
101 Mich. App. 476 (1980)
300 N.W.2d 611
PEOPLE
v.
STANKIEWICZ
Docket No. 78-3120.
Michigan Court of Appeals.
Decided November 19, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.
George S. Buth, for defendant on appeal.
Before: R.B. BURNS, P.J., and MacKENZIE and J.T. KALLMAN,[*] JJ.
J.T. KALLMAN, J.
Defendant was convicted of arson of real property, MCL 750.73; MSA 28.268, in a nonjury trial in Kent County on March 14, 1978. On March 16, 1978, two days later, the prosecutor filed a supplemental information charging defendant as a second felony offender, MCL 769.10, 769.13; MSA 28.1082, 28.1085. Defendant's prior conviction was also in Kent County before the same judge on March 17, 1977. Defendant was convicted of the habitual offender charge and appeals that conviction.
We find that no reversible error occurred when the prosecutor filed an information charging defendant as an habitual offender after defendant's conviction on a second felony but before the Supreme Court issued its opinion in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979) (Fountain).
In Fountain, the Supreme Court vacated sentence enhancement under the habitual criminal act where two defendants were not charged as habitual criminals until after they were convicted of their current principal offenses. The Court reasoned:
"A prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the *479 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 convictions based on the `rap sheet'. People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).
"Here the prosecutors must be presumed to have known of the defendants' prior felony records because their respective offices prosecuted the prior felonies. The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety." Fountain, supra, 98-99.
The Supreme Court did not indicate whether its decision was meant to apply completely retroactively, purely prospectively, or in some intermediate fashion. In three subsequent orders, the Court declined to rule on Fountain's application. In People v Morris, 407 Mich 885 (1979), the Court vacated a sentence enhancement provision and reinstated defendant's initial sentence, citing Fountain. In People v Devine, 407 Mich 904; 284 NW2d 342 (1979), the Court vacated a separate sentence imposed after defendant's conviction as an habitual offender, but reversed this Court's order to remand for resentencing, stating, "we intimate no opinion on the retroactivity of [Fountain]." Lastly, in People v Ronald Brown, 407 Mich 913 (1979), the Supreme Court remanded to this Court "for briefing and argument of the issues of (1) whether the timing of the prosecutor's filing of the supplemental information was violative of the rule announced in [Fountain]; and (2) if so, *480 whether Fountain should be given retroactive effect".
Judge BURNS would affirm on the authority of Devine. In Devine, the Supreme Court expressly disavowed an intent to intimate an opinion on Fountain's retroactivity; therefore, we are unable to accept Devine as authority for applying Fountain in this case where all the relevant events occurred before Fountain was decided. Moreover, the later remand in Ronald Brown indicates the Court wished to open the retroactivity question to full discussion among panels of this Court.
This Court, left to decide the retroactivity question, has issued a variety of conflicting opinions. Contrast People v Holmes, 98 Mich App 369; 295 NW2d 887 (1980), giving only prospective effect to the "new rule of law", and People v Reese, 97 Mich App 785; 296 NW2d 172 (1980), applying Fountain's "new rule of law" to all future cases and cases pending on appeal at the date of the Fountain decision.
This Court recently discussed two rules stemming from Fountain. People v Mohead, 98 Mich App 612; 295 NW2d 910 (1980). Rule 1 stated that it is impermissible for a prosecutor with knowledge of a defendant's prior felony record before trial to file a supplemental information charging the defendant as an habitual offender after conviction on the current felony charge. No determination as to retroactivity was made. Rule 2 stated that habitual charges should be filed with the information charging the current or later felony. For the reasons given in Mohead, we agree that Rule 2  the "simultaneous filing requirement"  created a new rule of law which should be applied prospectively only to cases in which informations charging the current felonies are filed after Fountain's *481 release date, August 28, 1979. The case at bar does not fall within that class.
