662 P.2d 548 (Idaho 1983), 13550, State v. Bearshield

Docket Nº:13550.
Citation:662 P.2d 548, 104 Idaho 676
Opinion Judge:BISTLINE, Justice. BAKES,
Party Name:The STATE of Idaho, Plaintiff-Respondent, v. Christopher BEARSHIELD, aka Raymond Hoover, Defendant-Appellant.
Attorney:Eli Rapaich, of Rapaich & Knutson, Lewiston, for defendant-appellant. David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.
Judge Panel:SHEPARD, J., concurs.
Case Date:April 27, 1983
Court:Supreme Court of Idaho
 
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Page 548

662 P.2d 548 (Idaho 1983)

104 Idaho 676

The STATE of Idaho, Plaintiff-Respondent,

v.

Christopher BEARSHIELD, aka Raymond Hoover, Defendant-Appellant.

No. 13550.

Supreme Court of Idaho.

April 27, 1983

Page 549

[104 Idaho 677] Eli Rapaich, of Rapaich & Knutson, Lewiston, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

BISTLINE, Justice.

I.

Christopher Bearshield was charged with murder in the first degree by an information filed on February 21, 1973, in connection with the shooting death of Harry Walks-On-Top. Bearshield appeared with counsel and entered a plea of not guilty to the charge. Later Bearshield, through his attorney, entered a plea of guilty to the crime of murder in the second degree. The court, the Honorable John Maynard presiding, accepted the plea. Later, at sentencing, Bearshield testified that he had not intended to kill Walks-On-Top, in view of which Judge Maynard questioned Bearshield as to the voluntariness of his plea. Being satisfied that it was voluntary, the court on March 30, 1973, sentenced Bearshield to an indeterminate term not to exceed twenty-five years in the custody of the Idaho Board of Corrections. No appeal was taken.

On August 25, 1977, Bearshield filed a pro se application for post-conviction relief. Retained counsel filed an appearance as Bearshield's counsel on April 30, 1979. Thereafter counsel filed an amended petition on May 18, 1979. At this time a motion for a change of judge was also filed. The prosecution interposed no response on the motion, and it was not passed upon until the amended petition came on to be heard before Judge Maynard on June 13, 1979. The motion was rather summarily denied, as was Bearshield's petition for post-conviction relief. Bearshield appeals.

II.

A threshold challenge raised by Bearshield is whether Judge Maynard erred in not accepting the disqualification, which ruling was based upon the stated reason: "Well, the motion wasn't timely made in that the Court certainly has acted in this case from its very inception 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." Tr., p. 3. This disposition of the motion was the first contested proceeding in Bearshield's action for post-conviction relief.

A party to an action is entitled to make one disqualification without cause pursuant to I.R.C.P. 40(d)(1). Although Bearshield's motion to disqualify Maynard was brought "pursuant to the provisions of

Page 550

[104 Idaho 678] I.C.R. 25 1 and I.R.C.P. 40(d)(2)," Judge Maynard treated it as a motion calling for an automatic disqualification.

Judge Maynard's stated reason for not honoring the disqualification, that he had been in the case from its inception, can only be understood as founded upon his view that the post-conviction proceeding was a continuation of the criminal action at which he had presided. It is clear that he had not been required to nor did he pass upon any contested motions prior to the filing of the disqualification motion by Bearshield's counsel. We believe, therefore, that he erred in continuing to preside in the post-conviction relief action.

As was noted in Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969): "An application for post-conviction relief is a special proceeding, civil in nature. Idaho Const...

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