dissent">BARDGETT, Judge,

dissenting.

I respectfully dissent because I believe that appellant was denied the fundamental right secured by Mo.Const. art. I, § 18(a), to be represented at trial by counsel and, to that end, should have been afforded a short continuance on the first setting to try to obtain an attorney.

At the risk of appearing presumptuous, it seems that the reasoning of the principal opinion goes something like this:

1) appellant had no constitutional right to appointed counsel, even if indigent in this case;

2) appellant had no excuse for not getting an attorney before trial, even though indigent;

3) appellant had no right to complain about not getting a continuance to obtain an attorney because he was indigent and could not afford one anyway.

And, even if it was error for the trial court to have refused a continuance, no relief can be granted in this writ of error coram nobis case because

1) the alleged error should have been presented on appeal and there is no excuse *335for not appealing after judgment or seeking permission to file a late notice of appeal, nor has appellant offered any sound reasons for not appealing; and

2) the alleged error was known at the time of trial and did not rise to a level of constitutional infringement or a clear violation of a fundamental right.

Yet, when all the facts are considered, as contained in the record, the trial court’s denial of a continuance in order for appellant to retain counsel was, in my opinion, an abuse of discretion prejudicially affecting the fundamental and constitutional rights of appellant under Mo.Const. art. I, § 18(a) and under this Court’s holding in State v. McClinton, 418 S.W.2d 55 (Mo. banc 1967), which is discussed later.

Prior to the instant proceedings, appellant had been convicted of issuing an insufficient funds check in Benton County on July 18, 1975, sentenced to five years’ imprisonment, and placed on probation by the court. On July 17, 1978, appellant was arrested and charged with driving under the influence of alcohol. On the date of his arrest, he retained private counsel. Payment for counsel’s services was the cancellation of a bill for repair services due by the attorney to appellant.

On August 1,1978, private counsel sought to withdraw and according to the court’s docket sheet the motion was granted the same day. Yet, appellant did not know of the court’s action until August 13th. There is no indication anywhere that I can find that “defendant had discussed this proposed withdrawal with counsel”, as stated in the principal opinion. In fact, appellant testified that his attorney never told him why he was withdrawing. At most, the record indicates that sometime around August 1st appellant received notice that a motion to withdraw had been filed. But, appellant did not know that he did not have an attorney until August 13th, only a couple of weeks before the trial was to begin.

On September 1,1978, appellant appeared in court and requested a continuance to secure legal counsel. He did not request to have an attorney appointed. The trial court denied the request and ordered him to trial. Hardly a case fitting the description in the principal opinion of one where appellant “agreed to proceed pro se,” but rather, as the principal opinion admits, it was a situation where appellant “had no choice.” As justification for its denial of appellant’s request, the trial court noted on its docket sheet that appellant had time to find an attorney and by failing to do so had waived that right, even though appellant received no income during the period following his arrest (July 17, 1978) and the date of trial (September 1, 1978) and was possessed of assets consisting only of a truck and tools which had been mortgaged to their value.

About two months after appellant’s DWI conviction, his probation on the check conviction was revoked. The sentence of five years’ imprisonment was ordered executed on November 17, 1978, and he was imprisoned. While in prison, as a result of the revocation and pursuant to the sentence on the check charge, appellant, on January 2, 1979, filed a motion under Rule 27.26 to vacate the conviction and sentence of the driving while intoxicated conviction alleging that he was not afforded his right to counsel. Later, appellant’s 27.26 motion was changed to an application for a writ of error coram nobis. In an opinion written prior to this cause being transferred, the court of appeals, after an extensive examination of proper use of writ of error coram nobis, concluded that “[t]he matter is properly one for a writ of error coram nobis and not a regular 27.26 motion because appellant does not attack the judgment for which he is in custody.”

After his DWI conviction, appellant did not file an appeal within the prescribed time limits. But then appellant is not a lawyer. The principal opinion agrees that appellant was without legal assistance until March 1979 — long after the time for a direct appeal had run. But the principal opinion’s assertions that appellant could have filed a late notice of appeal and that “in all proceedings since March, 1979 appellant has been represented by counsel” are, I believe, somewhat misleading.

*336Appellant did what he knew how to do. He was in prison and so he filed a pro se 27.26 motion on January 2, 1979, just four months after conviction. According to the court’s docket sheet, the case was called on January 26,1976. Neither appellant nor an attorney for him appeared. Appellant was in prison and he didn’t have a lawyer. The court continued the hearing until March 2, 1979, directing that the clerk notify appellant that unless he appeared in person or by an attorney on that date the motion would be “dismissed for want of prosecution.” Of course, on March 2d, appellant did not appear in- person because he was in prison in Missouri, nor did an attorney appear because appellant was indigent, and so his motion was dismissed.

