(concurring specially).
The records of the two prior Codington County convictions challenged by Randen plainly show that he did not have the assistance of counsel when he entered the guilty pleas on which the convictions were based. Court minutes from the 1986 Codington County plea proceedings state, “Deft present w/o counsel.” Similar minutes from the 1988 plea proceedings also state, “deft present w/o counsel.” Nor had Randen knowingly, voluntarily and intelligently waived his right to counsel.
Despite this persuasive evidence of the illegality of the two convictions, the trial court received the two convictions in evidence and found Randen guilty on the Part II information of fourth offense DUI. We reverse on the ground that this was trial error in the receipt of evidence resulting in a conviction, rather than insufficiency of the evidence as occurred in Aspen, 412 N.W.2d 881 and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).
Therefore, the case should be reversed and remanded for a new trial rather than for resentencing. Lockhart, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265. In this sense, this case is clearly distinguishable from Aspen as it does not constitute the prohibited “second bite of the apple." Aspen, 412 N.W.2d at 884 (emphasis added).