State v. Ninneman , 179 Neb. 729 ( 1966 )

Carter, J.,

concurring in result.

On May 7, 1965, defendant was sentenced for a second offense of drunken driving. No contention is advanced that the verdict of the jury finding him guilty of drunken driving was in any respect erroneous. The complaint charged this to be a second offense.

In 1961 the defendant was found guilty of drunken driving in the municipal court of the city of Lincoln. The complaint and judgment of the municipal court were received in evidence without objection. That no appeal was. taken therefrom, and that the defendant was the same person as the person presently in court, was established. This court has held many times as follows: “We reiterate that proof of such convictions is properly made by offering in evidence the complaint or information, the judgment rendered on the verdict or the plea of guilty, evidence that the judgment has become final, and that defendant is the same person presently before the court.” Danielson v. State, 155 Neb. 890, 54 N. W. 2d 56. The proof was made strictly in accordance with the rule of this court and defendant thereupon became subject to the penalty provision for a second offense for drunken driving, contained in section 39-727, R. S. Supp., 1963.

Defendant contends, however, that he was denied the right to obtain counsel in his first conviction in 1961, and that it was therefore void and not useable to prove that he was subject to the increased penalty for a second violation. The finality of the previous conviction is established. Defendant did not appeal nor seek redress. by habeas corpus. In fact, he entered a plea of guilty and satisfied the penalty for the 1961 offense. I submit that under the existing law of this state he may not collaterally attack irregularities in his first conviction to avoid the increased penalties for the second.

Defendant has been convicted of two drunken driving offenses which have been established in the manner that this court has prescribed. The majority opinion ignores the long-established law of this state and cites no authority for so doing. I disagree with this method of opinion writing. Having these views, I concur in the result but disagree with the basis, of the decision.