[Defendant was charged with burglary and attempted murder. On the date of the trial, he moved , to disqualify the trial judge on the ground that the judge had previously, as a district attorney, prosecuted him, and had recused himself from presiding over a trial of defendant in December of 1981. The court denied the motion on the ground that it was not timely.]

We feel compelled to again comment on the propriety of trial judges presiding over criminal trials when they have previously prosecuted the defendants. In State v. Neeley, a case that also dealt with a judge who presided over a trial of a defendant whom he had previously prosecuted, we stated:

'[A] judge should recuse himself when his impartiality' might reasonably be questioned. Utah Code of Judicial Conduct 3(C)(1)(b) (1981). This standard set forth by the Code of Judicial Conduct should be given careful consideration by the trial judge. It may require recusal in instances where no actual bias is shown . . . .The integrity of the judicial system should be protected against any taint of suspicion . . . . We recommend the practice that a judge recuse himself where there is a colorable claim of bias or prejudice We went on to hold that, although judges should recuse themselves if there are colorable claims of bias or prejudice. absent a showing of actual bias. failure to do so does not constitute reversible error as long as the requirements of section 77-35-29 [current version at Utah R. Crim. P. 291 have been met. The instant case, however, is more troubling than Neeley. In this case, the trial judge, upon receiving the affidavit alleging prejudice, did not have a second judge rule on the legal sufficiency of the affidavit as required by rule 29(d), but summarily dismissed the motion on the ground that it was untimely. We are aware of the problems that arise when motions to disqualify are filed the day of trial and stress that we are not deciding the issue of whether the requirements of rule 29 must be complied with under such circumstances. However, because the motion to disqualify was summarily dismissed, we are without a record sufficient to enable us to determine whether the affidavit was filed 'as soon as practical' and 'in good faith' as required by rule 29(c). It is also to be observed that, assuming the trial judge was aware of his prior contact with Petersen, the problem could have been avoided had the judge followed our recommendation in Neeley and, on his own motion, recused himself due to the colorable claim of prejudice.