dissenting.
Although I concur in the partial dissent of Fuller, J. Pro Tern, I write separately to dissent on additional grounds with regard to the 1987 conviction because I believe that the majority should have recognized the violation of Maxey’s statutory rights. As Judge Fuller points out in his persuasive dissent, the majority opinion ignores the more complicated constitutional questions of waiver of counsel for the 1987 conviction. The basis upon which the majority purports to duck these questions is its conclusion that the sufficiency of the waiver of Maxey’s right to counsel in the 1987 case is measured not by statute or the state or federal constitutions, but rather merely by I.C.M.R. 6(c). This would be an entirely acceptable approach if the majority then proceeded to hold that there was an insufficient record to establish a waiver of the right to counsel. We have previously held that constitutional questions ought not be addressed when doing so is inessential to proper resolution of the case. See Sullivan v. Sullivan, 102 Idaho 737, 739 n. 5, 639 P.2d 435, 437 n. 5 (1981). However, the converse of that proposition can never be correct in a system of constitutional jurisprudence; in the absence of a violation of statute or rule a court always must address a properly presented allegation of a constitutional violation. Because Judge Fuller’s opinion sufficiently addresses the question of whether Maxey’s guilty plea in the 1987 case was taken without a constitutionally sufficient record to support a finding of a waiver of his right to *514counsel, I concur in Ms dissent without writing additionally on that point.
Maxey’s 1987 plea was taken in clear violation of I.C. § 19-857. That statute prohibits a court from accepting a defendant’s waiver of the right to counsel unless it is done “in writing, or by other record.” Even then, the waiver must be supported by “find[ings] of record that [the defendant] has acted with full awareness of [the defendant’s] rights and of the consequences of a waiver.”
In 1987, along with all other defendants present for the trial court’s initial mass advisement, Maxey was told by the court the followmg: “You have a right to engage counsel, that’s a right to hire a lawyer and have that lawyer speak for you and represent you in all stages of these proceedings.” Later, when tendering Ms plea of guilty, the following exchange took place between Maxey and the court:
COURT: Do you wish to fill out an application for a court-appointed lawyer to represent you in this?
MAXEY: No.
COURT: Do you give up your right to have a public defender this morning, Mr. Maxey?
MAXEY: Yes.
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?
MAXEY: Yeah.
The Court then twice mquired if Maxey had any questions about his rights:
COURT: Okay. Do you understand all of your rights that I went through at the beginning of court this morning?
MAXEY: I tMnk so, yeah.
COURT: Okay. Well, Mr. Maxey, if you have any questions for me about your rights or what you are charged with or anything up this point in time that I’ve explained about DWI’s that you don’t understand?
Maxey asked the Court why Ms bond was so Mgh, the court explained, and then the following exchange took place:
COURT: Well, any other questions other than why your bond was so high? All right. Mr. Maxey, let’s go back to the citation. Then I have a citation from the eleventh of October alleging operating a motor vehicle under the influence. To that charge how do you wish to plead today, guilty or not guilty?
MAXEY: Guilty.
COURT: Okay. Do you understand that you’re giving up all of your rights except your right to appeal your sentence if you’re not happy with it. And you understand if you have any defense to DWI you’re giving those up today, also?
MAXEY: What’s that mean?
COURT: Well, I’m not allowed to go through the police reports before I come in here so I don’t know—
MAXEY: Oh.
COURT: Anything about your ease.
The absence of any particularized findings is a clear violation of I.C. § 19-857. Then-Judge, now Justice, Silak wrote for a unanimous Court of Appeals wMch recognized this and reversed the trial court’s decision permitting enhancement based on its examination of the above record from the 1987 conviction:
This is the only dialogue between the magistrate and Maxey concerning Maxey’s waiver of counsel. Under I.C. § 19-857, before Maxey could waive Ms right to court appointed counsel1 the court was *515required to find of record that he was acting with full awareness of his rights and of the consequences of a waiver. In making this finding it was incumbent upon the court to consider such factors as Maxey’s age, education, and familiarity with the English language and the complexity of the crime involved. The above quoted dialogue clearly shows that the magistrate failed to inquire of Maxey concerning any of the factors enumerated by the statute— or any other factors — to determine whether Maxey was acting with full awareness of his rights and the consequences of his waiver.
