¶1(concurring). I concur with the result but would limit the application of the rule herein announced to the facts of this case.
¶2In Robinson v Neil, 409 US 505; 93 S Ct 876; 35 L Ed 2d 29 (1973), the United States Supreme Court decided that the question of whether a double jeopardy decision should be given limited retroactivity is "not readily susceptible of analysis under the Linkletter [v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965)] line of cases”, because these cases "dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to these procedural rules cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis”. Id, at 508.
¶3Robinsonheld that Waller v Florida, 397 US 387; 90 S Ct 1184; 25 L Ed 2d 435 (1970), is fully *537retroactive. Wallerheld that the concept of dual sovereignty cannot be applied to two prosecutions for the same act, one under municipal law and another under state law. The analysis proceeded in terms of the "same evidence” construction of the Double Jeopardy Clause.
¶4People v White, 390 Mich 245; 212 NW2d 222 (1973), held that the same, transaction test is the proper construction of the term "offense” as it is used in the Double Jeopardy Clause of the state and federal constitutions. That decision was unique in that it encompassed both a substantive constitutional interpretation, and simultaneously created a new procedural mandate.
¶5Substantively, in reading "same transaction” as the equivalent of "same offense”, Whiteswept within the Double Jeopardy Clause all the elementally similar or identical crimes committed "where a single criminal episode involves several victims” or "where a single transaction is divisible into chronologically discrete crimes. E.g., Johnson v Commonwealth, 201 Ky 314; 256 SW 388 (1923) (each of 75 poker hands a separate 'offense’)”. See Ashe v Swenson, 397 US 436, 448, 451; 90 S Ct 1189, 1197, 1198; 25 L Ed 2d 469, 478, 480 (1970) (Brennan, J. concurring).
¶6Procedurally, Whitecompelled the joinder of elementally distinct crimes committed as part of the same transaction, e.g., rape, felonious assault and kidnapping, which theretofore had been prosecuted in separate informations. The Court’s reason for the rule adopted was to curb prosecutorial discretion which was used to sentence shop and harass defendants.
¶7The Court’s motivation in adopting the "same transaction” test in Whitewas, of course, salutary, and although, as Justice Brennan observed dis*538senting in White, the purpose could have been achieved by adopting a court rule requiring joinder of offenses under such circumstances, the Court chose to elevate this procedural mandate to constitutional stature.
¶8This dual aspect of the Whitedecision is crucial in analyzing its retroactive effect. First, cases involving the proscription of multiple prosecutions for the same or similar criminal act deal with the substantive expansion of the Double Jeopardy Clause, and are indeed "not readily susceptible of [retroactivity] analysis”. Therefore, Whiteshould be fully retroactive to cases of this nature. Second, however, cases involving the joinder of elementally distinct crimes occurring in the course of a continuous transaction deal with a new, constitutionally compelled, procedural rule. To these cases, the majority’s retroactivity analysis based on the three-pronged test of Linkletter v Walker, supra,and People v Hampton, 384 Mich 669; 187 NW2d 404 (1971), is particularly appropriate.
¶9To cases, like the case at bar, which involve the issue of compulsory joinder, People v White would not apply retroactively.
¶10(dissenting). In People v White, 390 Mich 245; 212 NW2d 222 (1973), this Court held that the Double Jeopardy Clause requires the people to join at one trial all charges against a defendant that arise out of the same criminal transaction.
¶11The questions presented by this appeal are whether Whiteapplies retroactively and whether failure to raise a Whitedefense before trial waives it.
¶12We are of the view that Whiteshould apply *539retroactively, at least in cases pending on direct appeal when Whitewas announced,
¶13Markham was convicted in Wayne Circuit Court in 1967 of kidnapping
¶14After Markham sought, but before this Court denied, leave to appeal his kidnapping conviction,
¶15The double jeopardy issue was not raised in the trial court or on direct appeal. The opinion of the Court of Appeals affirming Markham’s murder conviction did not advert to the Whiteopinion which was released November 20, 1973 about 13 days before such affirmance.
