SUPREME COURT OF ARIZONA
JOSEPH R. GODOY, ) Arizona Supreme Court
) No. CV-02-0390-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA-02-0113
THE HONORABLE HOWARD HANTMAN, )
JUDGE OF THE SUPERIOR COURT OF ) Pima County Superior
THE STATE OF ARIZONA, in and for ) Court
the County of PIMA, ) No. CR-2002-2561
)
Respondent, )
) O P I N I O N
)
and )
)
STATE OF ARIZONA, )
)
Real Party in Interest. )
)
__________________________________)
Special Action from the Superior Court of Pima County
No. CR-2002-2561
The Honorable Howard Hantman, Judge
RELIEF DENIED;REMANDED
_________________________________________________________________
Piccarreta & Davis, P.C. Tucson
by Michael L. Piccarreta
and Jefferson L. Keenan
Attorneys for Joseph R. Godoy
Janet Napolitano, Former Arizona Attorney General Phoenix
Terry Goddard, Arizona Attorney General
by William J. Ekstrom, Jr., Kingman
Mohave County Attorney
and Matthew J. Smith, Kingman
Deputy Mohave County Attorney/ Special
Assistant Attorney General
Attorneys for the State of Arizona
_________________________________________________________________
McGregor, Vice Chief Justice
¶1 This case presents the question whether each party
receives a new opportunity to file a notice of a peremptory change
of judge when the state refiles a criminal matter previously
dismissed without prejudice. We conclude that a new indictment
begins a separate matter and that the right to a peremptory change
of judge applies as if no prior action had been filed.
I.
¶2 The State charged Defendant Godoy with ten counts of
perjury in violation of Arizona Revised Statutes (A.R.S.) section
13-2702 (2001). In May 2001, a grand jury indicted Godoy on nine
of the ten counts. In June 2001, Judge Howard Hantman received the
assignment of Godoy’s case. Neither the State nor Godoy requested
a change of judge, as permitted by Rule 10.2 of the Arizona Rules
of Criminal Procedure.1
¶3 Pursuant to Rule 12.9.a,2 Godoy moved for a new finding
of probable cause. Judge Hantman granted the motion and remanded
for a new finding on December 11, 2001. When the State did not
recommence grand jury proceedings within fifteen days, Judge
1
All references to “Rule __” are to the Arizona Rules of
Criminal Procedure.
2
Subsection a states: “The grand jury proceeding may be
challenged only by motion for a new finding of probable cause
alleging that the defendant was denied a substantial procedural
right, or that an insufficient number of qualified grand jurors
concurred in the finding of the indictment.” Ariz. R. Crim. P.
12.9.a.
2
Hantman dismissed the case without prejudice under Rule 12.28.c.3
¶4 Following the dismissal, the State again charged Godoy
with eight counts of perjury, all stemming from the same conduct as
that underlying the first indictment. The grand jury issued an
indictment on four of the eight counts, and Judge Hantman again
received the case assignment. Two days later, the State filed a
notice of change of judge pursuant to Rule 10.2. Over Godoy’s
objection, Judge Hantman transferred the matter to another judge.
¶5 Godoy filed a petition for special action with the court
of appeals, which declined jurisdiction. We granted Godoy’s
petition for review to resolve this recurring issue of statewide
importance. ARCAP 23.c. We exercise jurisdiction pursuant to
Article VI, Section 5.3 of the Arizona Constitution. This court
reviews rulings involving the interpretation of a court rule de
novo. See State ex rel. Napolitano v. Brown & Williamson Tobacco
Corp., 196 Ariz. 382, 390 ¶ 37, 998 P.2d 1055, 1063 (2000).
3
Subsection c states:
If a motion under Rule 12.9a, Rules of Criminal
Procedure, challenging State Grand Jury proceedings is
granted, the Attorney General, or the Attorney General’s
designee, may proceed with the prosecution of the case
pursuant to Rule 2, Rules of Criminal Procedure, or by
resubmission to the same State Grand Jury, or submission
to another grand jury. Unless a complaint is filed or a
grand jury consideration is commenced within fifteen days
after entry of the order granting the motion under Rule
12.9a, Rules of Criminal Procedure, the case shall be
dismissed without prejudice.
Ariz. R. Crim. P. 12.28.c.
3
II.
¶6 Rule 10.2 entitles either party in a criminal case to a
change of judge as a matter of right. Ariz. R. Crim. P. 10.2.a.
A party in a non-capital case must file a notice within ten days of
either the arraignment or the date on which the party receives
actual notice of the judicial assignment. Ariz. R. Crim. P.
