Arizona

Criminal Procedure

Criminal Procedure

Rule 10.2 – Change of Judge as a Matter of Right

(a)Entitlement.

(1)Generally. Each side in a criminal case is entitled to one change of judge as a matter of right. If two or more parties on a side have adverse or hostile interests, the presiding judge or that judge’s designee may allow additional changes of judge as a matter of right.
(2)Meaning of “Side.” Each case, including one that is consolidated, is treated as having only two sides.
(3)Per Party Limit. A party exercising a change of judge as a matter of right is not entitled to another change of judge as a matter of right.
(4)Inapplicability to Certain Proceedings. A party is not entitled to a change of judge as a matter of right in a proceeding under Rule 32 or a remand for resentencing.
(b)Procedure.

(1)Generally. A party may exercise a right to change of judge by filing a “Notice of Change of Judge” signed by counsel or a self-represented defendant, and stating the name of the judge to be changed. The notice also must include an avowal that the party is making the request in good faith and not for an improper purpose. An attorney’s avowal is in the attorney’s capacity as an officer of the court.
(2)“Improper Purpose.” “Improper purpose” means:

(A) for the purpose of delay;
(B) to obtain a severance;
(C) to interfere with the judge’s reasonable case management practices;
(D) to remove a judge for reasons of race, gender or religious affiliation;
(E) for the purpose of using the rule against a particular judge in a blanket fashion by a prosecuting agency, defender group, or law firm;
(F) to obtain a more convenient geographical location; or
(G) to obtain an advantage or avoid a disadvantage in connection with a plea bargain or at sentencing, except as permitted under Rule 17.4(g).
(3)Further Action by the Judge. If a notice of change of judge is timely filed, the judge should proceed no further in the action, except to enter any necessary temporary orders before the action can be transferred to the presiding judge or the presiding judge’s designee. If the named judge is the presiding judge, that judge may continue to perform the functions of the presiding judge.
(c)Timing.

(1)Generally. Except as provided in (c)(2), or extended by local rule, a party must file a notice of change of judge no later than 10 days after any of the following:

(A) the arraignment, if the case is assigned to a judge and the parties are given actual notice of the assignment at or before the arraignment;
(B) the superior court clerk’s filing of a mandate issued by an appellate court; or
(C) in all other cases, actual notice to the requesting party of the assignment of the case to a judge.
(2)Exception. Despite (c)(1), if a new judge is assigned to a case less than 10 days before trial (inclusive of the date of assignment), a notice of change of judge must be filed, with appropriate actual notice to the other party or parties, no later than by 5:00 p.m. on the next business day following actual receipt of a notice of the assignment or by the start of trial, whichever occurs earlier.
(d)Assignment to a New Judge and Effect on Other Defendants.

(1)On Stipulation. If a notice of change of judge is timely filed, the notice may inform the court that all the parties have agreed on a judge who is available and willing to accept the assignment. Such an agreement may be honored and, if so, it bars further changes of judge as a matter of right, unless the agreed-on judge later becomes unavailable. If a judge to whom the action has been assigned by agreement later becomes unavailable because of a change of calendar assignment, death, illness, or other legal incapacity, the parties may assert any rights under this rule that existed immediately before the assignment of the action to that judge.
(2)Absent Stipulation. If a timely notice of judge has been filed and no judge has been agreed on, the presiding judge must immediately reassign the action to another judge.
(3)Effect on Other Defendants. If there are multiple defendants, a notice of change of judge filed by one or more defendants does not require a change of judge as to the other defendants, even though the notice of change of judge may result in severance for trial purposes.
(e)Waiver. A party loses the right to a change of judge under this rule if the party participates before that judge in any contested matter in the case, a proceeding under Rule 17, or the beginning of trial.
(f)Following Remand. Unless previously exercised, a party may exercise a change of judge as a matter of right following an appellate court’s remand for new trial, and no event connected with the first trial constitutes a waiver. A party may not exercise a change of judge as a matter of right following a remand for resentencing.

Ariz. R. Crim. P. 10.2

Added August 31, 2017, effective January 1, 2018.

HISTORICAL AND STATUTORY NOTES

Former Rule 10.2, relating to change of judge upon request, was abrogated effective January 1, 2018.