In considering Mohead's first rule, it is helpful to analyze it in terms of two stages. Step one states the previously recognized rule that a prosecutor who knows of an accused's prior felony record must proceed "promptly" against the person as an habitual offender. The Fountain Court cited People v Hatt, 384 Mich 302; 181 NW2d 912 (1970), and People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968), as authority for this proposition. The Mohead Court recognized, however, that Stratton and Hatt both discuss a related but distinct problem: the prejudice that can be engendered by the use of a single trial to determine guilt on the principal offense and the habitual charge. Other cases do support Fountain's first proposition. In People v Marshall, 41 Mich App 66, 73; 199 NW2d 521 (1972), for example, this Court noted that the prosecution "should have acted promptly" in bringing habitual offender charges. The Marshall Court continued, holding that where no good reason existed for a nearly four-month delay between conviction and filing and that delay substantially prejudiced Marshall's right to appeal, defendant Marshall had been denied due process. No specific time was set for filing in Marshall  the Court merely required promptness, with no unexplained or prejudicial delay. A similar approach was adopted by the Supreme Court in People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976). The Court quoted Marshall:
"where no good reason exists for the delay in filing a supplemental information charging the defendant as a subsequent offender, and the delay on the part of the prosecutor substantially prejudices defendant's rights, the filing of that supplemental information *482 clearly denies defendant his right to due process of law." Hendrick, supra, 420-421.
The Court found the prosecutor's need to verify an out-of-state rap sheet a sufficient reason to delay filing a supplemental information until the date of sentencing. We conclude that under Marshall and Hendrick no clear timetable was established for filing the supplemental information.
We find Fountain took a second step in placing conviction as the legally significant point in determining whether a prosecutor has been sufficiently prompt. The Fountain Court wrote:
"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." Id., 98. (Emphasis added.)
The authority cited in support of this proposition is MCL 769.13; MSA 28.1085. That statute describes a procedure that permits a prosecutor to file a supplemental information after conviction when he or she learns of the prior record after conviction. The previous section of the habitual criminal act describes another procedure, which may be used to enhance sentencing when the prosecution knows of the prior offenses at an earlier stage of the proceeding. That section states, in pertinent part:
"A person to be punished under this section or section 10 or 11 need not have been indicted and convicted as a previous offender in order to receive the increased punishment provided in this section or section 11, but may be proceeded against as provided in section 13." MCL 769.12; MSA 28.1084. *483 This language also is permissive: while it offers options to prosecutors, it does not establish preconviction filing as mandatory whenever the prosecution has knowledge of the prior felony offenses.
Before Fountain, Michigan's courts had never found reversible error when a prosecutor with prior knowledge of an accused's felony record delayed filing a supplemental information until shortly after conviction. The preference for preconviction filing does appear, however, in In re Brazel, 293 Mich 632, 639-640; 292 NW 664 (1940), where the Supreme Court wrote of the option of proceeding in a single information under a statute similar to the present habitual offender act.
"We must conclude that prior convictions can be charged in an information for a subsequent offense where the prosecutor has knowledge thereof on filing the information, or later in separate proceedings by a supplemental information under 3 Comp Laws 1929, [sec] 17341 (Stat Ann [sec] 28.1085), where such officer acquires such knowledge or information subsequent to conviction."
Stronger language suggesting the preconviction filing rule appears in Stratton. It is noteworthy, however, that in that opinion, this Court emphasized the permissive statutory language. Stratton, supra, 356.
Neither In re Brazel nor Stratton required a determination of whether the filing schedule suggested by the statute was mandatory. In Marshall, supra, 71, however, this Court addressed that precise question, concluding:
"The holding of Brazel and Stratton does not, however, make it mandatory on the part of the prosecutor to proceed against an accused as a subsequent offender *484 prior to conviction, but is merely permissive in that it allows the prosecutor to so proceed."
Marshall was cited with approval by the Supreme Court in Hendrick.
We conclude that the preconviction filing requirement in Fountain, previously only a suggested procedure, established a new rule to be followed by prosecutors.
Application of Fountain to the case at bar is simplified if each step of the Fountain rule is treated separately. We have already determined that the simultaneous filing rule does not operate retroactively to the case at bar. See Mohead, supra. The "promptness" requirement, which was clearly established in pre-Fountain decisions, is an old rule, so no retroactivity question is raised. In the instant case, the prosecution filed the supplemental information two days after conviction, a filing date which, under Marshall and Hendrick, satisfies the promptness rule. Since the timing fails to meet the requirements set forth by the new preconviction filing rule established in Fountain, we must determine whether that rule should be applied to the instant case.