¶17Markham’s failure to raise his Whitedefense in the trial court did not waive it.
¶18The United States Supreme Court has held that a defendant is not precluded from raising on appeal a double jeopardy defense even though he pled guilty.
¶19Whiteheld that the Double Jeopardy Clause precludes trial of a charge after the defendant has once been placed in jeopardy for another charge *541arising out of the same criminal transaction. Markham was placed in jeopardy for kidnapping the murder victim. The kidnapping continued until the killing. Both the kidnapping charge and the murder charge arose out of the same criminal transaction. Under White, the murder charge— "judged on its face” — was one the state could not constitutionally prosecute.
¶20Markham did not waive his double jeopardy claim by failing to assert it on direct appeal. In Robinson v Neil, 409 US 505, 509; 93 S Ct 876; 35 L Ed 2d 29 (1973), the United States Supreme Court held that Waller v Florida, 397 US 387; 90 S Ct 1184; 25 L Ed 2d 435 (1970), which bars on the ground of double jeopardy two prosecutions, state and municipal, based on the same act or events, is retroactive, and could be availed of on collateral attack (Federal habeas corpus) by a defendant who pled guilty to the second charge.
¶21The defendants in People v Powers, 272 Mich 303; 261 NW 543 (1935), and People v McDonald, 306 Mich 65; 10 NW2d 309 (1943), were properly brought to trial a second time. The people could have been prejudiced by the failure of defendants to assert their double jeopardy defenses. Each defendant was charged with larceny and receiving stolen property. Powers was convicted of larceny, granted a new trial and convicted on retrial of receiving stolen property. On appeal, he asserted that his larceny conviction at the first trial was in effect an acquittal of the charge of receiving stolen property. At McDonald’s first trial, the prosecutor withdrew the charge of larceny. A mistrial was declared when the jury was unable to agree on a verdict. At the second trial, the prosecutor withdrew the charge of receiving stolen property. McDonald was convicted of larceny. Had the double jeopardy defense been raised earlier, the people could have proceeded on retrial with the charge to which the defense did not apply and might have obtained a conviction on that charge. Powersand McDonaldwere not cases where the state could not constitutionally prosecute a second time.
¶22The question whether an accused person waives the benefit of a new decision by failing to raise the issue in the trial court before the new decision is announced poses, in somewhat different form, the question of the retroactivity of that decision.*
¶23*543The consequence of failure to preserve the issue is determined by the extent of the retroactivity. If a decision is fully retroactive, failure to raise the issue in the trial court or pursue it on direct appeal is of no consequence and will not preclude collateral attack on the conviction. If the retroactivity of the decision is limited to (1) cases pending on direct appeal; (2) cases pending on direct appeal where the issue was raised on appeal; or (3) such cases where the issue was preserved in the trial court, failure to preserve the issue at the trial or appellate level is of consequence.
¶24II
¶25The United States Supreme Court has indicated that ordinarily its double jeopardy decisions will be applied retroactively. Robinson v Neil, supra.
¶26*544The petitioner in Robinsonwas convicted in a municipal court of assault and battery in violation of a city ordinance and fined. He was later charged under state law with the crime of assault with intent to commit murder based on the same circumstances which gave rise to the municipal trial. He pled guilty and was sentenced to a term of imprisonment. Subsequently, in Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969), the Supreme Court held that the Fifth Amendment guarantee that no person may be twice put in jeopardy for the same offense was binding on the states, and in Waller v Florida, supra,the Court held that the scope of the guarantee precluded the recognition of the dual sovereignty doctrine with respect to separate state and municipal prosecutions. Robinsonheld that Walleris to be accorded full retroactive effect.
¶27Robinsonreferred to Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), where the Court first departed from the general rule of according full retroactive effect to constitutional decisions and adopted a three-part test in deciding retroactivity questions: consideration must be given to the purpose of the new rule, reliance on the old rule, and the effect on the administration of justice.
¶28The Court in Robinson, supra, p 508, stated that the question whether a double jeopardy decision should be given limited retroactivity is "not readily susceptible of analysis under the Linkletter*545line, of cases”. The Linklettercases "dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to those procedural rules cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis.”
