State v. Fisher , 23 Ariz. App. 293 ( 1975 )

OPINION

PER CURIAM.

This special action proceeding challenges the respondent court’s refusal to honor petitioner’s request for a change of judge. The basis for the court’s ruling was that the request was untimely. Since we agree with petitioner’s position, we deem it appropriate to intervene by way of special action.

Rule 10.2(a), Rules of Criminal Procedure, 17 A.R.S., provides that in any criminal case in superior court any party shall be entitled to request a change of judge. A party, however, loses this right when he agrees to the assignment of the case to a particular judge or participates before him in an omnibus hearing, any subsequent pretrial hearing, a hearing under Rule 17 (pleas -of guilty and no contest), or the commencement of trial. Rule 10.4(a), Rules of Criminal Procedure.

The procedural posture of the instant case is not disputed. The only question presented is whether petitioner lost its right to a change of judge because of “the commencement of trial.” The case was set for trial at 1:30 p. m. on February 27, 1975. The court announced that that was the time set for trial whereupon defense counsel requested a continuance. After much discussion, the court set the matter for trial the following morning. The prosecutor then asked the respondent judge:

“Your Honor, it is my understanding now at this time this trial will be heard before this Court tomorrow ?”

The judge responded:

“Just as though it is continuing the trial.

I will deem the trial as having started now.”

The prosecutor then indicated he was filing a motion for a change of judge whereupon the respondent judge refused to hon- or it on the grounds of lack of timeliness.

Rule 10.4(a) refers to “commencement of trial.” For purposes of determining the timeliness of a peremptory challenge of the judge, the trial commences when the jurors are called into the jury box for examination as to their qualifications. Sam v. State, 33 Ariz. 383, 265 P. 609 (1928); People v. Scott, 63 Ill.App.2d 232, 211 N.E.2d 418 (1965); 75 Am.Jur.2d Trial § 3 (1974). Here the jury had not yet been called into the jury box for examination and therefore, notwithstanding the fact that the respondent judge deemed the trial to have started, it had not commenced so as to preclude petitioner from peremptorily challenging the judge. Under these circumstances, the respondent judge could proceed no further, except to make such necessary temporary orders in the interest of justice before the action could be transfered to another judge. Rule 10.6, Rules of Criminal Procedure.

Since petitioner’s request for a change of judge was timely, the respondent judge was precluded from conducting the trial on February 28, 1975.

The state’s petition is therefore granted, and the respondent court is directed to honor the motion for a change of judge and to transfer this action in the manner prescribed by the Rules of Criminal Procedure.