State v. Shahan, 1
| Decision Date | 25 April 1972 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 17 Ariz.App. 148,495 P.2d 1355 |
| Parties | STATE of Arizona, Appellee, v. Alan J. SHAHAN, Appellant. 431. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen. by Mary Z. Chandler, Asst. Atty. Gen., Phoenix, for appellee.
Kenneth Skiff, Phoenix, for appellant.
This is an appeal by defendant Alan J. Shahan from a judgment and sentence after his plea of guilty to the crime of aggravated assault. His sentence was for a term of not less than three years nor more than five years in the Arizona State Prison.
The sole issue presented in this appeal is whether the application for change of judge and affidavit of bias and prejudice filed by defendant was timely and thereby deprived the court of jurisdiction to proceed with the judgment and sentence. We state briefly the pertinent facts and posture of the case at the time of the application. On February 11, 1971, a criminal complaint was filed against defendant and another person, charging them with two counts of robbery and two counts of assault with a deadly weapon. After a preliminary hearing both defendants were held to answer, and an information was filed charging both of them with all four counts. The facts as developed at a rather lengthy preliminary hearing showed that appellant-defendant and the co-defendant entered a 'Dunkin Donuts' shop in north Phoenix. Defendant ordered coffee and his companion proceeded to rob the shop, taking approximately $500. The companion had a gun and prior to leaving shot and wounded the baker on duty at the shop. Defendant was not armed, and attempted to calm down the waitress. Both men left together. Defendant entered into a plea bargain. 1 An amended information was filed on July 9, 1971, charging defendant with aggravated assault. Defendant entered a plea of guilty and, after questioning, the trial court accepted the plea. At that time the judge set the time for judgment and sentence on the morning of July 23, 1971.
On the morning of July 23, and prior to defendant's case being called, defendant, pursuant to Rules 196 and 197, Rules of Criminal Procedure, 17 A.R.S., filed with said judge a verified application for change of judge on account of bias and prejudice, and a certificate of good faith by his attorney as required by Rule 197, supra. When the case was called, the court denied the application as untimely and proceeded with the judgment and sentence.
The precise issue, namely, whether defendant had the right to file an affidavit of bias and prejudice against the court after his plea of guilty had been accepted and before the court proceeded to consider judgment, was decided by our Supreme Court in State v. Tatkenhorst, 103 Ariz. 156, 437 P.2d 948 (1968).
In Tatkenhorst, as here, the prosecution sought to apply the rule that an application is untimely if not made at least three days before trial as provided by Rule 199, Rules of Criminal Procedure, 17 A.R.S. Rule 199 reads as follows:
'The application for change of judge shall be made at least three days before the date the action is called for trial, unless the disqualifications were not known before the three day period, in which event such fact shall be set forth in the affidavit of disqualification.'
The Supreme Court in Takenhorst held that by its language the application of the rule was limited to cases where there was to be a trial on the facts; that since a plea of guilty had been entered there was to be no trial on the facts and therefore the rule was not applicable. The Supreme Court said:
'We therefore hold that a defendant has the right to file an affidavit of bias and prejudice against a court after a plea of guilty in a case, and that it is timely when filed before judgment and before hearing on mitigation of sentence.'
In the instant case, as in Tatkenhorst, the affidavit of bias and prejudice was a peremptory challenge to the trial judge. 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. State v. Neil, 102 Ariz. 110, 425 P.2d 842 (1967).
After reading the comments of the trial judge we are inclined to agree with him that there is good reason to apply the three-day rule to a situation such as the instant case especially because the defendant and his lawyer knew...
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State v. Brahy
...or modify a decision of our Supreme Court. McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968); State v. Shahan, 17 Ariz.App. 148, 495 P.2d 1355 (1972). It is appellant's position that State v. Starsky, supra, is no longer the law of Arizona because of subsequent United State......
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Bergeron v. O'neil, 2 CA-SA 2003-0053
...844-45 (1967) (filing of notice of change of judge required trial court to transfer case to another judge); State v. Shahan, 17 Ariz. App. 148, 149, 495 P.2d 1355, 1356 (1972) (litigant has peremptory right to disqualify judge, and if notice is timely, case must be transferred to another ju......
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Bergeron ex rel. Perez v. O'NEIL, No. 2 CA-SA 2003-0053
...844-45 (1967) (filing of notice of change of judge required trial court to transfer case to another judge); State v. Shahan, 17 Ariz. App. 148, 149, 495 P.2d 1355, 1356 (1972) (litigant has peremptory right to disqualify judge, and if notice is timely, case must be transferred to another ¶ ......
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State v. Keel
...to honor a peremptory change of judge upon request. See State v. Shields, 26 Ariz.App. 121, 546 P.2d 846 (1976); State v. Shahan, 17 Ariz.App. 148, 495 P.2d 1355 (1972). And see the recent opinion of our supreme court in Cain v. City Court, 135 Ariz. 96, 659 P.2d 649 (1983). The right of a ......