack on the judgment. A collateral attack is an attempt to impeach the judgment by matters dehors the record, in an action other than that in which it was rendered, and is an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking the judgment. Philbrick v. Parr, 47 Wn.2d 505, 509, 288 P.2d 246 (1955). Not until our 1976 decision in Wood did we require the record to show on its face that the plea was entered knowingly and intelligently.
There is no constitutional requirement that the State prove the validity of a guilty plea underlying a prior conviction. To require such is to transform the habitual criminal proceeding into a trial-within-a-trial. Holsworth could rationally be extended to require the State to demonstrate the constitutional validity of outstanding convictions by proof beyond a reasonable doubt when the defendant challenges any alleged unconstitutional error underlying the conviction. See State v. Serr, 35 Wn. App. 5, 664 P.2d 1301 (1983).
I would hold that once the State has proved the conviction under the guidelines set forth in Murdock, there is a presumption of validity of any underlying guilty plea entered prior to 1976. A defendant's challenge to a pre-1976 plea of guilty should be viewed as a collateral attack on the judgment. The defendant carries the burden of proving that the pre-1976 conviction was obtained in violation of Boykin. Similar holdings are found in State v. Holden, 375 So. 2d 1372 (La. 1979); Williams v. State,_ Ind. _, 431 N.E.2d 793 (1982); State v. Adamson, 197 Kan. 486, 419 P.2d 860 (1966).
In the subject case the State met its burden of proof when it proved beyond a reasonable doubt the prior 1974 judgment conviction for robbery and that Hennings was the person convicted of such robbery. Defendant Hennings did not meet his burden of proof in his collateral attack on the 1974 judgment. In addition, there is no allegation that he *394was actually prejudiced by any error as required in In re Hews, 99 Wn.2d 80, 660 P.2d 263 (1983). In fact, he was not, as he got the special firearms charge deleted which would have subjected him to an additional mandatory 5-year minimum sentence.
In addition, I would hold that a defendant in a habitual criminal proceeding is prohibited from challenging the validity of a prior conviction based on a guilty plea, where such plea was entered pursuant to a plea bargain resulting in some benefit to the defendant.
The challenged 1974 guilty plea resulted from a December 14, 1973, armed robbery of the Mission Pharmacy. Hennings originally was charged with robbery while armed with a firearm, but due to a plea bargain arrangement in exchange for the guilty plea an amended information deleted the firearms allegation. Because of the deletion of the special firearms charge, Hennings avoided a mandatory 5-year minimum sentence. RCW 9.41.025.
In State v. Majors, 94 Wn.2d 354, 356-57, 616 P.2d 1237 (1980), this court noted that a guilty plea entered pursuant to a negotiated plea agreement presents a different situation from the rule that a guilty plea does not preclude a defendant from raising questions concerning the circumstances in which a plea was made.
Plea bargaining is a procedural device in which the prosecution promises to dismiss other pending charges, or to make charge reductions, or to make certain recommendations in exchange for the defendant's promise to plead guilty. The plea bargain generally insures the prosecutor a conviction and enables the defendant to obtain a lighter sentence. See generally Alschuler, The Prosecutor's Role in Plea Bargaining, 36 U. Chi. L. Rev. 50 (1968); Bishop, Rights and Responsibilities of the Defendant Pleading Guilty, 49 J. Urb. L. 1 (1971); Tarnow, Criminal Law and Procedure, 19 Wayne L. Rev. 437 (1973); Comment, Profile of a Guilty Plea: A Proposed Trial Court Procedure for Accepting Guilty Pleas, 17 Wayne L. Rev. 1195 (1971); Note, Guilty Plea Bargaining: Compromise by Prosecutors *395to Secure Guilty Pleas, 112 U. Pa. L. Rev. 865 (1964). When the defendant agrees to a plea bargain in exchange for a reduced charge or lighter sentence, he waives enumerated rights, including trial by jury, confrontation of witnesses, self-incrimination, appeal, and proof beyond a reasonable doubt of all elements of the crime charged. See generally Majors, at 356-57.
In Bordenkircher v. Hayes, 434 U.S. 357, 363-64, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978), the United States Supreme Court observed:
Plea bargaining flows from "the mutuality of advantage" to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.
While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable"— and permissible — "attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, [412 U.S. 17, 31, 36 L. Ed. 2d 714, 93 S. Ct. 1977 (1973)]. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.
(Citations omitted. Italics mine.)
Hayes serves as strong support for prohibiting a habitual criminal defendant from challenging a prior guilty plea *396entered pursuant to plea bargaining. The basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary and without understanding of the consequences in a constitutional sense.
We should not permit a defendant to obtain the benefits of a plea bargaining agreement and then subsequently challenge such agreement and obtain the benefit of avoiding habitual criminal status.
Dimmick, J., concurs with Rosellini, J.