State ex rel. Davis v. Lewis

ORIGINAL PROCEEDING IN PROHIBITION LIMBAUGH, Judge. Relator James Wendell Davis, the defendant in a felony drug trafficking case, seeks a writ of prohibition to prevent the trial judge, Respondent Kenneth R. Lewis, from proceeding to trial. As grounds for the writ, Relator claims that Judge Lewis has no jurisdiction to proceed because Relator filed a timely application for change of judge pursuant to Rule 32.07. The Court of Appeals, Western District, issued a preliminary writ of prohibition, and, thereafter, this Court granted transfer. We now quash the writ. I. Relator was charged in the Circuit Court of Daviess County, 43rd Judicial Circuit, with violating § 195.223, RSMo Supp.1989, a class B felony of trafficking in the second degree. After arraignment in circuit court, Relator timely filed an application for change of venue under Rule 32.03 with the Honorable Stephen K. Griffin, the judge originally assigned to the case. Judge Griffin granted Relator’s application and ordered the case transferred to Livingston County, also in the 43rd Judicial Circuit. As prescribed by local court rules, Judge Lewis presides over three of the five counties within the 43rd Circuit, including Livingston County, and, under that authority, he assigned himself to Relator’s case.1 Within 30 days of the assignment, Relator filed an application for a change of judge without cause pursuant to Rule 32.07. Judge Lewis denied the application on the basis that Relator waived his right to a change of judge by failing to combine that request with his previous application for change of venue as required by Rule 32.08(a). Thereafter, in response to Relator’s petition, the court of appeals issued a preliminary writ of prohibition preventing Judge Lewis from proceeding to trial. II. Relator contends that his application for change of judge may properly be filed subsequent to, and independent from, an application for change of venue. Rule 32.03 provides, in pertinent part: (a) A change of venue shall be ordered in any criminal proceeding pending in a county having seventy-five thousand or fewer inhabitants upon the filing of a written application therefor by the defendant. Likewise Rule 32.07 provides: (a) A change of judge shall be ordered upon the filing of a written application [819] therefor by any party. The applicant need not allege or prove any reason for such change. Relator explains that once he satisfied the procedural requirements set forth in Rule 32.07, Respondent was required to transfer the case back to Judge Griffin, the only other circuit judge in the circuit.2 Relator, however, fails to take into account Rule 32.08(a), which states that: “A defendant who desires both a change of venue and a change of judge must join both requests in a single application.” The obvious purpose of this Rule is to qualify and limit the right to a change of venue under Rule 32.03 and the right to a change of judge under Rule 32.07. Although there are no criminal cases that address Relator’s position, in State ex rel. Smith v. Journey, 533 S.W.2d 589 (Mo. banc 1976), this Court held that Rule 51.06(a),3 the civil counterpart of Rule 32.08(a), precluded a subsequent application for change of venue or change of judge, once a party earlier applied for a change of venue or change of judge. Id. at 591. We find no reason to interpret the criminal rule differently from the civil rule. Both are substantially the same. Both require that a defendant (or either party in a civil case) who desires both a change of venue and a change of judge must bring them in a single application. Nevertheless, Relator argues that Rule 32.08(a) does not control because at the time he applied for a change of venue, he did not “desire” both a change of venue and a change of judge. It was only after venue was changed and Judge Lewis was assigned that Relator contends he “desired” a change of judge. As we understand this argument, Rule 32.08(a) is triggered only when a defendant simultaneously desires both a change of venue and change of judge. In our view, however, Rule 32.08(a) applies regardless of the timing of the applicant’s “desire” for a change of venue or for a change of judge. Instead, the rule is effective upon the filing of either an application for change of venue or an application for change of judge. See Journey, 533 S.W.2d at 591-92. Consistent with its civil rule counterpart, Rule 32.08(a) forbids the filing of separate motions. From a more fundamental standpoint, Relator’s complaint is that the rule is illogical and meaningless because it requires him to file the motion to disqualify the judge before he knows who the new judge in the new venue will be. Implicit in Relator’s complaint is an unwillingness to acknowledge the risk undertaken by the filing of any motion for change of venue: that there is no guarantee of a favorable venue and no guarantee of a favorable judge. Furthermore, despite Relator’s views, the rule has useful and logical effects. First of all, it allows a defendant to disqualify a potentially unsympathetic judge from acting on a jointly-filed request for change of venue. More importantly, the rule allows a defendant to disqualify an unwanted judge who might otherwise follow the case on change of venue to a different county within the same circuit. Indeed, it is not uncommon in multi-county circuits for the original judge to be reassigned to the case after it is transferred. In any event, the rule allows the disqualification of the original judge once and for all. In these contexts, the Rule has the important purpose of expediting the process of disqualifying the judge, thereby expediting the case as a whole. In sum, Rules 32.03, 32.07 and 32.08 present a criminal defendant with three options: (1) to take a change of venue; (2) to take a change of judge; or (3) to take a change of venue and a change of judge. Once any of these options is exercised, the other two are [820] foreclosed. Thus, we hold that the application for a change of venue foreclosed Relator’s subsequent application for change of judge. The preliminary writ of prohibition issued by the court of appeals is quashed. HOLSTEIN, BENTON, JJ., and PARRISH, Special Judge, concur. ROBERTSON, J., dissents in separate opinion filed. THOMAS and PRICE, JJ., concur in opinion of ROBERTSON, J. COVINGTON, C.J., not sitting. Footnotes [1] Contrary to the dissenting opinion, the 43rd Circuit has not been impermissibly divided into two separate circuits. The local court rule that provides for Judge Lewis to preside over three of the five counties and for Judge Griffin to preside over the other two counties does not violate any rule, statute or constitutional provision. There is still a single presiding judge who administers the entire circuit. Moreover, each judge still has jurisdiction in all five counties. Although they sit primarily in the counties over which they preside, they cross over frequently to hear cases in the other counties as well. In essence, the judges have done nothing more than to divide their responsibilities, apparently in an effort to increase the efficiency of their courts. [2] Rule 32.07(e) provides that "[i]f the case is being heard by a circuit judge in a circuit having two circuit judges, the judge shall transfer the case to the other circuit judge.” [3] Rule 51.06(a) provides: If a party requests and obtains either a change of venue or a change of judge, that party shall not be granted any additional change thereafter except for cause or under Rule 51.07. A party who desires both a change of venue and a change of judge must join and present both in a single application.