Tom Pendowski, No. Little Rock, for appellant.

        Steve Clark, Attorney Gen., Little Rock, for appellee.

SUPPLEMENTAL OPINION ON GRANT OF REHEARING

        [26 Ark.App. 106-A] COOPER, Judge.

        The State contends on rehearing that we erred in directing the trial court on remand to resentence the appellant as a DWI third offender. We agree and modify our earlier disposition.

        [26 Ark.App. 106-B] In our opinion of November 23, 1988, 26 Ark.App. 102, 760 S.W.2d 78, we remanded to the trial court for resentencing on a lesser-included offense supported by the admissible evidence, rather than remanding the case for a new trial. This disposition necessarily required a determination that the evidence was insufficient to support the appellant's conviction as originally entered by the trial court. However, in the case at bar, the question of evidentiary insufficiency was raised neither in the trial court nor on appeal, and we therefore erred in considering that issue in making our disposition.

        In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the United States Supreme Court held that the double jeopardy clause of the federal constitution prohibits a second trial where the reviewing court has reversed on the grounds that the evidence was legally insufficient to sustain the conviction. As we have noted, the sufficiency of the evidence was not decided by us in this case. Even had this issue been properly raised and addressed on appeal, however, the double jeopardy clause would not prohibit retrial in this case.

        In Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), decided approximately three weeks after the case at bar was submitted to us for decision, the United States Supreme Court held that "where the evidence offered by the State and admitted by the trial court--whether erroneously or not--would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial." Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 287, 102 L.Ed.2d 265 (1988). The appellant in Nelson brought a federal habeas corpus petition alleging that his enhanced sentence under the Arkansas Habitual Offender Act was invalid because one of the prior convictions used for enhancement had been pardoned. The federal district court found that the prior conviction had in fact been pardoned at the time Nelson was sentenced, and held that the double jeopardy clause prohibited resentencing Nelson as a habitual offender. Nelson v. Lockhart, 641 F.Supp. 174 (E.D.Ark.1986). The Court of Appeals for the Eighth Circuit affirmed. Nelson v. Lockhart, 828 F.2d 446 (8th Cir.1987).

        The United States Supreme Court reversed, holding [26 Ark.App. 106-C] that when a reviewing court determines that a defendant's conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction, the double jeopardy clause does not prohibit retrial. 109 S.Ct. at 290. The Court reasoned that:

It appears to us to be beyond dispute that this is a situation described in Burks as reversal for "trial error"--the trial court erred in admitting a particular piece of evidence, and without it there was insufficient evidence to support a judgment of conviction. But clearly with that evidence, there was enough to support the sentence: the court and the jury had before them certified copies of four prior felony convictions, and that is sufficient to support a verdict of enhancement under the statute. See Ark.Stat.Ann. § 41-1003 (1977). The fact that one of the convictions had later been pardoned by the Governor vitiated its legal effect, but it did not deprive the certified copy of that conviction of its probative value under the statute.

        Nelson, 109 S.Ct. at 290-91. We think that the circumstances of the case at bar are analogous to the facts of the Nelson case. The fact of three prior DWI convictions is an element of DWI, fourth offense, under Ark.Code Ann. § 5-65-111 (1987). See Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). In our opinion in this case delivered November 23, 1988, we held that the trial court erred in holding that the docket sheet from a prior conviction in Jacksonville was sufficient to establish that the appellant was represented by counsel in that case. The issue decided by the trial court, on which we reversed, was whether the State had laid an adequate foundation for the admissibility of the prior conviction as to representation by counsel. It is important to note that the issue of whether the appellant was in fact represented by counsel in the questioned case was neither presented nor decided by either the trial court or this court. it is nevertheless clear that, because of this trial error, evidence of three prior DWI convictions was before the court, and that evidence of three convictions was sufficient to support the conviction of the greater offense of DWI fourth offense. Although we held the evidence of representation or waiver of counsel pertaining to the Jacksonville [26 Ark.App. 106-D] conviction to be too ambiguous to be relied upon, thus vitiating the legal effect of that conviction under Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), the erroneously admitted evidence of the Jacksonville conviction retained its probative value under the statute. Nelson, 109 S.Ct. 285. Because the issue of the sufficiency of the evidence was never before us in this case, and because Nelson holds that the double jeopardy clause does not preclude retrial under these circumstances, we modify our November 23, 1988, order requiring the trial court to resentence the appellant as a DWI, third offender, and we remand to the trial court for further proceedings not inconsistent with this opinion.