10.2.c.4 A court cannot disregard a timely notice of a change of
judge. State v. Shahan, 17 Ariz. App. 148, 149, 495 P.2d 1355,
1356 (1972) (“A litigant has a peremptory right of disqualification
of a judge and if filed timely the court is in error to deny the
transfer to another judge.”). If the State timely filed its notice
of change of judge, Judge Hantman acted appropriately in
transferring the matter to another judge. However, if, as Godoy
essentially argues, the subsequent indictment simply “continued”
the earlier action against him, the State did not timely file its
notice. Thus, the question whether the State filed a timely notice
depends upon whether the subsequent indictment simply “continued”
the earlier action or instituted a new action against Godoy. Our
resolution of this issue depends upon the effect of the trial
court’s order dismissing the action without prejudice.
¶7 We have considered the effect of the issuance of a new
indictment in other contexts. Arizona courts consistently hold
4
The rule also measures the deadline from the “[f]iling of
the mandate from an Appellate Court with the clerk of the Superior
Court.” Ariz. R. Crim. P. 10.2.c(2).
4
that time limits for purposes of the right to a speedy trial begin
to run anew when a grand jury reindicts a defendant following the
dismissal of an earlier action against the defendant. E.g., State
v. Rose, 121 Ariz. 131, 137, 589 P.2d 5, 11 (1978); State v.
Johnson, 113 Ariz. 506, 510, 557 P.2d 1063, 1067 (1976); State v.
Avriett, 25 Ariz. App. 63, 64, 540 P.2d 1282, 1283 (1975). We see
no reason to treat time limits for filing a notice of change of
judge differently.
¶8 Moreover, Godoy’s argument would require us to regard as
“continuing” a case that the trial court has dismissed. Once Judge
Hantman dismissed the initial proceeding against Godoy, however,
nothing remained of that action and the indictment was void of
effect. See Bowman v. State, 103 Ariz. 482, 483, 445 P.2d 841, 842
(1968) (“[W]hen a motion to quash an information is granted there
is no case pending in the Superior Court until a new information is
filed.”); see also State v. Freeman, 78 Ariz. 281, 285, 279 P.2d
440, 442-43 (1955); State v. Coursey, 71 Ariz. 227, 233, 225 P.2d
713, 717 (1950); Pray v. State, 56 Ariz. 171, 175, 106 P.2d 500,
502 (1940). Arizona’s Rules of Criminal Procedure provide no
mechanism to reinstate a void indictment. The State could again
initiate criminal proceedings against Godoy following the dismissal
only by either obtaining a new indictment or filing a complaint.
Ariz. R. Crim. P. 2.2. When the new case began, Rule 10.2 provided
each party a peremptory right to change the judge within the time
5
permitted by the rule. See New Mexico v. Ware, 850 P.2d 1042,
1045 (N.M. Ct. App. 1993) (obtaining a new indictment begins the
case anew, “with all procedural rights inuring to the parties”).
¶9 In addition to arguing that the State filed an untimely
notice, Godoy also argues that the State waived its right to
peremptorily challenge Judge Hantman under Rule 10.4.a5 because the
State participated in a contested matter before him, that being
the motion to remand the May 2001 indictment for a new finding of
probable cause. Godoy cites State v. Poland, 144 Ariz. 388, 698
P.2d 183 (1985), to support his waiver argument. In Poland, after
remand for a new trial, the defendant argued that the trial court
should grant the State’s motion to dismiss but that the court
should dismiss it with prejudice. Id. at 395, 698 P.2d at 190. We
held that, by doing so, Poland waived his right to peremptorily
change the judge. Id. Poland’s and Godoy’s cases, however, differ
critically. In Poland, the judge did not dismiss the action. Id.
at 394, 698 P.2d at 189. In Godoy’s case, however, Judge Hantman
did dismiss the State’s case predicated on the May 2001 indictment,
thereby terminating that action. Participating in proceedings in
a previous case does not waive a party’s right to a change of judge
5
Rule 10.4.a provides: “A party loses the right under Rule
10.2 to a change of judge when the party participates before that
judge in any contested matter in the case, an omnibus hearing, any
pretrial hearing, a proceeding under Rule 17, or the commencement
of trial.” Ariz. R. Crim. P. 10.4.a.
6
in a new action.
III.
¶10 For the foregoing reasons, we deny relief and affirm
Judge Hantman’s order transferring this matter to a different judge
and remand for proceedings consistent with this opinion.
____________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
____________________________________
Charles E. Jones, Chief Justice
_______________________________
Rebecca White Berch, Justice
____________________________________
Michael D. Ryan, Justice
7
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