dissenting.
I dissent to Issues I and II.
I.
I continue to believe that in habitual offender proceedings the State is bound by the same rules of collateral estoppel and double jeopardy which apply to the proceeding upon the main felony charge(s). Harris v. State, (1981) Ind., 427 N.E.2d 658, 663 (Prentice, J., dissenting); Baker v. State, (1981) Ind., 425 N.E.2d 98, 103 (Prentice, J., dissenting). Harris and Baker appear to have settled the issue under Indiana law, but with respect to the United States Constitution, the defendant may yet prevail. Recently the United States Supreme Court granted certiorari to review Estelle v. Bullard, (5th Cir. 1982) 665 F.2d 1347, cert. granted, (1982) - U.S. -, 102 S.Ct. 2927, 73 L.Ed.2d 1328 (1982), which presents the issue in the context of a habeas corpus proceeding that arose from an application of Texas’ recidivist statute.
Defendant’s motion to dismiss the habitual offender charge should have been granted; however, for the reasons stated below, the case should be reversed in its entirety and remanded for a new trial.
II.
On June 23, 1980, just prior to trial, the trial court, Defendant, and defense counsel, Mr. Lawrence, engaged in a discussion with respect to whether or not Defendant would represent himself at trial. Defendant, who spent pre-trial time in jail, repeatedly asserted that Mr. Lawrence had not spoken to him about the case. Mr. Lawrence told the *1326trial court that he had subpoenaed seven witnesses whose names had been furnished by Defendant and had spoken with three or four of the witnesses and that he intended to confer with two more of them before they testified. The trial court ruled as follows:
“THE COURT: Well, we are not going to get into an argument. I have overruled your motion. Mr. Lawrence is your attorney and you are going to abide by that.”
The June 23,1980 pre-trial discussion was the last in a series of events in which Defendant had asserted to the trial court that he was dissatisfied with Mr. Lawrence’s representation. On October 9, 1979 Defendant filed a letter with the trial court, which contains the following:
“If it’s not my attorney who sees to it that my rights are not violated then to whom do I go, to see to it that my rights are not violated any further. It has been obvious to me from the start that Mr. Lawrence, is not serving my best interest or for this fact, no one who he seems to be representing in the Marion County Jail. I am now filing charges with the Indiana Supreme Court Disciplinary Commission, in hopes to remedy some of us from his neglect.
“If there is nothing that can be done without proper representation, I’d like to again make a request for a new attorney and ask that be as quickly as possible.” (Emphasis in original).
Nothing came of the charges that Defendant filed with the Disciplinary Commission; however, the record is unequivocal that Defendant did not want Mr. Lawrence to represent him in this matter. In Faretta v. California, (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 the United States Supreme Court ruled that a State may not force a lawyer upon a criminal defendant who wishes to conduct his own defense. The majority acknowledges Faretta but, without concern for the record, blindly follows Russell v. State, (1978) Ind., 383 N.E.2d 309, where we stated:
“Upon consideration of the various aforementioned interests involved in these Faretta procedural problems, we conclude that the right of self-representation must be asserted within a reasonable time prior to the day on which the trial begins. Morning of trial requests are thus per se untimely. None of the interests involved here, the right of self-representation, the right to counsel, or the interest in preserving an orderly criminal process, are furthered by the allowance of a last minute request such as was made in the present case. On the other hand, experience has shown that day of trial assertions of the self-representation right are likely to lead to a rushed procedure, increasing the chances that the case should be reversed because some vital interest of the defendant was not adequately protected, (citation omitted). We do not think that the requirement of a pre-trial assertion is in derogation of the Sixth Amendment right of self-representation. It is one thing to recognize that this right exists as a matter of the defendant’s considered will and intelligent choice, as discussed in Faretta; it is another thing to take an absolutist view of the personal autonomy interest which would enshroud last minute whim and caprice as a constitutional guarantee.” Id. at 314.
In light of the record in this case, I have reconsidered this issue, and I now believe that the dissents of Justice DeBruler and Justice Hunter in Russell express the correct position.
In Russell the Court expressed concern that morning of trial assertions of the right of self-representation would cause delay. Justice Hunter aptly observed, however, that the hearing to determine if the defendant understands the consequences of his request to represent himself would not pose a serious inconvenience. The record clearly reflects that Defendant had, prior to trial reached the decision that Mr. Lawrence should not represent him. Giving effect to Defendant’s constitutional right of self representation does not “enshroud last minute whim and caprice as a constitutional guar*1327antee.” See Russell v. State, supra. It is the “right to choose” and not the “right to choose rationally” that is protected. It may, therefore, be exercised on whim and caprice, if such be the defendant’s will, for the court’s only obligation is to assure that it is exercised knowingly and voluntarily.
Additionally, on the morning of trial the trial court entertained challenges to the habitual offender count and a motion to strike the jury panel, in addition to Defendant’s request to represent himself. As this record demonstrates, the potential for delay on the morning of trial exists in areas wholly unrelated to the assertion of the right of self-representation. We need not list every single motion which would be the source of a delay but which, nevertheless might be timely, even if filed on the morning of trial.
We also note that the record contains no hint that had Defendant been allowed to represent himself, he would have promptly moved for a continuance. We have no doubt that a defendant may not employ such gamesmanship so as to delay his trial and to inconvenience the court, the State, the jurors, and the witnesses. See German v. State, (1978) 268 Ind. 67, 70-71, 373 N.E.2d 880, 882.
Lastly, as Justice DeBruler cogently recognized in his dissent in Russell, the right of self-representation is of constitutional magnitude. Defendant’s election to represent himself may have been both foolhardy and ill advised as the trial court apparently found.
“THE DEFENDANT: I’m not trying to make a comparison between myself and Mr. Lawrence. I’m trying to think more of what would be to the best for defending me.
“THE COURT: Well, I recommend you let Mr. Lawrence make those decisions as to what is best for defending yourself.
“THE DEFENDANT: Doesn’t a defendant have a right to defend himself—to represent himself?
“THE COURT: A defendant has a right to represent himself within certain bounds and that being I’d rely on the expertise of counsel who had gone through law school and passed the bar examination and been admitted to practice in this state. He is in much better shape to defend your rights and yourself than you yourself sir without the educational background and experience in the trial court itself.”
The trial court, in effect, denied the defendant a hearing and summarily denied his request to proceed without counsel. It was only necessary for him to advise Defendant of the risks inherent in waiving his right to counsel and to ascertain if he understood such . advisements and was competent to proceed. A defendant who is competent to stand trial with the assistance of counsel is competent to waive his right to counsel. Under Faretta the right to represent oneself belongs to the defendant; not to the trial court. Defendant requested that he be allowed to represent himself at trial, and the trial court’s denial thereof, while unquestionably well intended and probably in Defendant’s best interest, was error, which requires a new trial.
The judgment of the trial court should be reversed, and the case remanded for a new trial, without counsel or with hybrid counsel as the trial court should determine. See Duncan v. State, (1980) Ind., 412 N.E.2d 770, 772-73; Swinehart v. State, (1978) 268 Ind. 460, 465-66, 376 N.E.2d 486, 490.
HUNTER, J., concurs in part.