Section 6.6 Change of Judge

• Library: Criminal Practice 2012 Supp

B. (§6.6) Change of Judge

An associate circuit judge may generally be disqualified from conducting a preliminary hearing upon the filing of a written application for a change of judge at least ten days before the initial date set for hearing or within ten days of the designation of the judge, whichever is later. Rule 32.06(a). Thus, the change of judge request must be filed at least ten days before the hearing is scheduled to occur; if the designation of a judge does not precede the date set for the hearing by at least ten days, the application for change of judge must be made before the commencement of the preliminary hearing. Id. The application:

· does not need to allege or prove any reason for the change;

· does not need to be verified; and

· may be signed by any party or any attorney for any party.

Id.

“A copy of the application and a notice of the time when it will be presented to the court shall be served on all parties.” Rule 32.06(b). “If the application is timely filed, the judge shall promptly sustain the application and notify the presiding judge who shall assign a judge within the circuit or request [the Supreme Court of Missouri] to transfer a judge.” Rule 32.06(c).

Counsel should note that the judge who conducted the preliminary hearing cannot be designated by the presiding judge (over objections by the accused) to hear the trial of the felony in that same case. Section 478.240.2(2), RSMo 2000. Some judicial circuits, however, provide by local rule that, when the preliminary hearing is waived, the associate circuit judge who heard the waiver can be assigned as the trial judge. Normally, counsel is entitled to a change of judge at the preliminary hearing stage and another change of judge at the circuit level. Rule 32.09(a). Therefore, when the associate circuit judge remains on the case after waiver, counsel would only get one change of judge. If this change is exhausted, a circuit judge could be assigned who, in counsel’s view, is not a desirable choice, and no recourse would be available. To avoid this possibility, counsel should...