Section 20.17 Right to Counsel

• Library: Criminal Practice 2012 Supp

H. (§20.17) Right to Counsel

A defendant has a right to counsel in every case in which the defendant is potentially liable to a jail sentence, whether a misdemeanor, felony, or municipal ordinance violation. Argersinger v. Hamlin, 407 U.S. 25 (1972).

There has never been a decision by the United States Supreme Court touching upon the rights of a person who is subject only to a fine to have counsel. Argersinger, 407 U.S. at 37, specifically acknowledges that it did not decide that issue.

Conversely, the right to counsel also includes the right to not be represented by counsel. Faretta v. Cal., 422 U.S. 806 (1975). Missouri law has long recognized a criminal defendant’s right to a pro se defense. That right is based on Mo. Const. art. I, § 18(2). Bibbs v. State,
542 S.W.2d 549 (Mo. App. E.D. 1976); see also Rule 31. Rule 31.01 and Rule 31.02 both establish a defendant’s right to counsel essentially from the time the defendant is taken into custody. Rule 31.02(a), however, does provide that the court does not have a duty to appoint counsel if the defendant, after being informed of the defendant’s rights, requests to proceed without the benefit of counsel and the court finds that the defendant has intelligently waived the right to have counsel.

Competence of the defendant in legal issues is not to be considered
in accepting a waiver. Only the knowing, intelligent, and voluntary nature of the waiver is at issue. But see State v. Tilley, 548 S.W.2d 199 (Mo. App. E.D. 1977).

Even when defendants have waived counsel...