¶29The "practical result” of application of the double jeopardy guarantee "is to prevent a, trial from taking place at all” and thus the guarantee "is significantly different from procedural guarantees held in the Linkletterline of cases to have prospective effect only”. Robinson v Neil, supra, p 509.
¶30The Court recognized that if the state had relied on the dual sovereignty analogy, "the defendant may have been unintentionally accorded a rela*546tively painless form of immunity from the state prosecution”. However, since the Court had not earlier had occasion to pass on the Wallerissue which had not assumed Federal constitutional proportions until after Benton v Maryland, supra,and its decision in Wallerwas not a marked departure from past decisions of the Court, "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 Linkletterline of cases”, Robinson v Neil, supra, p 510.
¶31Michigan prosecutors were clearly justified in relying on precedents which more or less uniformly applied the "same evidence” rather than the "same transaction” test in resolving double jeopardy challenges to multiple prosecutions arising out of the same criminal episode.
¶32Application of Whiteretroactively will not, however, have an adverse effect on the administration of justice by according defendants charged with serious offenses "a relatively painless form of immunity from the state prosecution”.
¶33Before White, when multiple felony charges were separately tried, generally the most serious charge was tried first.
¶34Markham, for reasons that do not appear on this record (under the statute MCLA 750.349; MSA 28.581 the kidnapping charge could have been tried in Washtenaw), was first tried for kidnapping and then for first-degree murder. Upon his convic*547tion for kidnapping, Markham was subject to a life sentence. The sentence actually imposed, 30 to 40 years imprisonment, is not "a relatively painless form of immunity” from prosecution.
¶35The third Linkletterfactor — the effect on the administration of justice of retroactive application of the new rule — focuses primarily on the impact on prosecutorial and judicial resources of requiring a large number
¶36Whitewas decided over two years ago. By now all cases then pending on direct appeal have been disposed of by the Court of Appeals. Following our remand to the Court of Appeals of Davenport for "consideration and disposition in accord with” White, and of Joines for "reconsideration in view of’ White,
¶37*548All persons except Markham whose convictions were pending on direct appeal when Whitewas decided appear to have obtained the benefit of the retroactive application of White.
¶38We should not penalize Markham by subjecting him to service of an additional ten years (plus or minus) to infinity because neither the Court of Appeals nor his assigned counsel knew of or recognized the possibility of White’s application to his not yet final judgment of conviction.
¶39Ordinarily, when a new decision is given limited retroactivity, the purpose is to bar relief to a large number of persons who might have raised or did raise the issue whose convictions have become final or are pending on appeal. It is anomalous to construct a rule of prospectivity to deny one defendant or a handful of defendants the benefit of a rule which appears to have been uniformly applied retroactively to all similarly situated defendants.
¶40Retroactive application of Whitewill not have a significant impact on the administration of justice. It will not require any retrials, will not result in the imposition of disproportionately light penalties and will affect relatively few offenders.
¶41The analysis of the United States Supreme Court on retroactivity issues
¶42See Hamling v United States, 418 US 87, 102; 94 S Ct 2887; 41 L Ed 2d 590 (1974); Jenkins v Georgia, 418 US 153, 155; 94 S Ct 2750; 41 L Ed 2d 642 (1974).
¶43 MCLA 750.349; MSA 28.581.
¶44People v Markham, 19 Mich App 616; 173 NW2d 307 (1969).
¶45 The Court of Appeals affirmed the kidnapping conviction on October 29, 1969. Leave was applied for on November 17, 1969 and denied July 16, 1970. 383 Mich 804.
¶46 MCLA 750.316; MSA 28.548.
¶47 An unpublished per curiam opinion affirming Markham’s murder conviction was released by the Court of Appeals on December 3, 1973. (Docket No. 9933.)
¶48 "We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the state may not constitutionally prosecute.” Menna v New York, 423 US 61, fn 2; 96 S Ct 241; 46 L Ed 2d 195 (1975).