        Another issue which surfaced during our conference of this case was whether the State may attempt on remand to introduce evidence of the prior conviction from Jacksonville. We address this issue because it is likely to arise on retrial.

        The Jacksonville conviction which we held to have been erroneously introduced at trial was not inadmissible per se, but instead was inadmissible only because the State failed to show the existence of a condition precedent to admissiblity, i.e., that the appellant had or validly waived counsel. To state the matter differently, we simply held that the State failed to lay a proper foundation for that particular piece of evidence. Therefore, unlike the pardoned conviction in Nelson, the Jacksonville conviction would have legal effect if the fact of representation or waiver of counsel could be shown through the introduction of new evidence. On retrial, the State may again attempt to introduce the Jacksonville conviction to show that prior DWI offense. It may do so if it first complies with Baldasar by showing, through competent evidence, that the appellant was represented by counsel or made a valid waiver of counsel with respect to that conviction. [U]pon appellate reversal of a conviction, the Government is not limited at a new trial to the evidence presented at the first trial, but is free to strengthen its case in any way it can by the introduction of new evidence.

        United States v. Shotwell Mfg Co., 355 U.S. 233, 243, 78 S.Ct. 245, 252, 2 L.Ed.2d 234 (1957); see Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987). This rule has not been invalidated by the Supreme Court's subsequent holdings in Nelson, supra, or in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d [26 Ark.App. 106-E] 1 (1978). See United States v. Gallagher, 602 F.2d 1139 (3d Cir.1979). Burks and its progeny bar retrial where an appellant's conviction is reversed on the ground that the evidence was insufficient to sustain the conviction. Burks, 437 U.S. at 18, 98 S.Ct. at 2150; Nelson, 109 S.Ct. at 290. However, in the case at bar we did not find that there was insufficient evidence to sustain the conviction, but reversed because of trial error in the admission of the Jacksonville conviction. We are persuaded by the Gallagher decision, in which the Third Circuit Court of Appeals reasoned that:

The Burks Court does not impose a preclusive rule upon the evidence that may be used at retrial once the government has met its initial production burden. It erects a double jeopardy barrier only if the prosecution fails to produce sufficient evidence at the first trial. Thus, apart from the requirement that the new evidence conform to the indictment, there is no reason to restrict the government's case at a second trial. By the same token, the defense is also free to present testimony which it had not utilized in the first encounter.

        Gallagher, 602 F.2d at 1143. Other courts have dealt with the question of the prosecution's use, on retrial, of evidence which was improperly admitted at the former trial because of foundational defects or similar errors relating to preliminary questions governing admissibility. In Frisco v. Blackburn, 782 F.2d 1353 (5th Cir.1986), the reviewing court held that it was error for the trial court to admit an in-court identification without first determining that it was untainted by an illegal, uncounseled lineup. Nevertheless, the Fifth Circuit held that the prosecution would be permitted to elicit an in-court identification from the same witness on retrial if it could first show that the identification was untainted by the unconstitutional lineup. Frisco, 782 F.2d at 1356-56. See also United States v. Ordonez, 737 F.2d 793 (9th Cir.1984). In our original opinion we did not hold that the disputed conviction was uncounseled, but only that the foundational evidence was too scanty to permit a finding that counsel was in fact present or had been validly waived by the appellant. Therefore, under the authorities cited above, we hold that neither [26 Ark.App. 106-F] the State nor the appellant will be precluded on retrial from presenting evidence relevant to the appellant's representation by or waiver of counsel with respect to the Jacksonville conviction.

        MAYFIELD, J., concurs in the result reached in this supplemental opinion.