dissenting.
I dissent respectfully, but emphatically.
The sixth amendment right to counsel embodies two distinct privileges. The right to assistance of counsel is protected by ensuring ample defense preparation time. See Powell v. Alabama, (1932) 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Hartman v. State, (1973) 155 Ind.App. 199, 292 N.E.2d 293. And, the right to competent counsel is guaranteed by providing adequate legal representation. See Dillon v. State, (1983) Ind., 448 N.E.2d 21; Davis v. State, (1983) Ind., 446 N.E.2d 1317.
Kimball's appeal is directed to the allegedly deficient preparation time afforded his counsel. Our focus in such cases is whether "the time of the appointment of counsel and the conduct of trial were such that the inadequacy of preparation time amounts to deprivation of the right to effective assistance of counsel." Marshall v. State, (1982) Ind., 438 N.E.2d 986, 988 (emphasis supplied). "The adequacy of time allowed for preparation must be determined on a case by case basis, considering the totality of the circumstances, including the complexity of the issues, the necessity for pretrial motions, the necessity to interview witnesses and whether the defendant is able to assist in the preparation." Jones v. State, (1978) 175 Ind.App. 343, 345, 371 N.E.2d 1314, 1316, trans. denied.
The majority apparently views the appearance of successive deputy public defenders as new appointments of counsel. I do not. Only one appointment of counsel occurred -designation of the public defender's office to represent Kimball, which it did for over two months prior to trial. Once appointed, the public defender's office functioned as one unit, pooling its resources and manpower to achieve the best possible representation of its multiple clients. See, e.g., Harris v. State, (1981) Ind., 427 N.E.2d 658 (when defendant does not employ private counsel, ke has no right to choose court appointed counsel).
Reviewing the totality of the circumstances from this perspective, I can find no violation of Kimball's sixth amendment *247rights. Kimball was accompanied by a public defender at his first court appearance on November 28, 1982, when he waived arraignment and pled not guilty. Record at 9. From that day to the day of trial, February 1, 1983, Kimball's counsel sought on his behalf a waiver of jury trial, record at 11, a speedy trial, record at 12, a bond reduction, record at 12, discovery from the State, record at 14-17, and two trial continuances. Record at 21, 40-46. Defense counsel also interviewed the State's only witness, the victim, record at 40-41, and public defender Schwartz, who had conducted the majority of Kimball's pretrial preparations, and public defender Ladd, who actually presented Kimball's defense, both indicated to the trial judge that public defender Ladd was adequately briefed on the case. Record at 46-47.
By comparison, in Marshall, supra, our supreme court unanimously agreed that defense counsel had been given adequate preparation time in a case which resulted in the defendant's conviction of burglary of a dwelling and imprisonment for twelve years. The siz days counsel spent preparing the defense was sufficient because immediate reciprocal discovery occurred, the State called only three witnesses, all of whom were accessible before trial and were cross-examined by counsel at trial, and counsel indicated no need for more time. Kimball's counsel spent more than two months actively preparing for trial of a relatively straightforward criminal reck lessness case. See also Collins v. State, (1982) Ind., 431 N.E.2d 802.1
If the rationale of the majority prevails, it would often be impossible for either a private law firm or the public defender's office to ever adequately represent criminal defendants, and the wheels of justice would turn even slower.
Kimball's conviction should be affirmed.
. During the sentencing hearing, Kimball indicated he was satisfied with the competency of public defender Ladd at trial. However, although Kimball could point to nothing that he thought public defender Ladd could or should have done differently, he would have preferred representation at trial by public defender Schwartz, with whom he had personally spoken and worked with in preparation for trial, Record at 91-92.