¶49Similarly, see Blackledge v Perry, 417 US 21, 30; 94 S Ct 2098; 40 L Ed 2d 628 (1974), where the United States Supreme Court held that it was a denial of due process for a prosecutor to respond to invocation of a statutory right of appeal from a misdemeanor conviction by filing a felony charge prior to the trial de novo, and that a plea of guilty to the felony charge did not preclude a defendant from raising his constitutional claims in a Federal habeas corpus proceeding.
¶50 Menna raised his double jeopardy claim on direct appeal in the New York Court of Appeals. The United States Supreme Court granted his motion for leave to proceed in forma pauperis, granted certiorari and reversed.
¶51 Markham raised his double jeopardy claim collaterally by delayed motion for a new trial.
¶52The defendant in Blackledge v Perry, supra,likewise failed to raise his claim on direct appeal and nevertheless prevailed because the state court could not properly require him to answer to the charge at all.
¶53Distinguishing earlier decisions where the Court had held that a plea of guilty bars independent claims relating to the deprivation of constitutional rights that occurred before entry of the plea, the Court said: "the right that he asserts and that we today accept is the right not to be haled into court at all upon the felony charge. The very initiation of the proceedings against him in the Superior Court thus operated to deny him due process of law.”
¶54The Court explained:
"Last term in Robinson v Neil, 409 US 505; 93 S Ct 876; 35 L Ed 2d 29 (1973), in explaining why the Double Jeopardy Clause is distinctive, the Court noted that 'its practical result is to prevent a trial from taking place at all, rather than to prescribe the procedural rules that govern the conduct of a trial.’ Id, at 509. While our judgment today is not based on the Double Jeopardy Clause, we think that the quoted language aptly describes the due process right upon which our judgment is based. The 'practical result’ dictated by the Due Process Clause in this case is that North Carolina simply could not permissibly require Perry to answer to the felony charge. That being so, it follows that his guilty plea did not foreclose him from attacking his *542conviction in the Superior Court proceedings through a federal writ of habeas corpus.” Blackledge v Perry, supra, p 31. (Emphasis by the Court.)
¶55People v Cooper, 58 Mich App 284; 227 NW2d 319 (1975), is pending on appeal in this Court pursuant to leave granted, 395 Mich 753 (1975).
¶56A number of judicial decisions declare that an accused person *543does not waive a claim to the benefit of a new decision by failing to anticipate it and assert the issue. See, e.g., United States, ex rel O’Connor v New Jersey, 405 F2d 632, 634, n 2 (CA 3, 1969); United States, ex rel Smith v Brierly, 267 F Supp 274 (ED Pa, 1967); aff'd 384 F2d 992 (CA 3, 1967); Wade v Yeager, 377 F2d 841, 845 (CA 3, 1967); United States, ex rel Angelet v Fay, 333 F2d 12 (CA 2, 1964); Reeves v Warden, Maryland Penitentiary, 346 F2d 915 (CA 4, 1965).
¶57Robinsondeclared that while the Court had not handed down a fully reasoned opinion on the retroactivity of Benton v Maryland, it had "indicated that it is retroactive without examination of the Linklettercriteria”. Robinson v Neil, supra, p 508.
¶58Robinsonreferred to North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), where the Court applied Benton v Maryland, supra,retroactively without discussion, and Ashe v Swenson, 397 US 436, 437, fn 1; 90 S Ct 1189; 25 L Ed 2d 469 (1970), where the Court declared:
"There can be no doubt of the 'retroactivity’ of the Court’s decision in Benton v Maryland. In North Carolina v Pearce, 395 US 711 [89 S Ct 2072; 23 L Ed 2d 656 (1969)] decided the same day as Benton, the Court unanimously accorded fully 'retroactive’ effect to the Bentondoctrine.”
¶59In Price v Georgia, 398 US 323, 330, fn 9; 90 S Ct 1757; 26 L Ed 2d 300 (1970), the Court declared in a footnote:
"Benton has fully retroactive application, see Waller v Florida, 397 US 387, 391, n 2 [90 S Ct 1184; 25 L Ed 2d 435] (1970).”
