concurring.
[¶ 16] I concur in the majority opinion. I write separately, however, to provide some guidance to trial courts faced with implementing this decision and the decisions in State v. Wicks, 1998 ND 76, 576 N.W.2d 518, and State v. Harmon, 1997 ND 233, 575 N.W.2d 635.
[¶ 17] The majority correctly holds the record does not evidence a knowing and intelligent waiver of the right to counsel at the point Poitra explained he had “no other alternative but to defend myself.” The right to counsel and the right to self-representation, however, are mutually exclusive, and the right to self-representation must be unequivocally invoked. Reese v. Nix, 942 F.2d 1276, 1280 (8th Cir.1991). If a defendant does not request self-representation, or if the request is equivocal, a trial court does not err by not allowing a defendant to represent him or herself, and the trial court need not undertake a Faretta inquiry to determine whether the waiver is knowing and intelligent. See Hendricks v. Zenon, 993 F.2d 664, 669 (9th Cir.1993); Reese, at 1280; Bowden v. State, 588 So.2d 225, 229 (Fla.1991).
*125[¶ 18] Thus, when Poitra’s appointed counsel sought to withdraw because Poitra intended to hire a different attorney, the trial court should have denied the request until Poitra informed the trial court new counsel had in fact been obtained. By this approach, were Poitra unsuccessful — as hindsight shows he was — he would still have his constitutionally guaranteed right to counsel in place. In addition, because Poitra was asking for a different attorney and not asking to represent himself, the trial court would not have had to worry about Poitra successfully claiming denial of the right to self-representation. The decision in Harmon should not be read as eliminating the need for a defendant to unequivocally request self-representation and for the trial court to determine whether a defendant’s unequivocal request is knowing and intelligent. Rather, Harmon’s recognition of a “functional” waiver should be limited to situations where a defendant refuses to choose between the right to counsel and the right to self-representation. Cf Wicks, at ¶ 20-22 (explaining Wicks, unlike Harmon, was willing to go to trial with her current attorney).
[¶ 19] I concur in the opinion of the Court.
[¶ 20] VANDE WALLE, C.J., and NEUMANN, J., concur.