State v. Keith

Finley, J.

(concurring) — I agree with what seems to me to be the basic rule or ratio decidendi of the majority opinion, namely, that the trial court erred and must be *362reversed as to both (1) the dismissal of the habitual criminal charge and (2) the imposition of the sentence made by the trial court limited to the substantive charge of rape. State v. Starrish, 86 Wn.2d 200, 544 P.2d 1 (1975).

I cannot agree with the majority statement or dictum to the effect that the “psychiatric evaluation” of the defendant was “essential to the imposition of an appropriate sentence.” After the determination and judgment of guilty by the trial court regarding the charge of rape (based upon the defendant’s plea of guilty), the only appropriate question, issue or matter before the trial court was the habitual criminal charge. Its proper disposition would have been in either of two ways (a) by a hearing and a determination by the trial court or (b) by a trial before a jury. In either case, the only issue was whether the defendant had been convicted of the three felonies as alleged by the State. A psychiatric evaluation of the defendant may or may not have been desirable or appropriate for some purposes but was not relevant to the trial and disposition of the habitual criminal charge.

In sum, as I understand the majority opinion, it reverses (1) the trial court’s dismissal of the habitual criminal charge and (2) the imposition of sentence by the trial court solely upon the substantive offense of rape. Thus, on remand, the habitual criminal charge will be tried by the court or, as is the defendant’s right, by a jury. Upon.the determination of the habitual criminal charge in either manner, an appropriate sentence will then be entered by the trial court.

On the basis of the foregoing, I concur in the majority opinion.

Stafford, C. J., and Wright, J., concur with Finley, J.