FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-14-925]
HONORABLE BRADLEY LEWIS KARREN, JUDGE
Standridge, for appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
W. GRUBER, Chief Judge
sole issue in this appeal is whether the Benton County
Circuit Court had jurisdiction to reconsider its decision
dismissing the charges against appellant Jose Santos
Rosales-Almenar and then to set the case for a status hearing
on his fitness for trial. The court did not have jurisdiction
to reconsider its decision; consequently, we do not have
jurisdiction, and we dismiss the appeal.
relevant facts are that on July 9, 2014, appellant was
charged with one count of felony second-degree sexual assault
in violation of Ark. Code Ann. § 5-14-125(a)(3) (Repl.
2013). On December 16, 2014, appellant moved for evaluations
to determine his fitness to proceed and his competence at the
time of the alleged offense. See Ark. Code Ann.
§§ 5-2-302 & 5-2-312(1)(A) (Supp. 2011). The
court granted both motions and ordered the evaluations. In an
order entered May 4, 2015, the court found appellant unfit to
proceed, released him, and ordered him to report to the
Arkansas State Hospital for restorative services when
notified by the hospital. The court ordered the hospital to
report back within ten months regarding appellant's
fitness to proceed and, if it found him unfit, to determine
whether his mental defect rendered him incapable of
restoration to fitness. At a fitness hearing conducted on
July 13-14, 2016, the court found that appellant was not fit
to proceed due to a "moderate intellectual disability,
" that he was unlikely to be restored to fitness, and
that he was not a danger to himself or others. The court then
ordered that the case against appellant be dismissed. On July
18, 2016, the court entered an order finding that appellant
was not fit to proceed and dismissing the case.
August 15, 2016, the court entered an order setting a
"Hearing on Motion" scheduled for September 28,
2016. It did not otherwise identify the motion, and no
written pleading was filed in the case. At the hearing on
September 28, 2016, the court stated that the purpose of the
hearing was "because the State filed or actually I
don't-orally or asked the court to reconsider" the
dismissal. Defense counsel asserted that no oral motion had
been made on the record. The court reset the hearing for
December 1, 2016, to allow appellant time to get a transcript
to determine if a motion to reconsider had been made.
hearing on December 1, 2016, the court stated that it was
going to grant the State's motion to reconsider the
dismissal. Appellant objected, asserting that the transcript
confirmed that no motion to reconsider had ever been made on
the record and thus the case was closed. The State replied
that it would "just stand on their oral motion."
The court then granted the State's motion to reconsider
and set the case for a status hearing on December 13, 2021.
The court entered an order memorializing its rulings on
December 6, 2016. Appellant filed an appeal from the December
6, 2016, order.
parties agree that the court's dismissal of the case was
error. Arkansas Code Annotated section 5-2-310 provides that
if a court determines that a defendant "lacks fitness to
proceed, the proceeding against him or her shall be
suspended" until restoration of fitness. Ark. Code Ann.
§ 5-2-310(a)(1)(A) (Repl. 2013). The statute authorizes
a circuit court to dismiss criminal charges pending against a
defendant who has previously been found unfit to proceed
"if the court determines that the defendant has regained
fitness to proceed" and "the court is of the view
that so much time has elapsed since the alleged commission of
the offense in question that it would be unjust to resume the
criminal proceeding[.]" Ark. Code Ann. § 5-2-310(c)
(Repl. 2013); see also State v. Thomas, 2014 Ark.
362, 439 S.W.3d 690 (holding this statute does not give a
circuit court authority to dismiss criminal charges against
an unfit defendant).
down a companion case today, Schepp v. State, 2017
Ark.App. 677, which concerns the identical issue on appeal
and nearly identical legally significant facts. As in
Schepp, appellant here argues that the circuit court
had no jurisdiction to reconsider its order dismissing the
case against him because the State filed neither a motion nor
an appeal within thirty days of entry of the order of
dismissal. For the reasons we set forth in Schepp,
we dismiss this appeal. The court's order dismissing the
case was entered on July 18, 2016. The State had a right to
appeal the decision and did not. See State v.
Thomas, supra (holding State's appeal of
erroneous decision under Ark. Code Ann. § 5-2-310 was
appealable pursuant to Ark. R. App. P.-Crim. 3). Once the
State failed to pursue this remedy by filing an appeal within
30 days of the dismissal, the circuit court lost
jurisdiction. Therefore, the court's order entered on
December 6, 2016, reconsidering its dismissal, reinstating
the case, and setting a status hearing is a nullity. And when
a circuit court lacks jurisdiction, we do not acquire
jurisdiction on appeal. C.H. v. State, 2010 Ark.
279, at 15, 365 S.W.3d 879, 886; Jackson v. State,
2010 Ark. 157, at 4; and Thomas v. State, 345 Ark.
236, 45 S.W.3d 818 (2001).