IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 33273
DEAN HARRELL,
Petitioner-Appellant,

v. STATE OF IDAHO,
Respondent. ) ) ) ) ) ) ) ) ) ) 2008 Unpublished Opinion No. 400
Filed: March 19, 2008
Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District C ourt of the Fifth Judicial Di strict, State of Idaho, Cassia County. Hon. Monte B. Carlson, District Judge.
Order dismissing petition for post-conviction relief, vacated , and case remanded

. Molly J. Huskey, State Appellate Pub lic Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney General, Boise, for respondent.

______________________________________________ LANSING, Judge Dean Harrell appeals from the district court’ s dismissal of his peti tion for post-conviction
relief. We vacate the dismissal order and remand. Harrell was convicted of rape. He appealed from the judgment of conviction and this
Court affirmed. State v. Harrell , Docket No. 25985 (Ct. App. July 25, 2001) (unpublished). Harrell filed a petition for post-conviction relie f, which the district court denied. Harrell appealed and this Court again affirmed. Harrell v. State , Docket No. 28371 (Ct. App. May 14, 2004) (unpublished). On November 7, 2005, Harrell filed the pres ent successive action for post-conviction relief. On that same day, Harrell filed addition al motions, including a motion to disqualify the presiding judge for cause. The district judg e never ruled on the motion to disqualify. The district judge appointed counsel for Harrell, issued a notice of intent to dismiss, conducted a number of status hearings, and ultimately dism issed the petition. Harre ll appeals, contending

1that the district judge was without authority to dismiss the petition or to take any other action in
the case because he did not first rule on the moti on to disqualify. We are constrained to agree. An action for post-conviction relief is civil in nature and is generally governed by the
Idaho Rules of Civil Procedure. Pizzuto v. State , 127 Idaho 469, 470, 903 P.2d 58, 59 (1995);
Lamm v. State , 143 Idaho 763, 765, 152 P.3d 634, 636 (Ct. App. 2006). Unlike parties in most civil proceedings, however, a post -conviction petitioner is not en titled to disqualify a judge without cause if the judge assigne d to the case also entered the judgment of conviction that is being challenged. I.R.C.P. 40(d)(1)(I)(ii). See also Idaho Criminal Rule 25(a)(9)(ii). However, a petitioner in a post-conviction proceeding may move to disqualify a judge for cause under I.R.C.P. 40(d)(2). Idaho Rule of Civil Proced ure 40(d)(5) specifically provides that “[u]pon the filing of a motion for dis qualification, the presidi ng judge shall be without authority to act further in such action except to grant or deny such motion for disqualification.” See also State v. Larios
, 129 Idaho 631, 633, 931 P.2d 625, 627 (1997) (holding that “the district cour t may not take any action, other than ruling on the motion to dis qualify, after the motion has been filed”); State v.
Beard , 135 Idaho 641, 644, 22 P.3d 116, 119 (Ct. App. 2001). The interpretation of the applicable rule presents a question of law. Larios , 129 Idaho at 633, 931 P.2d at 627. The State opposes Harrell’s argument in two ways . First, it asserts that Harrell’s motion was not properly brought because no suppor ting affidavit was filed as required by I.R.C.P. 40(d)(2)(B) and, therefore, no error oc curred. While the State cites a number of cases discussing, in the context of a motion to disqua lify for cause, affidavits and the specificity required, it cites no case holding that the failure to file a supporting affidavit means that the
motion was not filed at all. We hold that while the lack of an affidavit may be grounds for the denial of a motion to disqualify for cause, it doe s not excuse the court from ruling on the motion. The State also argues the merits of the motion to disqualify and contends that because the motion would have been denied, the district court’ s failure to make a ruling was harmless. This argument is unpersuasive because the plain language of the rule states that “the presiding judge shall be without authority to act further in such action except to grant or deny such motion for disqualification.” All orders or actions following a motion to di squalify, but prior to a ruling on the motion, are, in the words of our Supreme Court, “improper, void and of no effect.” Pizzuto , 127 Idaho at 470, 903 P.2d at 59 (quoting Lewiston Lime Co. v. Barney , 87 Idaho 462, 467, 394 P.2d 323, 326 (1964)).

23 Because the district court failed to rule on the motion to disqualify, its subsequent actions and orders, including the order dism issing the petition, are void. As a result of this disposition, it is unnecessary to address any further issues pres ented in this appeal, and we express no opinion on the merits of the petition. The district court’s order dismissing the peti tion and all other actions taken by the district court are vacated. We remand for further pr oceedings consistent with this opinion. Chief Judge GUTIERREZ and Judge PERRY CONCUR.