(concurring in part; dissenting in part).
As the September 30, 1986 and February 9, 1988 convictions from Codington County were not constitutionally valid to support the Part II Information, Randen would have been convicted of DUI Second Offense, rather than DUI Fourth Offense. Thus, I join that aspect of the majority opinion.
Essentially, I part company with the majority opinion on its ultimate conclusion found in its very last sentence. Under the last sentence, Randen’s conviction for DUI Fourth Offense is reversed but the case is remanded for a new trial on the Part II Habitual Offender Information. A new trial should not be held; rather, this case should be reversed and remanded to the trial court for resentencing. In State v. Aspen, 412 N.W.2d 881 (S.D.1987), this Court held the resentencing procedure violated principles of double jeopardy. In the case at Bar, State failed to establish the validity of the Codington County convictions because it failed to produce evidence, i.e., a sufficiency of evidence to establish that Randen had knowingly, intelligently, and voluntarily waived his right to counsel. State had the burden of proving this requirement and it failed in its proof. Cf. State v. Orr, 375 N.W.2d 171 (N.D.1988). Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) is inapposite for it involved a pardon.
When State introduced the Codington County convictions, Randen challenged them, and the lower court proceedings reflected he was present but without counsel. Under Luna v. Black, 772 F.2d 448 (8th Cir.1985), the burden of proof shifted to the State. See also, United States v. Gallman, 907 F.2d 639, 643 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1110, 113 L.Ed.2d 219 (1991). It did not come forward. Now, this Court will permit a second trial for the State to attempt to muster evidence it failed to produce the first time around.
The Fifth Amendment to the United States Constitution provides in pertinent *114part: “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb.... ” The South Dakota Constitution also protects this personal right and in Article VI, § 9, it provides:
No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense.
By this Court’s decision, notwithstanding State’s failure to meet its burden, Randen must now go through a second trial. He is being twice put in jeopardy. He is forced to defend twice for the same alleged offense. And why? Simply because the State, which carried the burden of proof, failed to adduce proof. This was not “trial error,” this was “state error,” i.e., ineptitude for, indeed, it failed to prove the validity of the two Codington County convictions. See also, Greene v. United States, 880 F.2d 1299 (11th Cir.1989), cert. denied, 494 U.S. 1018, 110 S.Ct. 1322, 108 L.Ed.2d 498 (1990).