dissenting.
I dissent. Reliance on both exhibits 1 and 2 is not necessary to sustain the enhancement to third-offense DUI, and for the reasons set forth below, exhibit 1 is sufficient for the enhancement.
The majority relies on the requirements for the appropriate use of prior convictions in enhancement proceedings set forth in State v. Ristau, 245 Neb. 52, 511 N.W.2d 83 (1994). Under Ristau, the State has the burden to prove prior convictions during enhancement proceedings, and may do so either by introducing transcripts of the judgments or by securing the *815defendant’s voluntary and intelligent admission that he was in fact convicted as alleged in the complaint. State v. Ristau, supra; State v. Smyth, 217 Neb. 153, 347 N.W.2d 859 (1984).
While Ristau sets forth the standard required when using prior convictions to enhance a penalty for DUI, Linn’s case is easily distinguishable on its facts from the facts in Ristau. In Ristau, the defendant’s second-offense conviction for DUI was reversed because the county court judge failed to ascertain whether the defendant was represented by counsel during his prior conviction. The State obtained neither the defendant’s stipulation to the prior offense nor a certified copy of the prior conviction. The prosecutor merely listed the defendant’s prior offense in the complaint and recited the facts of the previous offense into the record at the second-offense proceeding.
In the instant case, during the enhancement hearing on Linn’s third-offense DUI, the State used exhibit 1 to prove the existence of the second-offense DUI of which Linn was convicted on October 2, 1992. Linn made no objection to the validity of the conviction contained therein. Exhibit 1 demonstrates that during the enhancement hearing on her second offense of DUI, and while represented by counsel, Linn stipulated that this was her second offense. This stipulation is recorded on the fourth page of exhibit 1. The counseled stipulation by Linn that exhibit 1 was a counseled second-offense conviction is a waiver by Linn, and Linn cannot complain or assert that the second-offense conviction was based upon an uncounseled first-offense conviction. See State v. Ristau, supra.
In the criminal context, this court has held that “a party who has stipulated to the admission of evidence cannot on appeal complain about evidence admitted pursuant to and in accordance with such stipulation.” State v. Roggenkamp, 224 Neb. 914, 921, 402 N.W.2d 682, 687 (1987). Pursuant to Neb. Rev. Stat. § 39-669.07(3) (Cum. Supp. 1992) at her enhancement hearing for second-offense DUI, Linn with counsel had an opportunity to review the record of her prior conviction and make objections as to the validity of such prior conviction. Therefore, exhibit 1 was sufficient to sustain the enhancement to third offense, and exhibit 2, the unsigned *816journal entry, is not necessary to prove the first conviction for DUI.
The question which this court has not previously decided is, Did Linn’s counseled stipulation contained in exhibit 1 constitute a stipulation as to the constitutional validity of that conviction? The Ohio Supreme Court has addressed this issue in State v. Adams, 37 Ohio St. 3d 295, 525 N.E.2d 1361 (1988). In Adams, the defendant was indicted on one count of grand theft and four counts of passing bad checks. Prior to trial, counsel for the State and for the defendant stipulated that the defendant had two prior theft offenses. The prior theft offenses had the effect of enhancing the degree of the bad check indictments. The defendant raised no constitutional challenge at trial.
After a conviction on all counts, the defendant in Adams appealed, claiming that the State had failed to prove that he had been represented by counsel or had knowingly waived that right with regard to the prior convictions. The Ohio Supreme Court decided that the defendant’s stipulation as to the fact of his prior convictions was a stipulation that the prior convictions were constitutionally sufficient. The court noted that the defendant had failed to challenge the constitutionality of the prior convictions at trial and announced that the only appropriate time to raise the issue of the constitutionality of prior convictions is at the enhancement proceeding. If the defendant fails to do so, the challenge is waived.
I find the reasoning of the Ohio Supreme Court persuasive. Therefore, I conclude that the counseled stipulation found in exhibit 1 is sufficient to prove Linn’s previous conviction for second-offense DUI and that the stipulation overcomes any constitutional attack on the prior convictions. Reliance on exhibit 2, the unsigned journal entry of another second-offense conviction, is completely unnecessary to prove the enhancement to third-offense DUI. I would affirm the decision of the district court.
Wright, L, joins in this dissent.