700 S.W.2d 167 | Mo. Ct. App. | 1985
In a court tried case appellant was convicted as a prior offender of driving while intoxicated under § 577.010, RSMo Supp. 1984. He was sentenced to Pemiscot County jail for 48 hours and fined $150. The offense appealed from occurred February 9, 1985. Appellant had previously pleaded guilty to driving with excessive blood alcohol content on July 14, 1980. Appellant does not challenge the sufficiency of the evidence. It clearly established the appellant was driving while intoxicated.
The appellant also contends the trial court erred in considering proof of his prior conviction. It is not necessary to consider all of the bases asserted by the appellant to establish that contention. The proof of that conviction makes no reference to representation by or waiver of counsel. That proof was inadmissible to enhance punishment upon conviction of the instant offense when imprisonment was to be imposed. State v. Wilson, 684 S.W.2d 544 (Mo.App. 1984).
The sentence was fixed by the court. It is within the range of punishment for a first offense driving while intoxicated. §§ 577.010.2, 558.011.1(5), RSMo Supp. 1984, and 560.016, RSMo 1978. However, it is not shown the trial court did not impose the sentence because of the restrictions upon punishment of § 577.023.2, RSMo Supp.1984. Cf. State v. Harris, 541 S.W.2d 686 (Mo.App.1976); State v. McCollum, 527 S.W.2d 710 (Mo.App.1975). Nevertheless, the insufficiency of that proof does not mar the determination of guilt. The sentence is vacated and the cause is remanded for reconsideration of the punishment and resentencing in accordance with the procedure outlined in State v. Harris, supra; State v. McCollum, supra; State v. Jackson, 511 S.W.2d 447 (Mo.App. 1974).