Treat v. State

2019 Ark. 326

588 S.W.3d 10

Roy TREAT, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-750

Supreme Court of Arkansas.

Opinion Delivered: November 14, 2019

Dodds, Kidd, Ryan & Rowan, Little Rock, by: Catherine A. Ryan, and David W. Parker, for appellant.

Leslie Rutledge, Att'y Gen., by: David L. Eanes Jr., Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Associate Justice

This appeal stems from an appeal sought by appellant, Roy Treat, from the White County District Court to the White County Circuit Court. On November 17, 2017, the White County District Court convicted Treat of driving while intoxicated (DWI) and a speeding violation. On December 4, 2017, Treat's counsel faxed a letter and a notice of appeal to the Rose Bud District Court clerk, requesting that the clerk file-mark the notice of appeal and prepare a certified copy of the docket sheet, bond, and any other documents contained in the district court file in accordance with Arkansas Rule of Criminal Procedure 36. The letter and notice of appeal were also mailed to the clerk, along with a self-addressed, postage-paid envelope.

On December 18, 2017, the Rose Bud Circuit Clerk's Office had not certified the record within thirty days of judgment. On December 21, 2017, Treat filed an affidavit pursuant to Rule 36(d) of the Arkansas Rules of Criminal Procedure stating that "a letter and Notice of Appeal was mailed to the Rose Bud District Court Clerk on December 4, 2017.... To date, the Rose Bud District Clerk has not prepared the record to be filed with the White County Circuit Court." Subsequent to this letter, the Rose Bud District Court certified a copy of the docket sheet and record.

The record demonstrates that the Rose Bud Chief of Police, Officer Steven Schaumleffel, testified that on December 4, 2017, Treat faxed his notice of appeal, but there was no district court clerk at that time. The position was vacant. Schaumleffel testified that the former clerk left on September 15, 2017, and the new clerk did not start until December 6, 2017. Further, Schaumleffel testified that when he received the fax on December 4, 2017, he had "never received a fax before and did not understand it," so he called the city attorney. Schaumleffel testified that he decided to wait and see if he received the mailed copy of the letter and the notice of appeal. Schaumleffel testified that he received the letter and affidavit on December 21, 2017 and sent the certified copy of the docket sheet to Treat's counsel that same day.

The record also demonstrates that in addition to faxing and mailing the letter and notice of appeal, Treat's counsel stated in the hearing that he called the Rose Bud District Court to ask if there was anything else that was needed in order to prepare the certified docket sheet. Treat's counsel stated that because there was no clerk at that time, he spoke with the Mayor's assistant and was advised that the city attorney was handling the paperwork. Subsequent to this conversation, on December 18, 2017, when Treat's counsel did not receive the certified docket sheet, which was the thirty-day deadline to file the docket sheet with the circuit court in order to appeal under Rule 36, Treat's counsel prepared an affidavit pursuant to Rule 36(d). Pursuant to Rule 36(d), the affidavit provided that the clerk had failed to timely prepare the certified record for filing in the circuit court. The affidavit, along with a copy of the notice of appeal, was sent to the circuit court on December 18, 2017, and it was filed on December 21, 2017. He also sent the certified docket sheet to the circuit court after receiving it from the district court. On December 27, 2017, Treat filed his notice of appeal in the White County District Court.

On March 22, 2018, the State filed a motion to dismiss the appeal, contending that the circuit court lacked jurisdiction because the appeal was not timely filed. Treat responded and objected to the State's timeliness argument. The State replied, contending that the appeal was untimely and also asserted that Treat had not paid the $5 fee that was required when requesting a district court to certify a record to circuit court.

On April 25, 2018, the circuit court conducted a hearing. At the conclusion of the hearing, the circuit court agreed with the State, finding that Treat's failure to comply with Rule 36(c) and pay a certification fee was contrary to Rule 36(c), and the clerk was therefore not required to prepare and certify the record within thirty days. In other words, because Treat did not comply with subsection (c), the court found that Treat was not able to trigger subsection (d) to perfect his appeal. Therefore, the circuit court found that the appeal must be dismissed for lack of jurisdiction.

On May 3, 2018, before the circuit court entered a written order, Treat filed an objection to proposed order, a motion to reconsider, and a brief in support. Treat attached exhibits containing information that he had received from district courts through a Freedom of Information Act request in White County regarding their collection of certification fees. The Freedom of Information Act results demonstrated that fees had been collected in less than 7 percent of cases that were appealed to the circuit court during the previous three years.

On May 21, 2018, the circuit court entered an order dismissing Treat's appeal for lack of jurisdiction. Treat filed a timely notice of appeal in the court of appeals, which agreed with the circuit court and dismissed the appeal for lack of jurisdiction. Treat v. State , 2019 Ark. App. 212, 574 S.W.3d 221. Treat filed a petition for review, which we granted. When we grant a petition for review, we treat the appeal as if it had originally been filed in this court. Whalen v. State , 2016 Ark. 343, 500 S.W.3d 710.

Treat presents one point on appeal: The circuit court erred in dismissing Treat's appeal of his conviction in district court as untimely pursuant to Ark. R. Crim. P. 36(c), when it was timely filed pursuant to Rule 36(d). We agree for the reasons that follow.

Treat contends that the circuit court erred in dismissing Treat's appeal of his conviction in district court as untimely pursuant to Ark. R. Crim. P. 36(c), when it was timely filed pursuant to Rule 36(d). The issue before us requires us to interpret Rule 36. Upon review, "when we construe the meaning of a court rule, our standard of review is de novo as it is for this court to determine what a rule means. Richard v. Union Pac. R.R. Co. , 2012 Ark. 129, 388 S.W.3d 422. We construe court rules using the same means and canons of construction used to interpret statutes. Id. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. McNabb v. State , 367 Ark. 93, 238 S.W.3d 119 (2006). When the language is plain and unambiguous, there is no need to resort to rules of statutory construction, and the analysis need go no further. Richard , 2012 Ark. 129, 388 S.W.3d 422. In this respect, we are not bound by the circuit court's decision; however, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id. " Taylor v. Biba , 2014 Ark. 22, at 2–3, 2014 WL 260978. "We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part." Id. at 2. Our standard of review is de novo, as it is for this court to determine what a statute or rule means. Id. We have held that rules governing appeals to circuit court are mandatory and jurisdictional. Johnson v. Dawson , 2010 Ark. 308, 365 S.W.3d 913. We have therefore required strict compliance with the rules in order for the circuit court to obtain jurisdiction. See , Taylor , supra.

We now turn to the applicable law. At issue is Rule 36 of the Arkansas Rules of Criminal Procedure, which provides in pertinent part:

(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 be required. 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.

(d) Failure of Clerk to File Record. If the clerk of

...