1. Constitutional Law: Sentences: Prior Convictions:Habitual Criminals. Criminal defendants have the right to challengethe use of constitutionally invalid convictions for sentence enhancementin the context of a habitual criminal proceeding.

2. Jurisdiction: Appeal and Error. Jurisdictionis a prerequisite for an appellate court’s consideration of an appeal,and jurisdiction cannot be acquired unless the appellant has satisfiedthe requirements for appellate jurisdiction.

3. Final Orders: Appeal and Error: Time. Itis fundamental that for a party to preserve the right to appeal from afinal order, that party must file a notice of appeal within 30 days ofthe order appealed from.

4. Jurisdiction: Time: Appeal and Error. Timelinessof an appeal is jurisdictional.

5. Jurisdiction: Appeal and Error. Whena lower court does not gain jurisdiction over the case before it, an appellatecourt also lacks the jurisdiction to review the merits of the claim.

6. Sentences: Prior Convictions: Right to Counsel:Proof. To prove a prior conviction for enhancement purposes, the Stateneed only show that at the time of the prior conviction, the defendanthad, or waived, counsel.

    Appeal from the District Courtfor Burt County, Darvid D. Quist, Judge, on appeal thereto from the CountyCourt for Burt County, F.A. Gossett III, Judge. Judgment of District Courtaffirmed.

    Sam Houston, of Feller &Teichman, P.C., for appellant.

    Don Stenberg, Attorney General,and Martin W. Swanson for appellee.

    Hannon, Mues, and Carlson,Judges.

    Mues, Judge.

    Carol A. Mitchell appeals aSeptember 18, 1998, order of the district court affirming the judgmentand conviction of the county court which found Mitchell guilty of third-offensedriving under the influence of alcoholic liquor (DUI) and sentenced herto 6 months in jail, a $500 fine, and a 15-year license suspension. Mitchellalleges the district court erred in upholding the county court’s overrulingof her two separate petitions to invalidate prior convictions when therewas no record to support that she had been advised of her Boykin -basedconstitutional rights and had affirmatively waived those rights. See Boykinv. Alabama , 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).Because Mitchell appeals only from the district court’s order on appealfrom the county court in the third-offense DUI proceedings and did nottimely appeal to the district court from the county court denial of herpetitions in the separate proceedings, we affirm.

    On September 26, 1997, a complaintwas filed in county court charging Mitchell with third-offense DUI in violationof Neb. Rev. Stat. § 60-6,196 (Reissue 1993). The complaint allegedthat Mitchell had been convicted of DUI on two previous occasions. On January5, 1998, Mitchell pled no contest to the underlying charge of DUI. Shethereafter filed petitions in the two separate DUI proceedings, in thesame county court, seeking to invalidate the prior convictions the Statewas relying on for purposes of enhancement. Mitchell based her separateproceedings on the ground that she was not given a full advisement andaffirmative waiver of her constitutional rights under State v. Hays ,253 Neb. 467, 570 N.W.2d 823 (1997). These motions were overruled in thecounty court on March 16. On March 30, in the third-offense proceeding,the county court enhanced Mitchell’s present DUI to a third offense basedon the two prior convictions, sentenced Mitchell to a $500 fine and 6 monthsin jail, and suspended her driving privileges for 15 years for third-offenseDUI. Mitchell filed a notice of appeal in the third-offense proceedingon March 30. On April 27, Mitchell filed her statement of errors in thatappeal, case No. 10438, which alleged that the county court erred in findingthat her two prior convictions were valid for purposes of enhancement.Also on April 27, Mitchell filed a notice of appeal in each of the twoseparate county court proceedings seeking to reverse the county court orderof March 16 entered in those separate proceedings which denied Mitchellthe relief she sought. On April 30, Mitchell filed a motion to consolidateall three of the cases in district court. That order was granted on June17, with case No. 10447 being assigned to the cases as consolidated.