On March 30, 1979, the court on its own motion set aside the dismissal and appointed an attorney for appellant. A new hearing was set for April 23,1979. On April 19, 1979, the appointed attorney filed a motion to withdraw. On April 23d the motion was grantéd and a new attorney appointed. There is no indication appellant played any part in the withdrawal of the attorney. Appellant remained in prison. A hearing was set for May 14, 1979. On May 3d, the second attorney sought to withdraw and the judge granted that motion on May 14th. Appellant wasn’t there — he was in prison. On May 14th, another attorney was appointed with another hearing set for June 4, 1979. At the June 4th hearing, appellant was in court with his'appointed counsel and the court reinstated, on the record, its order of March 2,1979, dismissing appellant’s 27.-26 motion filed January 2, 1979. This appears to be with appellant’s consent so as to proceed with a writ of habeas corpus in federal court and also because this Court denied a petition for writ of mandamus in Dearing v. Moniteau County, S.C. No. 61251. The sequence is difficult to follow, but on September 13, 1979, a petition for writ of error coram nobis was filed in Moniteau County Circuit Court. The transcript reflects that the judge, on September 13, 1979, was trying to determine whether to proceed on the previously filed 27.26 motion or the writ of error coram riobis. On that same day, September 13, 1979, the court was asked by appellant’s attorney to consider appellant’s motion as a writ of error coram nobis and the state requested a continuance to consider the writ, even though the same issue had been before the court since January 2, 1979, in the 27.26 motion. A continuance was granted until October 18, 1979, but on that date the matter was continued again until October 23, 1979, when the hearing was finally held. This was several weeks after the date appellant would have had “the opportunity to file for late notice of appeal.”

Appellant was not actually or continually represented by counsel until final counsel was appointed on May 14, 1979. Although the principal opinion asserts that appellant was represented in all proceedings after March 30, 1979, which was when the first attorney was appointed, the only proceedings that actually took place between March 30th and June 4th consisted of withdrawals by and appointments of court-appointed attorneys. .Due to delays occasioned by the court, state, and continued withdrawals of appointed counsel for no reason indicated on the record, appellant should not be blamed for not filing a late notice of appeal, especially when his application for writ of error coram nobis was not even heard until October 23, 1979, or ruled on by the trial court until February 1,1980. It seems to me that the principal opinion penalizes appellant for being poor and failing to have any legal acumen. Of course, the lack of legal acumen on the part of nonlawyers is the reason for the constitutional requirement that a person is entitled to have a lawyer represent him in criminal proceedings. And, as stated previously, I believe that the trial court’s denial of a continuance in order for appellant to retain counsel at his DWI trial was an abuse of discretion violating appellant’s substantial rights under Mo.Const. art. I, § 18(a).

In all criminal prosecutions a defendant has the right to appear and defend in person and by counsel as provided in Mo.Const. art. I, § 18(a). See also Rule 31.02(a). Simply, “[a] defendant in a criminal case, *337even where it involves only a misdemeanor, has an unquestioned right to retain counsel to handle his defense.” State v. Drane, 581 S.W.2d 89, 91 (Mo.App.1979). Hence, the issue in this case is not whether the trial court should have appointed counsel for appellant as an indigent or was required constitutionally to do so; but rather, whether the trial court should have granted appellant a continuance in order for him to obtain an attorney of his own. State v. McClinton, 418 S.W.2d 55 (Mo. banc 1967), is similar factually to the instant case and, I believe, dispositive.

In McClinton, the defendant was charged with and convicted of the misdemeanor of stealing under $50. He had been arraigned on March 17, 1965, and the trial was set for 28 days later, April 15, 1965. Defendant appeared in court and requested time to procure an attorney. The trial court did not afford defendant a continuance to obtain counsel. As this Court noted:

At the beginning of the trial, the trial judge interrogated the defendant in the following manner:

“THE COURT: Are you ready for trial?

A Yes, sir.

THE COURT: Do you have a lawyer?

A No, sir.

THE COURT: Do you wish to go to trial without a lawyer?

A Well, if you give me a chance to get one, I will get one.

THE COURT: You have had a lot of chance to get a lawyer. You have been out on bond for over a month.

A Yes, sir.

THE COURT: Why didn’t you get a lawyer?

A Well, I didn’t think it was necessary to. I am not guilty of the crime.

THE COURT: That is what we are going to find out. What changed your mind?

A Well.

THE COURT: What?

A I guess because you just said that, that was all.

THE COURT: What did I say?

A Did I want to go to trial with a lawyer.

THE COURT: I said, do you want to go to trial without a lawyer.

A Without, yes, sir.

THE COURT: All right. Have a seat there.”

Id. at 58.

Although the defendant in McClintondid not preserve or present the issue on appeal, this Court believed the right to have an attorney to be of such magnitude that it sua sponte considered whether it was error for the trial court to refuse McClintonadditional time in which to procure counsel. Citing Mo.Const. art. I, § 18(a), the McClintonCourt stated, “The denial of a person’s right to be represented by counsel constitutes a violation of a constitutional right and may justify the reversal and remand of a judgment of conviction.” 418 S.W.2d at 58.

