concurring in result opinion.
I concur in result. Generally, under C.R. 12, a motion for a change of judge must be filed within ten days after a plea of not guilty. However, if a defendant obtains knowledge of cause for a change of judge after the ten day period, the defendant may file a verified motion for a change of judge “specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence”. C.R. 12.
In this case, Hickman filed a verified motion for a change of judge after the ten day period. His motion set forth facts showing cause for a change of judge, however, Hickman failed to allege when he first learned of the grounds for a change or why these grounds could not have been discovered earlier in the exercise of due diligence. In Zelmer v. State (1978), 177 Ind.App. 636, 380 N.E.2d 618, this court stated that a defendant was not entitled to a change of judge (requested more than ten days after entry of his plea) where the verified application did not allege when the defendant first learned of grounds for a change of judge or why the grounds could not have been discovered earlier in the exercise of due diligence. This court held that the trial court did not err in denying the defendant’s petition without a hearing as the petition did not comply with the rule requirements. This same result was reached in Haskett v. State (1979), 179 Ind.App. 655, 386 N.E.2d 1012.
More recently, our supreme court in Smith v. State (1985), Ind., 477 N.E.2d 857, 864 stated that C.R. 12 “requires a specific factual and explanatory statement for belated motions (for a change of judge) to be proper.” Since the defendant’s motion in Smith did not state when the cause for the motion was first discovered, how it was discovered, nor why it could not have been discovered before, it did not comply with the rule and the denial of the motion was proper.
I concur in result as Hickman’s motion failed to comply with the rule requirements. However, if Hickman had complied with the rule, I believe the trial court would have been required to hold a hearing on the motion under Wilson v. State (1984), *69Ind.App., 472 N.E.2d 932. In Wilson, supra, this court stated that a C.R. 12 motion requires the trial court to hold a hearing prior to ruling on the motion. Our supreme court approved this holding in Stovall v. State (1985), Ind., 477 N.E.2d 252 stating:
Recently, in Wilson v. State (1984), Ind. App., 472 N.E.2d 932, the court found an Ind.R.Cr.P. 12 motion requires the trial court, to hold a hearing prior to ruling on the motion. The court stated:
‘We believe that a C.R. 12 motion, like T.R. 56 in Otte v. Tessman [(1981), Ind., 426 N.E.2d 660], is the request triggering the fixing of a hearing; the trial court may not wait for a party to lodge an additional request. A C.R. 12 hearing is mandatory and may not be rendered naught for the court’s convenience in a summary disposition. The court’s actions here were reversible error.’ Id. at 937.
This interpretation by the Court of Appeals is correct. Id. at 254.
Thus, had Hickman’s motion complied with C.R. 12, the trial court would have been required to conduct a hearing. Apparently the majority is saying that a proper, verified motion (creating an issue of bias) filed under C.R. 12 does not require a hearing, whether or not counter-affidavits are filed. However, Stovall, supra, says otherwise.
Additionally, I might comment that if counter-affidavits are filed (presumably denying the allegations of the motion) a factual issue is created which must be resolved by the court at a hearing. Thus, a hearing is necessary.1 If no counter-affidavits are filed by the State, the defendant has only established a prima facie basis for granting the application and, our supreme court has stated that in this instance the “application should not be arbitrarily denied without affording the defendant an opportunity to bolster the credibility of such with supporting testimony.” Mendez v. State (1977), 267 Ind. 309, 370 N.E.2d 323, 325 (citing Brown v. State (1969), 252 Ind. 161, 247 N.E.2d 76, 83) emphasis in original. In either instance, whether counter-affidavits are filed under C.R. 12 or not, a hearing is mandated.2 Because a proper motion for a change of venue from the judge requires the trial court to examine the merits of the claim based on evidence, Stovall, which requires a hearing, is still the law.
. Unlike summary judgment, where the court determines the existence of conflicting facts.
. Failure to file counter-affidavits under C.R. 12 does not have the same effect as failing to file counter-affidavits in summary judgment proceedings.