    In district court, a hearingwas held on the cases as consolidated on July 7, 1998. Our record containsan order in case No. 10438, wherein the district court affirmed the judgmentand conviction of the county court on the third DUI proceeding filed onSeptember 18. Mitchell timely appeals that order.

    As summarized, Mitchell allegesthat the district court erred in using her two prior convictions to enhanceher DUI to third offense when those prior convictions do not comply withher Boykin rights.

    A sentencing court’s determinationconcerning the constitutional validity of a prior plea-based conviction,used for enhancement of a penalty for a subsequent conviction, will beupheld on appeal unless the sentencing court’s determination is clearlyerroneous. State v. Tunender , 4 Neb. App. 680, 548 N.W.2d 340 (1996).

    Mitchell alleges that her priorconvictions are invalid under Boykin v. Alabama , 395 U.S. 238, 89S. Ct. 1709, 23 L. Ed. 2d 274 (1969), State v. Hays, supra , and State v. Irish , 223 Neb. 814, 394 N.W.2d 879 (1986). The U.S. SupremeCourt delineated the requirements for a valid guilty-plea conviction in Boykin and further clarified the guilty-plea requirements in Brady v. UnitedStates , 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). Nebraskahas adopted the Boykin requirements, which consist of an expressand knowing waiver of at least the three following constitutional rights,of which waiver cannot be presumed: the privilege against self-incrimination,the right to confront witnesses, and the right to a jury trial. See Statev. Hays, supra .

    [1,2] Criminal defendants havethe right to challenge the use of constitutionally invalid convictionsfor sentence enhancement in the context of a habitual criminal proceeding. Statev. Tunender, supra . However, jurisdiction is a prerequisite for anappellate court’s consideration of an appeal, and jurisdiction cannot beacquired unless the appellant has satisfied the requirements for appellatejurisdiction. Id . Neb. Rev. Stat. § 25-2729 (Reissue 1995)requires that a party, in order to perfect an appeal from county courtto district court, must file a notice of appeal within 30 days of the finalorder. Although Mitchell’s appeal to district court of her conviction forthe third DUI was timely, she did not file her appeal from the March 16,1998, county court orders in the separate proceedings denying her petitionsfor separate relief until 42 days after the county court’s orders. Althoughall three of these cases were later consolidated for appeal purposes bythe district court, such a consolidation order does not magically convertthe two untimely appeals into timely ones.

    [3-5] It is fundamental thatfor a party to preserve the right to appeal from a final order, that partymust file a notice of appeal within 30 days of the order appealed from. Statev. Tunender, supra . Timeliness of an appeal is jurisdictional. Id .When a lower court does not gain jurisdiction over the case before it,an appellate court also lacks the jurisdiction to review the merits ofthe claim. Schmidt v. State , 255 Neb. 551, 586 N.W.2d 148 (1998).The district court had no jurisdiction over the appeals in the separateproceedings. Therefore, neither do we. Moreover, although unnecessary toour decision, we note that it is questionable whether Mitchell has evenappealed to this court from the district court’s orders affirming the countycourt’s decision in the separate proceedings. Rather, by reference to thecase numbers assigned in the separate district court appeals, Mitchell’sappeal to this court is only from the district court order entered in theappeal of the third DUI, district court case No. 10438, not the consolidatedappeal, case No. 10447.

    Based on the foregoing, weconclude that the only appeal properly before us is from the September18, 1998, district court order affirming Mitchell’s sentencing for third-offenseDUI.

    [6] To prove a prior convictionfor enhancement purposes, the State need only show that at the time ofthe prior conviction, the defendant had, or waived, counsel. State v.Tunender , 4 Neb. App. 680, 548 N.W.2d 340 (1996). At the sentencinghearing, the State submitted exhibits 2 and 3, which were received by thecourt. Those documents prove that Mitchell has been convicted of DUI ontwo prior occasions and that she had, or waived, counsel in both of thoseprior proceedings. As such, we affirm the order of the district court whichaffirmed the judgment and sentence of the county court for third-offenseDUI.

    The judgment of the districtcourt is affirmed.