Pettry v. State

2020 Ark. App. 162

595 S.W.3d 442

Jesse W. PETTRY, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-1021

Court of Appeals of Arkansas, DIVISIONS III & IV.

Opinion Delivered March 4, 2020

Peter E. Giardino, for appellant.

Leslie Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen., for appellee.

BRANDON J. HARRISON, Judge

Jesse Pettry was convicted in circuit court of violating Ark. Code Ann. § 5-73-120(a) (Repl. 2016), which forbids a person from "carrying a weapon." Pettry had a handgun in his right front pocket when he was arrested one night in Fayetteville, Arkansas, after acting out at a bar and tearing a door off its hinges on his way out of the bar when told to leave. The statute specifically prohibits a person from "possess[ing] a handgun ... on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to attempt to unlawfully employ the handgun ... as a weapon against a person." Id. (emphasis added). Pettry was first convicted under this statute in district court. He appealed to circuit court. Sitting as the factfinder by agreement of the parties and given a set of stipulated facts, the circuit court also convicted Pettry of violating section 5-73-120(a). Pettry appeals again.

The State moved this court to dismiss Pettry's appeal before all the briefing was completed. The motion argued that Pettry had not properly followed Ark. R. Crim. P. 36 (2019), which dictates how a defendant initiates a de novo proceeding in circuit court after incurring an adverse judgment in district court. We held the motion until the case was submitted for a decision. In due course, this court (acting through a three-judge panel) granted the State's motion and dismissed Pettry's appeal on jurisdictional grounds. The merit of the circuit court's conviction was not reached given our holding that the circuit court never acquired jurisdiction, which in turn meant that this court did not have jurisdiction to review the circuit court's decision. Pettry v. State , 2019 Ark. App. 457, 588 S.W.3d 71. After the dismissal of his appeal, Pettry filed a petition for rehearing. Ark. Sup. Ct. R. 2-3 (2019).

In his petition, Pettry argued that "the plain language of Rule 36(c) vests the circuit court with jurisdiction ‘upon the filing of the certified record in the office of the circuit clerk.’ " Pettry says that he timely filed the certified record in circuit court, so the State's motion should have been denied, not granted. Having reconsidered the issue, we agree with Pettry. The petition for rehearing is therefore granted, and this substituted opinion replaces Pettry v. State , 2019 Ark. App. 457, 588 S.W.3d 71. We now deny the State's motion to dismiss. And regarding this appeal's merit, we agree with Pettry that the State did not sufficiently prove its case against him in circuit court. Therefore, the 3 August 2018 sentencing order is reversed and the case dismissed.

I. The Circuit Court Acquired Jurisdiction Over the Appeal from District Court

In its motion to dismiss, the State argued that Ark. R. Crim. P. 36(c) required Pettry to do three things before the circuit court could acquire jurisdiction over his de novo appeal from district court. The State argued that

• Pettry had to, but did not, file a written request to prepare the record with the district court clerk;

• Pettry had to, but did not, serve the written request on the prosecuting attorney for the pertinent judicial district; and

• Pettry had to, but did not, file a certificate of that service with the district court clerk.

The State grounded its motion in this court's caselaw. But having reconsidered how one initiates a de novo proceeding in circuit court pursuant to Rule 36, we believe the rule requires us to change course. To that end, today we hold that none of the events the State relied on in its motion to dismiss have jurisdictional importance; the named events are administrative in nature, not jurisdictional.

Rule 36's plain words drive this conclusion. Here are its first three sections:

(a) Right to Appeal. A person convicted of a criminal offense in a district court, including a person convicted upon a plea of guilty, may appeal the judgment of conviction to the circuit court for the judicial district in which the conviction occurred. The state shall have no right of appeal from a judgment of a district court.

(b) Time for Taking Appeal. An appeal from a district court to the circuit court shall be filed in the office of the clerk of the circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment in the district court. The 30-day period is not extended by the filing of a post-trial motion under Rule 33.3.