The United States Supreme Court discussed the problems of retrospective and prospective application of new rules of law in Linkletter v Walker, 381 US 618, 629; 85 S Ct 1731; 14 L Ed 2d 601 (1965), a case that refused to apply the exclusionary rule announced in Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), retroactively beyond cases pending on appeal. Linkletter established three guidelines that have been adopted in Michigan. See People v Hampton, 384 Mich 669; 187 NW2d 404 (1971), and People v Kamin, 405 Mich 482; 275 NW2d 777 (1979). The three factors *485 to be considered in determining whether to apply a new rule retroactively are: First, the purpose of the new rule should be examined; second, the reliance on the old rule should be considered; and finally, the effect of retroactive application on the administration of criminal justice must be examined.
Applying Hampton's first standard to Fountain, we note that the Court expressed two reasons for implementing the simultaneous filing rule: to provide fair notice to the accused and to avoid an appearance of prosecutorial impropriety. No additional reasons were stated for requiring preconviction filing nor are any apparent.
It is noteworthy that defendant in the case at bar had been fully informed, on the record, of the prosecution's intent to file the supplemental information, so defendant cannot be regarded as having lacked notice. Nor was there any appearance of prosecutorial impropriety in the instant case; the prosecution was employing a legitimate bargaining tool in offering not to file a supplemental information if defendant pleaded guilty. In Bordenkircher v Hayes, 434 US 357, 360-361; 98 S Ct 663; 54 L Ed 2d 604 (1978), the Supreme Court discussed a similar situation, noting that "as a practical matter * * * this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain".
The prosecution's actions must be regarded as within the scope of the then-existing law. While preconviction filing was suggested in dicta in Stratton and Hatt, the prosecution's actions were fully justifiable under the holding of Marshall and Bordenkircher. Hampton's second test, therefore, suggests a prospective-only application.
*486 Finally, Hampton requires an examination of what effect retroactive application would have on the administration of justice. As this Court noted recently in Mohead, broad application of Fountain to all cases in which the original informations were filed before the Fountain decision would benefit a class of defendants who have demonstrated no prejudice and would penalize prosecutors who had violated no known prosecutorial duty.
The Supreme Court of the United States has refused to accord even limited retroactive effect to new prophylactic rules. In Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967), the Court refused to apply to cases pending on appeal the new rule of United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), and Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967). The Court noted the previous decisions did not correct any serious flaws in the factfinding process and recognized that retroactive application would operate in some cases where no unfairness was actually present. The Court wrote:
"We also conclude that, for these purposes, no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. We regard the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction unsupportable." 388 US 293, 300-301.
The preconviction filing rule announced in Fountain should not be applied to cases in which all the critical facts occurred before the date of the Fountain decision. We hold that this new rule should apply only to those cases in which the original *487 informations were filed after August 28, 1979. The case at bar falls outside that class.
Affirmed.
MacKENZIE, J., concurred.
R.B. BURNS, P.J. (dissenting).
I must dissent.
Defendant was convicted of arson of real property, MCL 750.73; MSA 28.268, in a nonjury trial in Kent County on March 14, 1978. On March 16, 1978, two days later, the prosecutor filed a supplemental information charging defendant as a second felony offender, MCL 769.10, 769.13; MSA 28.1082, 28.1085. Defendant's prior conviction was also in Kent County before the same judge on March 17, 1977. Defendant was convicted of the habitual offender charge and appeals that conviction.
As both felony convictions occurred in the same county, knowledge by the prosecutor of the prior offense is presumed. When a prosecutor has knowledge of a prior felony conviction it is error for him to delay filing an habitual offender charge until after defendant's conviction on the last felony. See People v Devine, 407 Mich 904; 284 NW2d 342 (1979), modifying on appeal 87 Mich App 213; 274 NW2d 20 (1978).
I would reverse defendant's habitual offender conviction and reinstate his sentence on the arson conviction.
NOTES
[*]  Circuit judge, sitting on the Court of Appeals by assignment.
