Whenever a party has the right or is required to take some action within a prescribed period after service of a notice or other paper and such service is allowed and made by mail, 5 days shall be added to the prescribed period. We based our ruling on our previous holdings in State v. Savage, 117 Ariz. 535, 573 P.2d 1388 (1978), and Duran v. State, 113 Ariz. 135, 547 P.2d 1049 (1976). In Savage, we applied Rule 1.3 to extend the time for filing a petition for review in post-conviction proceedings by five days because the copy of the trial court's order denying post-conviction relief was mailed.
State v. Rabun, 162 Ariz. 260, 782 P.2d 736 (1989). We granted review because the opinion is inconsistent in principle with our previous holdings in State v. Savage, 117 Ariz. 535, 573 P.2d 1388 (1978) and Duran v. State, 113 Ariz. 135, 547 P.2d 1049 (1976). See Rule 31.19(f).
What, then, should be the effect of SDCL 23A-41-5 in such circumstances? In Duran v. State, 113 Ariz. 135, 547 P.2d 1049 (1976), it was held that a statute virtually identical to SDCL 23A-41-5 added the prescribed additional time to the ten-day period within which a party is required by Arizona law to file an affidavit for change of judge after a case is first assigned to that judge. Although our rules speak in terms of requiring action within a certain time prior to a fixed event rather than within a certain time after the occurrence of an event, SDCL 15-12-27 requires compliance with that time limitation only if there is sufficient time available for such compliance.
We further hold that Rule 1.3 applies to Rule 10.2 and therefore 5 days shall be added to the prescribed period when notice is given by mail." Duran v. State, 113 Ariz. 135, 136, 547 P.2d 1049, 1050 (1976). We believe that the rationale in Duran, supra, applies to the instant case and hold that Rule 1.3 does apply to a Rule 32.9(c) motion.
Criminal Rule 32.9(c) provides that a petition for review of the trial court's actions must be filed "within 10 days after the denial of the motion for rehearing." For its holding, the Savage court relied on Duran v. State, 113 Ariz. 135, 547 P.2d 1049 (1976), in which the court held that Rule 1.3 applied to Criminal Rule 10.2, which requires a motion for change of judge to be made "within 10 days after a case is first assigned to a judge." We are not constrained by court interpretation of criminal rules to arrive at a conclusion that would ignore the plain language of the civil rules at issue before us.
Other states have construed provisions similar to ours to allow additional time for mailing in cases of challenges to judges. See State v. Schaffer, 112 Idaho 1024, 739 P.2d 323, 326 (1987); State v. Seidschlaw, 304 N.W.2d 102, 104-05 (S.D. 1981); Duran v. State, 113 Ariz. 135, 547 P.2d 1049, 1050 (1976) (en banc). Rule XXIII differs from Rule 1-088.1 in that the former speaks in terms of the clerk's issuance of the notice of judge assignment.
The five day mail rule applies specifically to notices sent informing the parties of the permanent assignment of a judge. Duran v. State, 113 Ariz. 135, 547 P.2d 1049 (1976); Piller v. State, Superior Court of Cochise, 126 Ariz. 10, 612 P.2d 61 (App. 1980). Assuming the minute entry was sent on the day it was filed, appellant had fifteen days from that date within which to file his notice of change of judge.
"Within 10 days after a case is first assigned to a judge, or within 10 days after filing of the mandate from an Appellate Court with the clerk of the Superior Court, a party may exercise his right to a change of judge by filing a pleading entitled `Notice of Change of Judge' signed by counsel, if any, stating the name of the judge to be changed." In Duran v. State, 113 Ariz. 135, 547 P.2d 1049 (1976), our Supreme Court held that the 10-day period prescribed by Rule 10.2 commences to run at the time of assignment to the judge but that Rule 1.3 applies to Rule 10.2 when notice is given by mail, and therefore five days is added to the prescribed period. The state's position, with which the respondent court agreed, was that petitioners were not entitled to the additional five days because they were personally served by a deputy sheriff on February 5, and because the summons indicated No. 10140 as the case number, notifying them that the case was assigned to the respondent judge.
The 10-day period begins to run on the date of assignment to the judge regardless of when notice is received; however, an additional five days is added to the prescribed period when notice is given by mail. Duran v. State, 113 Ariz. 135, 547 P.2d 1049 (1976). In this case, resolution of the timeliness question is controlled by the date the case was assigned to a judge and the manner in which the parties were notified of the assignment.