APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 2013-2074-2] HONORABLE BRAD KARREN, JUDGE
Norwood & Norwood, P.A., by: Doug Norwood and Alison Lee, for appellant.
Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.
BRANDON J. HARRISON, Judge
From an appellate-jurisdiction point of view, this case exemplifies the adage that no good deed goes unpunished. Cory Fletcher appeals the Benton County Circuit Court order that denied his request to find the Arkansas implied-consent law unconstitutional. We dismiss the appeal for lack of jurisdiction because the appeal from district court to circuit court was not timely made. That means this court, in turn, lacks jurisdiction to decide the merit of Fletcher's appeal.
In September 2012, Fletcher received a citation for DWI, broken windshield/obstruction, and refusal to submit to a chemical test (violation of the implied-consent law). On 11 December 2013, the Bentonville District Court dismissed the DWI charge, and Fletcher pled guilty to refusal to submit to a chemical test. The obstructed-1 view charge was nolle prossed. On 20 December 2013, Fletcher filed a notice of appeal in both the district court and the Benton County Circuit Court. On 24 February 2014- seventy-five days after the district court judgment had been entered-the district court record was filed with the Benton County Circuit Court.
At a hearing held in October 2014, Fletcher's counsel discussed the timeliness of the appeal from district court:
The facts are that the transcript that would get the de novo appeal going was actually transmitted directly from the district court clerk to the circuit court clerk and it disappeared somewhere and had that not disappeared it would have been filed within the 30 days and the Court would have jurisdiction, which I think the Court does have jurisdiction.
The circuit court expressed doubt that it could "find jurisdiction" and stated that it thought "[the appeal] has to be filed within 30 days and that's it." The circuit court also noted that just because it's the district court clerk's practice to file the district court transcript with the circuit court, "it isn't incumbent upon them to get the appeal filed." The circuit court's statement was correct. Fletcher's counsel, however, insisted that "we're allowed to rely upon their declaration that has been done, and there's also a presumption, you know, stuff is mailed in the U.S. mails [sic] and it's delivered. I can brief that issue if you want." The court agreed to accept briefs.
In November 2014, Fletcher's counsel and the prosecutor filed a joint "Motion to Have De Novo Appeal Filing Validated." That motion stated the following:
3. The regular practice of the Bentonville District Clerk is that she prepares the proper transcript and mails it to the Benton County Circuit Clerk for filing. This was done on December 24, 2013. The mail was sent by prepaid regular first class mail.
4. The District Court transcript was not returned to the District Court by the post office.
5. The parties believe that the proper District Court transcript was properly mailed and delivered to the Benton County Circuit Court within the 30 days for filing for a de novo appeal. The parties believe that the paperwork was lost or ...