dissenting.
I respectfully dissent. It seems to me that our decision is in direct and irreconcilable conflict with State v. Harvey, 692 S.W.2d 290 (Mo. banc 1985), and with State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595 (1939). Defendant was put on trial without any meaningful representation by counsel. Prejudice is presumed in such cases.
I have recast the facts as follows, in order to present defendant’s point, namely, that the court’s denial of a continuance for the purpose of allowing his attorney time for preparation for trial effectively deprived him of his Sixth Amendment right to effective legal representation:
Defendant was represented by the Jackson County Public Defender’s office, particularly by Mr. Patrick Berrigan, a staff attorney of that office. Defendant had told Mr. Berrigan that he intended to plead guilty to the charge. A plea bargain was struck and the prosecutor had agreed to recommend a sentence of four years’ imprisonment. Mr. Berrigan made no preparation for trial.
Defendant, who was in jail in default of bond, wanted to remain in Jackson County as long as possible in order to remain accessible to his family. To accommodate defendant’s desires in this matter, it was Mr. Berrigan’s purpose to wait until the trial date to enter the guilty plea, rather than to dispose of the case earlier. There is no indication that the trial judge knew before the day of trial that the defendant intended to plead guilty, although the prosecuting attorney had been advised.
The case was set for trial for August 15, 1985, in Division 10. Berrigan, returning from a two-week vacation, learned of the setting in the evening of August 14. On the morning of August 15 at about 8:45 o’clock he telephoned the court clerk of Division 10. He arranged with the clerk to have the defendant present at 2:30 p.m. of that day to enter the guilty plea.
Berrigan then went to Independence where he was slated to be in court. While there during the morning he received a telephone call that he was to return to Kansas City to Division 10 to try the Wilson case. Probably during this telephone call, or perhaps when he arrived at Division 10 (the record indicates the time was approximately 11:30 a.m.), he learned that the judge would not accept Wilson’s plea of guilty. The judge’s refusal to accept the guilty plea was based upon a motion which Wilson had filed pro se without Berrigan’s knowledge. This motion requested the appointment of new counsel, on the ground that defendant felt that Berrigan would not represent him vigorously— “[t]hat on every interview Mr. Berrigan talks nothing but how defendant should agree to any plea bargain offered by the prosecutor,” and “[t]hat defendant feels that his .present counsel is working in *190concert with the prosecutor”. Wilson withdrew this motion at the beginning of the trial, and reiterated his desire to enter a guilty plea, but the trial judge declined to accept it and insisted upon an immediate trial.
Berrigan pleaded his lack of preparation and asked for a 30-minute recess to talk with the defendant. The court allowed five minutes for that purpose, telling Berrigan he could talk with his client after voir dire was completed. The jury selection process began at once. Presumably a luncheon break was later taken. At 3:30 o’clock p.m. the jury selection process had been completed and proof of the defendant’s prior convictions had been made to the court. Mr. Berri-gan then requested a continuance until the next morning at 9:00 o’clock a.m. The stated ground for his request was that he was not prepared for trial, but he expected he “could be prepared to try it as early as tomorrow morning”. The request for the continuance was overruled. The trial proceeded. The prosecutor’s opening statement and the presentation of the evidence took an hour. Mr. Berrigan was present but made no opening statement and did not cross-examine the state’s witnesses. He had explained to the court in connection with his continuance applications that he was unprepared to do so. Defendant offered no evidence. The trial was adjourned until the following morning at 9:00 o’clock a.m., when the instructions were read to the jury and the state made its argument. No argument was made in defendant’s behalf. The jury retired at 10:45 a.m. and returned with its verdict at 11:33 a.m.
The majority says that “even if prejudice could be found in this factual context”, “if (defendant) was truly left without meaningful representation by counsel” he has “no one to blame but himself” — that he was “merely playing the system”. I am unable to put such an egregious construction upon defendant’s conduct. In case after case we see similar efforts at self-help by an accused, usually ill-advised, nearly always ineffective, but when have we ever held that he thereby forfeited or waived his right to effective legal representation? The law in its majesty and its might has a variety of less heavy-handed methods with which to deal with obstructive conduct, if defendant’s actions can be so characterized, without stripping him of a basic constitutional right.
The state argues in its brief that “no prejudice is discernible from the record, since it is undisputed that the appellant was guilty and, in fact, attempted to plead guilty to the charge.” The majority opinion says: “It is hard to imagine what preparation or trial strategy could have been accomplished in the time counsel asked for. Had the court granted the continuances or recesses requested it is impossible to say what counsel could have done to be ‘prepared’.”
This falls with a strange and jarring sound upon the ear. Implicit in this is the idea that if after the trial it appears from hindsight that the accused’s defense would have been hopeless, then it does not matter that his counsel was unprepared for trial.
When the court declined to accept defendant’s guilty plea, he went to trial upon a plea of not guilty. He was clothed with the presumption of innocence. It was up to the state to prove him guilty beyond a reasonable doubt. The jury was not obliged to believe the state’s evidence. The defendant was entitled to the best defense possible, even though it may seem in retrospect that he had only the dimmest prospects for an acquittal. We have learned to be wary of a verdict based upon evidence which is unresisted and untested in adversarial fire.
Descending from that lofty plane to the technicality of the absence of a written and sworn request for a continuance: The absence of a sworn writing did not by itself justify the denial of the request. What the defendant requested was not a continuance within the meaning of Rule 24.09, but was merely a recess or an adjournment of the trial without aborting the trial or the trial setting. It is treated as a trial incident, rather than as a “continuance”. Louisville *191and Southern Indiana Traction Co. v. Montgomery, 186 Indiana 384, 115 N.E. 673, 675 (1917); State v. Smith, 665 S.W.2d 663, 666 (Mo.App.1984); State v. Cook, 637 S.W.2d 110, 111 (Mo.App.1982); Bezat v. Home Owners Loan Corporation, 55 Ariz. 85, 98 P.2d 852, 855 (1940). See generally 88 C.J.S. Trial § 45 (1955).
I would reverse and remand for a new trial.