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State v. Borth5/6/2003
en to prove such prior convictions. State v. Ristau, 245 Neb. 52, 511 N.W.2d 83 (1994), citing State v. Nowicki, 239 Neb. 130, 474 N.W.2d 478 (1991). Under Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980), overruled on other grounds, Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994), when using a prior conviction to enhance a sentence, the State need only show that at the time of the prior conviction the defendant had, or waived, counsel. State v. Ristau, supra. In most cases, the State will prove a defendant's prior convictions by introducing certified copies of the prior convictions or transcripts of the prior judgments. Id.
A transcript of judgment which fails to contain an affirmative showing that the defendant had or waived counsel is not admissible and cannot be used to prove a prior conviction. State v. Ristau, supra, citing State v. Nowicki, supra.
In the instant case, the district court held that when read together, the documents in exhibit 8 affirmatively show that Borth was represented by counsel at all relevant stages of the proceedings and that exhibit 8 was therefore suitable to be used in an enhancement proceeding. We note that exhibit 8 contains the complaint filed on May 11, 1999; Borth's citation for driving under the influence ; a written not guilty plea dated May 26, 1999, and signed by Borth; a checklist signed by the trial judge indicating that Borth was present at the hearing and requested that counsel be appointed to represent him; a second checklist signed by the trial judge and dated July 7, 1999, indicating that Borth was represented by counsel and was found guilty; and the order of the court dated July 12, 1999, indicating that Borth was present in court during the hearing, was represented by counsel, and entered a guilty plea, pursuant to a plea agreement, which the court found to be knowingly, intelligently, and voluntarily made. We conclude that exhibit 8 sufficiently demonstrates that Borth was represented by counsel at all relevant stages of the criminal process and, therefore, that exhibit 8 was suitable for use in the enhancement proceeding.
CONCLUSION
For the reasons stated above, we find that the initial stop of Borth's vehicle was based upon reasonable suspicion that he was, had been, or was about to be engaged in criminal behavior. We also find that exhibit 8 sufficiently demonstrated that Borth was represented by counsel at all relevant stages of the criminal process and that exhibit 8 was suitable for use in the enhancement proceeding. Therefore, we affirm Borth's conviction and sentence.
Affirmed.
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