After examining the defendant McClin-ton’s efforts at cross-examining the state’s witnesses, his taking the stand and permitting the state to question him on direct examination, and the trial court’s recalling the prosecuting witness to the stand at the conclusion of defendant’s testimony, this Court observed that “[t]he record demonstrates ways in which legal counsel could have been of service to the defendant.”

Judge Storckman, writing for a unanimous Court, stated:

Undoubtedly the defendant was negligent in not obtaining counsel during the interval between his arraignment on March 17, 1965, and the beginning of his trial on April 15, 1965. On the other hand, the record does not demonstrate there would have been any prejudice to the state or great inconvenience if the court had continued the case for a few days with the strict understanding that he must obtain counsel and be ready for trial on the next setting. Instead the trial was conducted in the manner described with the result that the court immediately found the defendant guilty *338as charged and sentenced him to serve sixty days in the workhouse.

In the circumstances shown by this record, we hold that the failure of the trial court to grant the defendant an opportunity to obtain counsel was an abuse of discretion affecting substantial rights of the defendant. The error is prejudicial and justifies a reversal of the judgment and remand of the cause for a new trial.

Id. at 59 (emphasis added).

Similarly, in the instant case, appellant had a right to have counsel appear with him and at this first setting of the case he should have been granted a continuance for the purpose of getting an attorney. One of the points alleged in the postconviction proceeding and presented on appeal is whether Dearing’s right to representation was denied by the trial court’s denial of Dearing’s request for time to get an attorney.

Appellant did not merely intimate that he would desire to obtain counsel if permitted at his DWI trial. Instead, as reflected by the trial court docket, he asked specifically for a continuance so he could try to obtain counsel. Although appellant here may have been negligent, as this Court acknowledged McClintonwas, in not seeking to get an attorney for the two and one-half weeks before trial in which he was without counsel, appellant’s neglect does not, in itself, amount to a waiver of his right to counsel. No matter what the reason for appellant not seeking an attorney’s services for two weeks before trial, asking for a continuance to obtain an attorney is the antithesis of waiving the right to retain counsel.

In the instant case, the record, as it did in McClinton, reveals ways in which legal counsel could have been of help to appellant. Appellant wanted to subpoena witnesses on his behalf — a right guaranteed by Mo.Const. art. I, § 18(a). See also § 491.-310, RSMo 1969. During a short recess, appellant was allowed to telephone the witnesses, but was unable to reach them. Although appellant thought the judge subpoenaed one witness on the day of trial, the witness never appeared. When appellant notified the judge that he was unable to contact the witnesses and also what the witnesses would testify to, the judge informed appellant that he did not think the witnesses’s testimony would be of any benefit, and the trial proceeded. Appellant did not recognize or know how to utilize his right to the process of subpoena. Furthermore, if appellant believed there were irregularities in the proceedings, he could have appealed pursuant to § 543.290, RSMo 1969, but appellant is not an attorney.

There is little doubt of the prejudice to appellant. He “went into his trial and continued all the way through the verdict without legal representation of any sort.” State v. Drane, supra, 581 S.W.2d at 92. He received no opportunity from the trial court to obtain counsel. His effort to secure witnesses was inept, at best.

Moreover, the record does not demonstrate that there would have been any prejudice to the state, any inconvenience to the court, or any attempt “to defeat or impede the orderly processes of the administration of justice,” State v. Crider, 451 S.W.2d 825, 828 (Mo.1970), had the trial court “continued the case for a few days with the strict understanding that he [appellant] must obtain counsel and be ready for trial on the next setting. Instead . .. the court immediately found the defendant guilty as charged .... ” State v. McClinton, supra, 418 S.W.2d at 59.

In McClinton, the Court held “the failure of the trial court to grant the defendant an opportunity to obtain counsel was an abuse of discretion affecting substantial rights of the defendant”, id.,and reversed the conviction. Here, the same error is also prejudicial. Whether appellant could at the time he asked for a continuance have afforded counsel is immaterial. He should have been allowed to try because he had a right to be represented by counsel and no inconvenience, prejudice, or impeding of justice would have occurred. Yet, the principal opinion would deny appellant that prospect because “the likelihood of obtaining funds to employ counsel was shown neither to the trial court in 1978 nor to the hearing court in 1979.” In other words, appellant had no *339right, as expressed in McClintonand guaranteed by Mo.Const. art. I, § 18(a), to try to get an attorney to represent him because he would probably be unsuccessful since he was poor. I believe that the judgment of conviction entered in cause no. 12437, Magistrate (Associate Circuit) Court of Moni-teau County on September 1, 1978, should be vacated and remanded to the trial court and the judgment in the instant proceeding should be reversed. Therefore, I dissent.

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