(dissenting).
The ruling of the trial court appéars to me to be based upon sound law. and good public policy; therefore I dissent from the position of the majority and would affirm the decision of the superior court.
Perhaps the majority’s difficulty stems from the statement of the question: “Was the defendant an indigent ? ” The proposition is incomplete in that the real ques*114tion is not only was he indigent but was he unable to obtain counsel or have counsel provided for him. Under the Sixth and Fourteenth Amendments the accused has the right to the assistance of counsel for his defense, and one charged with a crime who is unable to obtain counsel must be furnished counsel by the state. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
In this state an accused who is unable to obtain counsel due to indigency is furnished an appointed attorney or, in counties with a population over 100,000 persons, may be furnished a public defender. In Maricopa County the Board of Supervisors has chosen to establish a public defender system, and, pursuant to A.R.S. § 11-584, the public defender was required to:
“1. Upon order of the court, he shall defend, advise and counsel without expense to the defendant any person who is not financially able to employ counsel and who is charged with the commission of a felony. The public defender shall also defend, advise and counsel such defendants at the preliminary hearing and prosecute all appeals to a higher court which arise from those cases which he is defending.”
The superior court appointed the public defender to represent the petitioner, and the public defender has represented him throughout the proceedings, and there is no indication that that officer will not continue to represent him. In fact, the matter presented to this Court clearly indicates that the public defender intends to continue to represent the petitioner in the criminal case in association with private counsel secured by the accused’s mother who will be paid the sum of $5,000 for his services.
When the matter of the association of private counsel arose the county attorney sought under Rule 6.4(c) a determination of the status of the defendant. Private counsel had not filed an appearance as required by Rule 6.3(a), and under the circumstances the trial court correctly ruled that the defendant was still indigent, but the trial court ruled that the public defender would continue to represent the defendant until such time as the private attorney became attorney of record; at which time the public defender would be relieved of further participation in the case. The public defender and private counsel, being dissatisfied with the ruling, brought the matter here for review.
The majority seeks to justify their decision on the basis that there is no specific rule against the association of private counsel with the public defender. The impossible contradiction of privately paid counsel and a public defender paid by the taxpayers does not seem to cause the majority any problems. In fact the author of the opinion contends that this situation is not the raid on the taxpayers contended by the county attorney but is indeed a blessing because privately retained counsel “can relieve the public defender of both time and money that he might have to spend if he had the sole responsibility of the defense.” The public policy involved in the creation of the public defender’s office was to provide counsel for those financially unable to employ counsel. The ruling of the majority will not be a saving to the taxpayers but it will encourage abuse of the public defender system by relatives and others who might normally exert the effort to retain private counsel instead of the public defender. It appears to me that the object and intent of providing counsel to those unable to secure counsel is contorted by this ruling and nothing but mischief can follow.
The ruling of the majority establishes three classes of defendants — those who can employ counsel, the indigent who cannot, and a third class who have both employed counsel and furnished counsel. All are apparently equal before the law, but, though I hesitate to suggest it, some appear more equal than others under the majority’s ruling.
Again, contrary to the majority’s view, I find that the county attorney had standing to object to the association of private counsel with the public defender. The actions of the county attorney were in no sense an attempt to dictate the selection of *115counsel by the accused. Under the 1973 Rules of Criminal Procedure the county attorney had the right to request that the superior court consider whether the accused was an indigent and financially unable to obtain counsel. Rule 6.4(c). Additionally, this Court has stated that the county attorney is a constitutional officer charged with the responsibility of enforcing the public laws. State ex rel. Berger v. Myers, 108 Ariz. 248, 495 P.2d 844 (1972). It was not only the right but the duty of the county attorney to oppose the misuse of a county office such as the public defender. Under A.R.S. § 11-532 the county attorney has the duty to “oppose claims against the county which he deems unjust or illegal.” It was the contention of the county attorney that the defendant was able to employ counsel. The trial court found otherwise. When the public defender attempted to associate private counsel the county attorney opposed such association as illegal. In my view not only did the county attorney have standing to advance this objection, but he had the duty to oppose the misuse of a county office and service, and his actions in this case should be commended for his attempt to resist that which he deemed to be illegal or unjust.