State v. Maxey, 125 Idaho 516, 518, 873 P.2d 161, 164 (Ct.App.1993).
Despite the clear requirement for such a finding in I.C. § 19-857, the majority concludes that it is free to ignore that statute under authority of I.C.R. 11(c). The majority explains that the statute and the rule conflict, and then decides that, because I.C. § 19-857 is a “procedural” statute, I.C.R. 11(c) takes precedence over it. What is the conflict? The majority does not say. There is no language in I.C.R. 11(c) whatsoever dealing with the defendant’s waiver of the right to counsel. Even the requirement that the defendant be advised of three other rights in I.C.R. 11(c)(3) does not discuss the sufficiency of findings that must be made to establish a waiver after the advisement. I simply do not understand how the majority can hold that a statute that describes a specific proceeding for waiver of the right to counsel conflicts with a rule which describes an advisement procedure without ever mentioning the right to counsel.
All of the cases that the majority points to in support of its reasoning involved genuine conflicts between a statute and a rule. State v. Harbaugh, 123 Idaho 835, 853 P.2d 580 (1993), presented a real conflict between the statute providing for dismissal of a criminal action by a court without notice to the parties and I.C.R. 48’s requirement of notice to the parties when the court was taking such action on its own initiative. Id., 123 Idaho at 837 n. 3, 853 P.2d at 582 n. 3. Likewise, in State v. Currington, 108 Idaho 539, 700 P.2d 942 (1985), although I may have disagreed with the majority as to whether the statute at issue was substantive or procedural, even then I did not deny that there truly was a conflict between the statute prohibiting, and the rule providing for, post-conviction bail. Id., 108 Idaho at 541-42, 700 P.2d at 944-46 (Bistline, J. dissenting). Finally, State v. Yoder, 96 Idaho 651, 534 P.2d 771 (1975), involved a clear conflict between a rule allowing for recorded testimony in support of a search warrant and a statute mandating that only written affidavits be used. Id., 96 Idaho at 654, 534 P.2d at 774.
Faced with a clear statutory violation previously recognized by the Court of Appeals, the majority in this case manufactures a conflict between an on-point statute and an inapplicable rule in order to reach the desired outcome and thus hide from its duty to conduct a principled analysis. Because I am unwilling to participate in such an abrogation of responsibility, I respectfully dissent.
. While I agree with the Court of Appeals decision that the findings were insufficient on the question of court-appointed counsel, the magistrate did at least ask Maxey about waiving his right to a public defender. The magistrate completely forgot to ask Maxey whether or not he was waiving his right to retain private counsel.
I believe I.C. § 19-857 obligates a court to make sufficient findings with regard to waiver of both appointed and retained counsel because I.C. § 19 — 852(a)(1) and I.C. § 19-853(a)(l) both require that the defendant be advised of the right to retain counsel and the right to have appointed counsel. Both of those sections are within the "act” of which I.C. § 19-857 speaks in requiring findings of waiver.
The right to private counsel is separate from the right to court-appointed counsel. Even where there is a clear waiver, which is supported by findings, by a defendant of the right to a *515public defender, there still must be a separate waiver, also supported by findings, of the right to private counsel. Only then can it be said that a defendant has fully waived the right to counsel.
There are several reasons why the waiver of private counsel cannot be said to be necessarily included in the waiver of court appointed counsel. Some defendants view with suspicion the appointment of counsel whose salary is paid by the same government that is prosecuting them. Other defendants may resist a public defender based on a belief that their cases will not receive the individual attention they desire due to the public defenders’ caseloads. Even defendants who cannot afford to pay for counsel may hope that a private attorney will represent them pro bono. While I have the highest admiration for the public defenders of Idaho and feel such concerns are entirely unjustified, the possibility of such reservations demonstrates why a separate waiver of the right to retain private counsel is required even where there is a clear waiver of the right to a public defender.