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Jones v. State

Court of Appeals of Arkansas, Division III

March 28, 2018

FREDERICK T. JONES APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-16-2307] HONORABLE LEON JOHNSON, JUDGE

          William R. Simpson, Jr., Public Defender, and Andrew Thornton, of Counsel, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, JUDGE.

         Frederick T. Jones appeals from the circuit court's dismissal of his appeal from district court on the ground that he did not comply with the requirements of Rule 36(c) of the Arkansas Rules of Criminal Procedure. We affirm.

         On February 6, 2016, Jones was stopped by an Arkansas State Trooper and cited for improper towing and failure to use a car seat. Jones pleaded not guilty and was tried in district court. Jones was found guilty of both offenses and ordered to pay $405 in fines and court costs.

         Jones informed the district court clerk that he wanted to appeal to the circuit court and verbally requested that the clerk prepare the record. The district court clerk prepared the record, which Jones timely filed with the Pulaski County Circuit Clerk.

         The State filed a motion to dismiss Jones's appeal on the ground that he had not complied with Arkansas Rule of Criminal Procedure 36(c), which requires that an appellant from district court must file a written request for the record with the district court clerk, serve that request on the prosecutor for the judicial district, and then file that service with the district court. Jones responded, presenting two arguments against dismissal: (1) the written-request requirement does not apply to a defendant who has timely filed the record with the circuit court, and (2) the written-request requirement in Arkansas Rule of Criminal Procedure 36(c) is procedural and should not be strictly construed.

         After a hearing on the matter, the circuit court dismissed and remanded the appeal, holding that though Jones timely filed the record with the circuit court, he failed to file a written request with the district court clerk to prepare a certified copy of the record, he failed to serve a copy of the request on the prosecuting attorney for the sixth judicial district, and he did not file a certificate of service of a written request with the district court. Jones filed a timely notice of appeal.[1]

         We construe court rules using the same principles and canons of construction used to interpret our statutes. McNabb v. State, 367 Ark. 93, 97, 238 S.W.3d 119, 122 (2006). The first rule of statutory construction 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. Roberson v. State, 2010 Ark. 433, at 2. When the language is plain and unambiguous, there is no need to resort to other rules of statutory construction. Id. The word "shall" indicates mandatory compliance unless such an interpretation would lead to an absurdity. Turley v. State, 2013 Ark.App. 427, at 4-5, 429 S.W.3d 293, 295.

         On appeal, Jones raises two main arguments. First, he argues that our court misinterpreted Arkansas Rule of Criminal Procedure 36(c) in Fewell v. State, 2014 Ark.App. 631, and our holding in that case should be overturned. Second, Jones requests that this court issue a writ of certiorari instructing the circuit court to rescind its dismissal.

         Jones's argument regarding Fewell is twofold: he argues that the three requirements in Rule 36(c) do not apply to everyone, i.e., when appellant timely files the record in the circuit court, a written request, the service requirement to the district prosecutor that a written request has been made, and the filing of that notice, are redundant; alternatively, he asserts that strict interpretation of the mandatory language in Rule 36(c) is unwarranted because filing with the district court and service of the district court prosecutor are procedural matters and are not jurisdictional. Jones's arguments are not well taken, and we affirm.

         Pursuant to Arkansas Rule of Criminal Procedure 36(a), a person convicted of a criminal offense in a district court may appeal the judgment of conviction to the circuit court for the judicial district in which the conviction occurred. Barner v. State, 2015 Ark. 247, at 4, 464 S.W.3d 450, 452. Arkansas Rule of Criminal Procedure 36(c) sets forth the manner in which an appeal from district court is perfected:

(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 ...

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