dissenting:
I disagree with the majority’s handling of the disqualification issue. The majority notes, quite correctly, that a party is entitled to one automatic disqualification, and then proceeds on the assumption that the motion in the present case was a motion for automatic disqualification. The majority then reverses the trial judge’s ruling on the timeliness of the motion. I feel the majority is incorrect in (1) treating this motion as a motion for automatic disqualification, and (2) treating the motion as timely filed.
The defendant filed his pro se application for post-conviction relief on August 25, 1977. The prosecutor then filed an answer to the application on September 20, 1977. The defendant filed a “traverse” (which is merely a response to the state’s answer) on October 3, 1977. No notice of hearing was filed with any of these documents, although the defendant, in his “traverse”, did request that a hearing be set.
On February 15,1979, the defendant, still pro se, filed a motion for leave to supplement his application. Also on February 15, 1979, the defendant filed a motion for appointment of counsel and a motion for production of documents.
On March 20, 1979, the trial judge ordered the case set for hearing, the order reading:
“The petitioner having filed a petition for post conviction relief which petition raises an issue of fact regarding the voluntariness of his plea upon his allegation that he was not afforded effective representation by his attorney;
“IT IS THEREFORE ORDERED that a hearing upon the factual issue be held on Wednesday, the 25th day of April, 1979.”
On April 25, 1979, the defendant appeared in court with counsel and asked for and received a continuance. The court ordered the matter continued until May 2, 1979. Substitution of counsel was made on May 1, 1979. Subsequently, on May 18, 1979, the defendant filed his “motion for change of judge,” citing I.C.R. 25 and I.R. C.P. 49(d)(2), basing the motion on an affidavit of the defendant which asserted, as the sole grounds therefor, that allegations in the petition for post-conviction relief “may necessitate the calling of said judge as a witness . ... ”
On June 13, 1979, a hearing was held on several motions filed by the defendant, including the “motion for change of judge.” The full extent of the discussion on the motion for change of judge-is as follows:
“MR. RAPAICH: Please, sir. We would respectfully request that the motion of disqualification be heard first, Your Hon- or, so that we will have that out of the way one way or the other.
“THE COURT: All right, go right ahead. “MR. RAPAICH: I think that simply requires nothing more than the ruling by the Court. The body of the motion states the grounds for it.
“THE COURT: Well, the motion wasn’t timely made in that the Court certainly has acted in this case from its very incep*680tion and I think the only way the matter could be shown now is by a showing of some actual bias, so the motion is denied.”
The majority states that the trial judge treated the motion as calling for an automatic disqualification. There is no support for that in the record. First, the defendant’s motion cited only I.C.R. 25 and I.R. C.P. 49(d)(2) (presumably 40(d)(2) since there is no Rule 49(d)(2)). The motion does not ask for an automatic disqualification, but purports to be a disqualification for cause, which would fall under Rule 40(d)(2). Rule 40(d)(1), which was not the basis of the defendant’s motion, is the rule which allows for automatic disqualification of a judge, and it reads:
“RULE 40(d)(1). FIRST DISQUALIFICATION OF JUDGE. — In any action in the district court or the magistrates division thereof, any party may disqualify one (1) judge, without cause, by filing a motion of disqualification which shall not state any grounds therefore [therefor] other than this rule of automatic disqualification. Such motion must be made not later than 5 days after service of a notice setting the action for trial, pre-trial, or hearing on the first contested motion, and must be made before any contested proceeding in such action has been submitted for decision to the judge; .... ” (Emphasis added.)
A reading of the text of that rule makes it clear that the trial judge could not have been treating the motion as one for automatic disqualification. First, the rule provides for automatic disqualification as a matter of right; thus, no actual bias need have been shown. Secondly, the rule specifically states that no grounds need be given. However, the motion for disqualification which the defendant filed was accompanied by an affidavit specifying the grounds, as provided by Rule 40(d)(2). Finally, the rule itself requires that the rule be specifically cited in the motion for disqualification. Here, only I.C.R. 25 and I.R. C.P. 49(d)(2) (presumably 40(d)(2)) were cited. The majority errs in holding that the defendant’s motion was for an automatic disqualification under Rule 40(d)(1).
Regardless of which rule the defendant filed under, 40(d)(1) or 40(d)(2), his motion was not timely filed. Both rules require that such a motion be filed not later than five days after service of a notice of hearing. This case was originally set for hearing on the merits on April 25, 1979, pursuant to order of the court dated March 20, 1979. If defendant was served with that order on March 20, a motion for disqualification should have been filed no later than March 25, 1979. Unfortunately, it is not clear from the record when defendant was served. However, he did appear with counsel on April 25, so he did at some time receive notice of that hearing.
In any event, at the April 25, 1979, hearing, the judge, in open court, with the defendant and his counsel present, granted the defendant’s counsel’s motion for continuance and ordered the hearing reset for May 2,1979. This was notice to the defendant that the matter had been set for hearing. It is thus clear that under either Rule 40(d)(1) or 40(d)(2) a motion for disqualification should have been filed no later than five days after April 25, 1979, when the court, in the presence of the defendant and his counsel, reset the hearing for May 2, 1979. Five days would have elapsed on April 30,1979. Since the defendant did not file his motion for change of judge until May 18, 1979, the motion, whether under Rule 40(d)(1) or 40(d)(2), was not timely filed, and the trial judge properly denied it.
SHEPARD, J., concurs.