(c) How Taken. An appeal from a district court to circuit court shall be taken by filing with the clerk of the circuit court a certified record of the proceedings in the district court. Neither a notice of appeal nor an order granting an appeal shall berequired. The record of proceedings in the district court shall include, at a minimum, a copy of the district court docket sheet and any bond or other security filed by the defendant to guarantee the defendant's appearance before the circuit court. It shall be the duty of the clerk of the district court to prepare and certify such record when the defendant files a written request to that effect with the clerk of the district court and pays any fees of the district court authorized by law therefor. The defendant shall serve a copy of the written request on the prosecuting attorney for the judicial district and shall file a certificate of such service with the district court. The defendant shall have the responsibility of filing the certified record in the office of the circuit clerk. Except as otherwise provided in subsection (d) of this rule, the circuit court shall acquire jurisdiction of the appeal upon the filing of the certified record in the office of the circuit clerk.

Ark. R. Crim. P. 36(a)–(c) (emphasis added).

A circuit court acquires jurisdiction over a de novo appeal from district court when a certified record from the district court is timely filed in the circuit court. "An appeal from a district court to circuit court shall be taken by filing with the clerk of the circuit court a certified record of the proceedings in the district court." Ark. R. Crim. P. 36(c). The rule repeats its core jurisdictional point at subsection (c)'s end: "Except as otherwise provided in subsection (d) of this rule, the circuit court shall acquire jurisdiction of the appeal upon the filing of the certified record in the office of the circuit clerk." Id. On the timeliness of filing the district court record in circuit court, our supreme court has expressly held that Rule 36(b)'s thirty-day requirement is jurisdictional. Roberson v. State , 2010 Ark. 433, 2010 WL 4524561. We have followed that rule and will continue to do so. See Wells v. State , 2019 Ark. App. 451, 588 S.W.3d 99 (same); Barker v. State , 2017 Ark. App. 43, 510 S.W.3d 284 (same). But see Ark. R. Crim. P. 36(d) (the so-called "affidavit option," which may be used to establish jurisdiction over a de novo proceeding in circuit court in certain circumstances); Treat v. State , 2019 Ark. 326, 588 S.W.3d 10 (addressing Rule 36(d) ).

Here, no one disputes that Pettry filed a certified district court record in the circuit court within thirty days of "the date of the entry of the judgment in the district court." These facts defeat the State's motion. Our reasoning is explained more fully below.

1. Filing the written request with the district clerk. Pettry did not have to file a written request to certify the record of the district court proceedings with the district clerk to give the circuit court jurisdiction. Not only does Rule 36 state that "the circuit court shall acquire jurisdiction of the appeal upon the filing of the certified record in the office of the circuit clerk[,]" it expressly declares that "[n]either a notice of appeal nor an order granting an appeal shall be required." But this court's prior decisions have practically required the opposite by holding that a defendant who fails to file a written request to a district clerk for a certified record also fails to establish jurisdiction in the circuit court. See, e.g. , Latham v. State , 2019 Ark. App. 323, 578 S.W.3d 732. We now hold that Rule 36(c)'s written notice requirement has no jurisdictional significance. It simply identifies when a district clerk is tasked with preparing the record. Nothing more, nothing less. It seems contradictory to recognize that notices of appeal are not required, but then hold that written notices to district clerks must be filed before circuit courts acquire jurisdiction over de novo proceedings. We avoid interpreting rules in a way that creates internal contradictions.

"It shall be the duty of the clerk of the district court to prepare and certify such record when the defendant files a written request to that effect with the clerk of the district court and pays any fees of the district court authorized by law therefor." Ark. R. Crim. P. 36(c). According to subsection (c), the district clerk arguably has no obligation to certify the record and make it available to a defendant until the clerk receives the designated paper and any applicable fee from the defendant. But Pettry received the record from the district clerk; then he timely filed it with the circuit clerk. That is all that he had to do to commence his de novo proceeding in circuit court. Whether the district clerk should have made the record available to Pettry in the first place is not at issue in this case. We also need not and do not decide whether a party could satisfy Ark. R. Crim. P. 36(d) (the affidavit option) unless and until all the steps the State argues for in its motion to dismiss have been completed.

Another reason why filing a written notice with the district clerk is administrative, not...