                                No. 8 6 - 1 4 5
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1986




STATE OF MONTANA,
                 Plaintiff and Respondent,
         -vs-
JERRY LATTIN,
                 Defendant and Appellant.




APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and for the County of Cascade,
                 The Honorable Thomas McKittrick, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                 John Keith, Great Falls, Montana

         For Respondent:
                 Hon. Mike Greely, Attorney General, Helena, Montana
                 Dorothy McCarter, Asst. Attorney General, Helena
                 Patrick L. Paul, Cascade County Attorney, Great Falls,
                 Montana; Antonia P. Marra, Deputy




                                     Submitted on Briefs:       May 30, 1 9 8 6
                                        Decided: July 2 9 , 1 9 8 6



Filed:    JUL291986


                                                  @   -..
                                     Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


       Defendant Mr. Lattin appeals his criminal sentencing by
Cascade County District Judge Thomas McKittrick, whom he had
moved to disqualify.         We affirm.
       The issue is whether Judge McKittrick erred in assuming
initial jurisdiction over the motion to disqualify and in
denying that motion.
       Mr.   Lattin was charged with sexual assault upon his
minor stepdaughter.          On the date originally set for trial, he
entered      a   guilty      plea.      Judge   McKittrick   ordered   a
pre-sentence investigation, revoked Mr. Lattin's bail, and
set a sentencing date for the following month.
       At his sentencing hearing, Mr. Lattin filed a motion to
disqualify Judge McKittrick. The affidavit in support of the
motion alleged bias or prejudice against Mr. Lattin, demon-
strated in a discussion prior to the sentencing hearing, in
which Judge McKittrick allegedly told Channing Hartelius, an
attorney, that Mr.        Lattin would receive a jail sentence.
Although it was not required to do so, the court allowed
evidence in support of the motion.              Mr. Hartelius testified
that    about    a   month    previously   he    had   approached   Judge
McKittrick, at Mr.           Lattin's   request, about releasing Mr.
Lattin on bail pending sentencing.              He testified that Judge
McKittrick had stated that "under the circumstances of this
situation, that there would probably be some jail time."
       The   motion    for disqualification was         denied.     Judge
McKittrick found it was not timely filed, no cause was              shown
for failure to timely file, and the supporting affidavit did
not allege a personal bias or prejudice.               Mr. Lattin argues
that Judge McKittrick erred in proceeding with the sentencing
after the filing of the motion for disqualification.
     Section 3-1-802, MCA, provides in pertinent part:

    Whenever a party to any proceeding in any court
    makes and files a timely and sufficient affidavit
    that a judge before whom the matter is pending has
    a personal bias or prejudice either against him or
    in favor of any adverse party, such judge shall
    proceed no further therein.
    In the case of a district judge, another district
    judge shall be assigned by the chief justice of the
    Supreme Court to hear such disqualification pro-
    ceedings.  . .  The affidavit shall state the facts
    and the reasons for the belief that bias or preju-
    dice exists, and shall be filed not less than
    twenty days before the original date of trial, or
    good cause shall be shown for failure to file it
    within such time.    It shall be accompanied by a
    certificate of counsel of record stating that it
    has been made in good faith.
Mr. Lattin argues that once his motion for disqualification
and supporting affidavit were filed, Judge McKittrick had no
further jurisdiction over this case.        He cites State v.
Duncan (Mont. 1981), 623 P.2d 953, 954, 38 St.Rep. 202, 204,
in which this Court held that once a motion for disqualifica-
tion of a district judge is made, the case comes "under the
singular authority and jurisdiction        this Court. "   That
case was decided under former   $   3-1-801, MCA, (1981), which
was substantially the same as the current law.      Mr. Lattin
also cites the holding from In re Marriage of Gahr (Mont.



    In all judicial proceedings, a judge may be dis-
    qualified for actual bias on the filing of an
    affidavit supporting that allegation. Upon receipt
    of such an affidavit, the presiding judge may do no
    more than to refer the matter to the Chief Justice,
    who, if the affidavit warrants an inquiry, will
    appoint another judge to hear the matter.
    However, this Court has affirmed a district court's
denial of an untimely motion for disqualification of a judge
for cause.       State v. Harvey (Mont. 1986), 713 ~ . 2 d517, 43
St.Rep.   46.      The statute, by its terms, provides that a
district court shall proceed no further wherever a timely and
sufficient affidavit of bias or prejudice is filed.           The
timeliness of the affidavit is an initial matter for the
district court to determine.
     Mr. Lattin's January 22, 1986 motion to disqualify Judge
McKittrick was filed later than the statutory 20 days before
the December 9, 1985 original date of trial.         He must show
good cause for failure to timely file.           The affidavit in
support of the motion for disqualification does not give any
reason for Mr. Lattin's failure to timely file the motion and
affidavit.       When the court allowed Mr. Lattin to present
evidence in support of the motion, Mr. Hartelius testified
that his conversation with Judge McKittrick had occurred
"probably    a month"    before   the   sentencing hearing.   The
month-long delay in filing the motion and affidavit was not
explained.      We hold that Judge McKittrick properly found that
the motion was not timely filed and good cause was not shown
for failure to timely file the motion and affidavit.
     We affirm.
