dissenting:
I respectfully dissent to the majority’s disposition of appellant’s second proposition of error. Rather, I find that the appellant was denied an effective preliminary hearing, on his prior convictions.
At no time during the preliminary hearing did the State prove appellant’s prior convictions, nor did appellant object to the information. In a well reasoned opinion written by Judge Brett in which Judge Bussey concurred, Gessman v. State, 500 P.2d 1092 (Okl.Cr.1972), proclaimed that prior convictions must be established by the prosecution in that they are substantive in nature. In Gessman, the appellant objected to the information by filing a Motion to Quash. It was held however that an appellant’s entry of a plea at formal arraignment and proceeding to trial without raising any objection did not waive the requirement of proof, when the prior conviction is going to be used against the appellant. Id., at 1095.
Under the facts contained in the Record, and because of the prosecution’s failure to offer sufficient proof of appellant’s prior convictions at the preliminary hearing the punishment should be reduced.
I also find that the Rule Six hearing, pursuant to 22 O.S.1981, Ch. 18, App., *1007Rules of the Court of Criminal Appeals, Rule 6.2., was not docketed for hearing within the twenty (20) day requirement. The hearing was held six (6) days after the statutory period had expired. The magistrate stated the matter was erroneously set, however the hearing did not fall within the guidelines and should have not been allowed at all.
For the foregoing reasons, the Judgment and Sentence should be MODIFIED from a conviction of a felony to the misdemeanor offence of Driving While Intoxicated, because without the prior conviction appellant could only have been charged with a misdemeanor under the facts of this case.