¶60That statement raised some eyebrows because fn 2 of the Waller*544opinion states that when certiorari was granted in Price v Georgia counsel had been requested to brief and argue the question of retroactivity of Bentonand went on to say: "By our decisions in the instant case and in Ashe v Swenson, supra,we do not resolve, with respect to the circumstances presented in Price v Georgia, supra,”that question. The obvious circularity of the citation of fn 2 of Wallerfor the statement in fn 9 of Pricemay explain why Pricewas not referred to in Robinson.
¶61 We note that the rationale of Mennaand Robinsonare essentially the same — the charge is one the state may not constitutionally prosecute.
¶62After the United States Supreme Court held that the Fifth Amendment privilege against self-incrimination was a valid defense to a prosecution for failure to comply with certain Federal gambling and tax statutes [Marchetti v United States, 390 US 39; 88 S Ct 697; 19 L Ed 2d 889 (1968); Grosso v United States, 390 US 62; 88 S Ct 709; 19 L Ed 2d 906 (1968)], the Court held those decisions fully retroactive to seizures of property that took place before the overruling decisions were handed down. United States v United States Coin & Currency, 401 US 715; 91 S Ct 1041; 28 L Ed 2d 434 (1971). Rejecting the government’s contention that the retroactive effect of the new rule should be limited to protect the treasury from litigation to recover money and property seized under the statute, the Court contrasted the issue before it from its earlier retroactivity decisions concerned with the implementation of a procedural rule and its effect on the accuracy of the fact-finding process at trial:
. "Rather, Marchetti and Grossodealt with the kind of conduct that cannot constitutionally be punished in the first instance. These cases held that gamblers in Angelini’s position had the Fifth Amendment right to remain silent in the face of the statute’s command that they submit reports which could incriminate them. In the absence of a waiver of that right, such persons could not properly be prosecuted at all.”
¶63See, e.g., People v Noth, 33 Mich App 18; 189 NW2d 779 (1971); People v Miccichi, 264 Mich 581; 250 NW 316 (1933).
¶64See De Stefano v Woods, 392 US 631, 634; 88 S Ct 2093; 20 L Ed 2d 1308 (1968), holding that the decision making the Sixth Amendment’s guarantee of trial by jury applicable to the states [Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968)] and the decision extending the right to jury trial for serious criminal con-tempts [Bloom v Illinois, 391 US 194; 88 S Ct 1477; 20 L Ed 2d 522 (1968)] would not be applied retroactively:
"… The effect of a holding of general retroactivity on law enforcement and the administration of justice would be significant, because the denial of jury trial has occurred in a very great number of cases in those states not until now accepting the Sixth Amendment guarantee.” (Emphasis supplied.)
¶65Similarly, see Stovall v Denno, 388 US 293, 300; 87 S Ct 1967; 18 L Ed 2d 1199 (1967), holding that the rule requiring counsel at lineups [United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967)] would be applied prospectively: "the processing of current criminal calendars would be disrupted.”
¶66390 Mich 809 (1973); 392 Mich 764 (1974).
¶67People v Joines (On Remand), 55 Mich App 334; 222 NW2d 230 (1974); People v Davenport (On Remand), 51 Mich App 484; 215 NW2d 702 (1974).
¶68See Government of the Virgin Islands v Smith, 445 F2d 1089, 1094 (CA 3, 1971); United States v Anderson, 514 F2d 583, 586 (CA 7, 1975).
¶69United States v Peltier, 422 US 531; 95 S Ct 2313; 45 L Ed 2d 374 (1975); Michigan v Payne, 412 US 47; 93 S Ct 1966; 36 L Ed 2d 736 (1973); Linkletter v Walker, 381 US 618, 640; 85 S Ct 1731; 14 L Ed 2d 601 (1965) (Black, J., dissenting); Desist v United States, 394 US 244; 89 S Ct 1030; 22 L Ed 2d 248 (1969) (Douglas, J., dissenting, p 255), (Harlan, J., dissenting, p 256), (Fortas, J., dissenting, p 269).