Godoy v. Hantman

                     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.

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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.

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                                    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




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