dissents.
I concur with the majority opinion as to the 1989 DUI conviction but dissent as to the 1987 DUI conviction.
In my view, the majority opinion should have addressed the more intricate questions concerning Maxey’s right to private counsel and waiver of that right under the United States Constitution.
In State v. Jennings, 122 Idaho 531, 533, 835 P.2d 1342 (Ct.App.1992), the court of appeals did address these questions, but concluded from the record defendant had waived his right to retained counsel in a prior DUI misdemeanor case. This court denied a petition for review. The view adopted in Jennings should be re-examined, because it presumed a defendant waived the right to private counsel based on defendant’s knowledge of his rights, his failure to claim he wanted to be represented, and a silent record that shows no express waiver.
The Jennings view of “presumed waiver” is inconsistent with well established constitutional principles. “A defendant who pleads guilty is entitled to the benefit of counsel, and a request for counsel is not necessary.” Rice v. Olson, 324 U.S. 786, 788, 65 S.Ct. 989, 991, 89 L.Ed. 1367 (1945). “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962). While these cases deal with court appointed counsel, the principles should apply equally to a waiver of private counsel.
I.C.R. Rule 10(b), which relates to felony cases, provides:
No proceedings may take place prior to the appointment of counsel or until the defendant has had a reasonable period of time to obtain counsel, or unless the defendant waives the right to counsel. (Emphasis added.)
This rule applies to misdemeanor cases to the extent it is not in conflict with specific rules regarding the processing of misdemeanor charges. M.C.R. Rule 1. Maxey was also entitled to be advised of the procedural rights provided in the Idaho Criminal Rules. See M.C.R. Rule 6(c). The Jennings view that presumes a waiver is inconsistent with these procedural rights.
Like Jennings, the transcript in this case shows the magistrate failed to obtain an express waiver of Maxey’s right to private counsel in the 1987 proceedings. The transcript shows:
THE COURT: Do you give up your right to have a public defender this morning, Mr. Maxey?
A. Yes.
THE COURT: Okay. I’ll note that waiver in your file then. You can hire a lawyer to represent yourself, whatever you’d like to do, okay?
(T. p. 14, Is. 9-15.)
The magistrate’s clear message to Maxey is that he still had a right to private counsel. The absence of legal counsel’s guiding hand to assist Maxey is shown by a later exchange between Maxey and the magistrate:
THE COURT: Okay. Do you understand that your giving up all your rights except your right to appeal your sentence if you’re not happy with it. And you understand if you have any defenses to DWI you’re giving those up today, also?
A. What’s that mean?
THE COURT: Well, I’m not allowed to go through police reports before I come in here so I don’t know—
A. Oh.
THE COURT: Anything about your case. A. Oh. (T. p. 16, Is. 9-20)
In my view, the magistrate did not comply with the recognized standards for waiver of Sixth Amendment right to counsel as dis*513cussed in Van Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); and Ebersole v. State, 91 Idaho 630, 428 P.2d 947 (1967). Van Moltke sets forth the standard in the following terms:
“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.
332 U.S. at 723, 68 S.Ct. at 323, 92 L.Ed. at 320 (citations omitted) (emphasis added).
The “colloquy” in this case, where the defendant merely responded “yes” to the magistrate’s question of whether he gave up his right to “have a public defender this morning”, is precisely the type of bare-bones waiver that Van Moltke cautioned against so long ago. That colloquy is insufficient to meet the state’s burden of showing that the waiver was knowing and voluntary. State v. Wuthrich, 112 Idaho 360, 732 P.2d 329 (Ct.App. 1986).
Two critical components are entirely lacking from the 1987 waiver: (1) a knowing waiver of the right to private, retained counsel; and (2) warnings that would impart an “apprehension” of allowable enhanced punishments that might accrue in the future.
In my view, when in 1987 the magistrate obtained Maxey’s plea of guilty without an express waiver of his right to private counsel, it was an uncounseled plea to a misdemeanor offense which might be used later to enhance an offense to a felony. Such a plea is not valid for all purposes and constitutes a violation of the Sixth Amendment to the United States Constitution because it could be used to impose an increased term of imprisonment upon a subsequent conviction. See: Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980); U.S. v. Brady, 928 F.2d 844 (9th Cir.1991).
BISTLINE, J., concurs.