I respectfully dissent, and would reverse and remand the case because the defendant’s second point relating to his timely filed request for change of venue is dispos-itive. My position can be summarized as follows: Bradshaw filed a timely joint application for change of judge and change of venue. It is undisputed that if filed individually (and timely), both of these motions are to be granted automatically. Although Bradshaw complied with the timeliness aspect, only his request for a change of judge was granted. As such, Bradshaw is entitled to a new trial because his timely motion for a change of venue was denied.
The majority opinion is well reasoned; however, it does not overcome several key hurdles:
1) The majority, sua sponte, raises and then determines that the applicable rule is 32.08 rather than 32.03. Under Rule 32.03(c), upon a timely application for a change of venue, “the court immediately shall order the case transferred.” Under Rules 32.08(c) and (d), the new judge merely “shall determine the request for change of venue.” Neither party raised Rule 32.08, and instead concentrate on prejudice resulting from the denial of the change of venue. Though Rule 32.08 seems to apply here, the majority’s first-impression analysis is questioned for failing to reconcile the timeliness aspect of Rule 32.03 with Rule 32.08. In effect, the majority allows the State to deprive Bradshaw of his right to a change of venue because he chose to file both for a change of judge and a change of venue.
2) The majority rules that the defendant waived his constitutional due process arguments and bases that holding on several cases relating to a prior version of the Speedy Trial Act. The old version of that Act contained a *34180-day time limitation for starting a trial, and, in that narrow context, the start of trial meant the swearing of the venire. Not only has that Act been gutted, but also the accompanying cases relied upon by the majority are inapposite because the Act contemplated a specific time for the State to start a trial. The Rules contemplate immediate action on the part of the trial judge in ruling on a change of venue request.
3) The majority reasons that there is less potential for prejudice in a change of venue based on statutory right than based on cause, and cites cases for the proposition that right to a change of venue can be waived. This court should not speculate about the “potential for prejudice” where the necessary rule-based requirement of immediacy on the part of the judge was ignored.
There can be no quibble that the defendant’s motion for change of venue could have been waived. There is a supportable argument that the language in Rule 32.03 puts the onus on the prosecutor or the trial judge to confront the defendant as to this live issue. I would argue that the proper time to have put the defendant’s feet to the fire on his motion not having been ruled upon would have been prior to seating of the sworn jury. If 32.08 is read alone, because this was indeed a dual request, then there was nothing in place at the time the defendant renewed the motion to apprise him, as this court now does, that, because he also asked for a change of judge, he lost the protection he had under 32.03.
The only real issue here, no matter which rule applies, is when a waiver of the right to change of venue occurred. To now pick an arbitrary time based on authority interpreting long-extinct portions of a speedy trial statute is unfair. The motion was in proper order, and, as m Rule 32.07 cases interpreting the disqualification of a trial judge, the court’s duty was to sustain the motion. State v. Cella, 976 S.W.2d 543, 550 (Mo.App.1998); State v. Boyd, 927 S.W.2d 385, 388 (Mo.App.1996); State ex rel. Mountjoy v. Bonacker, 831 S.W.2d 241, 244 (Mo.App.1992); State v. Hornbuckle, 746 S.W.2d 580, 584 (Mo.App.1988).
Defendant’s trial counsel was not the same counsel who initiated the pre-trial motion several months earlier. There seems to be no sandbagging in this case; rather, it appears everyone missed the motion for change of venue. It is a small price to say no waiver occurs until the defendant is put in jeopardy. I would reverse and remand.
SMITH, HOWARD and ELLIS, JJ„ concur with dissent.