Ariz.R.Crim.P. 10.2.c. 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.
State v. Shields, 26 Ariz. App. 121, 546 P.2d 846 (1976). See State v. Smith, 111 Ariz. 149, 526 P.2d 392 (1974) and State v. Shahan, 17 Ariz. App. 148, 495 P.2d 1355 (1972) both construing the predecessor rule. The County Attorney contends, however, that since
In the instant case, the desire of the defendant to go back and have another judge resentence after the sentence has been imposed comes too late. State v. Carpenter, 1 Ariz. App. 522, 405 P.2d 460 (1965); State v. Shahan, 17 Ariz. App. 148, 495 P.2d 1355 (1972). It is the contention of the attorney for the defendant, however, that the trial court abused its discretion in failing to disqualify himself by reason of his interest and prejudice.
¶ 20 In State v. Greenlee County Justice Court, Precinct 2, 157 Ariz. 270, 756 P.2d 939 (App. 1988), we relied on City Court of Tucson and held that the superior court did not have authority to require prosecutors to make avowals of good faith when they filed a peremptory challenge to a justice of the peace. There, we concluded that, once a proper notice had been filed pursuant to Rule 10.2, the justice of the peace had been required to transfer the case to a new judge and had exceeded his legal authority by failing to do so. Greenlee County Justice Court, 157 Ariz. at 273, 756 P.2d at 942; see also State v. Neil, 102 Ariz. 110, 112-13, 425 P.2d 842, 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 judge). ¶ 21 Nor can the later 2001 amendments to Rule 10.2 be interpreted as a renewed invitation for trial courts to engraft their own preconditions on the operation of the rule.
This argument makes sense, but it could be made in almost every case where the trial court has failed 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).
In the instant case, the desire of the defendant to go back and have another judge resentence after the sentence has been imposed comes too late." State v. Munoz, 110 Ariz. 419, 520 P.2d 291 (1974), citing State v. Shahan, 17 Ariz. App. 148, 495 P.2d 1355 (1972), and State v. Carpenter, 1 Ariz. App. 522, 405 P.2d 460 (1965). Even disregarding the fact that appellant failed to object before sentence was imposed, we note that the record shows that the trial judge had no ill will toward appellant.
In the case of State v. Starsky, 106 Ariz. 329, 475 P.2d 943 (1970), our Arizona Supreme Court ruled upon the question presented in this appeal. The Court held that A.R.S. § 13-371 was not an unconstitutional infringement upon those rights guaranteed by the First Amendment. The Court of Appeals cannot overrule 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 States Supreme Court decisions.