FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-15-2482]
HONORABLE MARK LINDSAY, JUDGE.
Showalter & Associates, P.A., by: H. Brock Showalter, for
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
Joshua Barker was convicted of driving while intoxicated in
the Prairie Grove District Court on November 17, 2015. A
notice of appeal from this disposition was filed with the
Washington County Circuit Court on November 25, 2015. No
certified copy of the district court record was ever filed
with the circuit clerk. On appeal, Mr. Barker contends that
the circuit court erred in dismissing his appeal for lack of
jurisdiction. We find no error, and affirm.
trial was held on February 18, 2016, in the Washington County
Circuit Court where the circuit court questioned its
jurisdiction to hear the case because the file did not
contain the record from the district court. Mr. Barker's
counsel informed the court that the record was filed with the
notice of appeal, and the court recessed to allow counsel to
confer with the circuit clerk's office in an attempt to
locate it. Counsel was unable to do so, and the circuit court
dismissed Mr. Barker's case, citing its lack of
jurisdiction under Arkansas Rule of Criminal Procedure 36(c)
because the record was not timely filed.
appeal, Mr. Barker argues that his appeal to the circuit
court should not have been dismissed because (1) he was under
the impression that his appeal was perfected and (2) the
Arkansas Rules of Criminal Procedure and corresponding
caselaw do not provide for what Mr. Barker should have done
to meet his burden to perfect his appeal.
appeals from district courts to circuit courts are governed
by Rule 36 of the Arkansas Rules of Criminal Procedure. It
provides that the time allowed for filing an appeal from
district court to circuit court is thirty days from the date
the judgment was entered in the district court. Ark. R. Crim.
P. 36(b). The rule further provides, in pertinent part, as
(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
Barker's counsel, it is the common practice of the
Prairie Grove District Court clerk to send all of the proper
documents to the Washington County Circuit Court Clerk's
Office when a notice of appeal has been filed, and he assumed
the clerk would do the same in his case. Citing Hoelzeman
v. State, he argues that there is an implied promise
that the district court clerk would send the appropriate
paperwork. 241 Ark. 213, 406 S.W.2d 883 (1966).
Hoelzeman, however, is inapplicable.
Hoelzeman, our supreme court reversed a circuit
court's dismissal of an appeal from a
justice-of-the-peace court because the necessary transcript
had not been filed with the circuit court within thirty days.
Id. At the time Hoelzeman was decided, it
was the responsibility of "the clerk of the court or the
justice of the peace of the court from which the appeal [was]
taken" to timely file the appropriate documents with the
circuit clerk's office. Id. at 217, 406 S.W.2d
at 885 (quoting Ark. Stat. Ann. § 26-1307 (Repl. 1962)).
Rule 36 expressly states that a defendant has the burden to
ensure that his or her appeal from the district court is
timely made, and the responsibility to ensure that an appeal
is timely perfected from the district court to the circuit
court cannot be shifted from the defendant to the clerk's
office. See also Fletcher v. State, 2016 Ark.App.
215, at 5, 489 S.W.3d 726, 729.
Barker further asserts that there is no guidance within our
Arkansas Rules of Criminal Procedure or current caselaw for
what he could have done to perfect his appeal. ...