No. 92-K-1778 | La. | Oct 2, 1992
Lead Opinion
In re Finigan, John; — Defendants); applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. CR91-0629; Parish of Sabine, 11th Judicial District Court, Div. “A”, No. 38,211.
Granted. The record in this case shows that two months after permitting retained counsel to withdraw, and advising the defendant that he could retain new counsel if it did not further delay the proceedings, the trial court then accepted the defendant’s waiver of counsel on the day of trial without inquiring into the basis of that decision or the defendant’s capacity to make an informed waiver, including his awareness of the dangers and disadvantages of self-representation. See State v. Strain, 585 So. 2d 540" date_filed="1991-09-09" court="La." case_name="State v. Strain">585 So.2d 540 (La.1991). Under these circumstances, the record does not support a finding of either an implicit or explicit waiver of the Sixth Amendment right to counsel. The defendant’s conviction and sentence are reversed and this case is remanded to the district court for all proceedings in accord with the law.
Dissenting Opinion
dissents from the order. Defendant, after being advised of his right to counsel and to appointed counsel if indigent, was given appointed counsel and later hired a private attorney. When private counsel moved to withdraw, the trial judge granted the motion while advising defendant that his retaining a new lawyer would not be cause for delaying the trial. When the matter came for trial almost three months later, the judge informed defendant of his right to counsel, and defendant announced he was representing himself. Under these circumstances defendant waived his right to counsel, and he did so knowingly with obvious cognizance of the need for assistance of counsel. Allowing defendant to play with the system takes control of the court from the trial judge.