FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO.
60CR-16-4557] HONORABLE LEON JOHNSON, JUDGE
William R. Simpson, Jr., Public Defender, by: Andrew
Thornton, Of Counsel, for appellant.
KENNETH S. HIXSON, JUDGE
Maurice Bey appeals after the Pulaski County Circuit Court
dismissed his appeal from district court. Appellant's
attorney has filed a no-merit brief and a motion to withdraw
as counsel pursuant to Arkansas Supreme Court Rule 4-3(k)
(2017) and Anders v. California, 386 U.S. 738
(1967), asserting that this appeal is wholly without merit.
The motion is accompanied by an abstract and addendum of the
proceedings below, alleged to include all objections and
motions decided adversely to appellant, and a brief in which
counsel explains why there is nothing in the record that
would support an appeal. The clerk of this court mailed a
copy of counsel's motion and brief to appellant's
last-known address informing him of his right to file pro se
points for reversal; however, he has not done
Consequently, the attorney general has not filed a brief in
response. We grant counsel's motion to withdraw and
affirm the dismissal.
was pulled over by a state trooper on July 14, 2016, and
cited for driving with a suspended license and for not
wearing a seat belt in violation of Arkansas Code Annotated
sections 27-16-303(a) and 27-37-702(a) (Repl. 2014).
Appellant pleaded not guilty in the North Little Rock
District Court, and a pro se bench trial was held on December
7, 2016. The district court found appellant guilty of each
offense and ordered him to pay fines, fees, and court costs
alleges that afterward, he told the district clerk he wanted
to appeal his convictions, and the district clerk prepared a
certified copy of the record, which appellant timely
delivered to the clerk of the Pulaski County Circuit Court on
December 30, 2016. Additionally, appellant filed a motion to
dismiss for lack of probable cause to arrest on June 23,
2017. However, the State moved to dismiss appellant's
appeal because he had not "serve[d] a certified copy of
the district court record" on the prosecuting attorney
or the city attorney, and he had not "file[d] a
certificate of service of same with the district court."
Appellant opposed the motion, and a hearing was held on the
motion to dismiss.
hearing, the State orally amended its motion to assert that
appellant had failed to file a written request that the
district court clerk prepare the record, serve that written
request on the prosecuting attorney or the city attorney, and
file a certificate of such service with the district court.
Appellant's counsel conceded that appellant had not filed
that written request and that this court's opinion in
Fewell v. State, 2014 Ark.App. 631, required him to
do so. Nevertheless, counsel argued that Fewell was
wrongly decided and should be overruled for two reasons. He
first argued that the written-request provision does not
apply to every defendant appealing from a district court
conviction; and second, he argued that even if it did, it is
a procedural rule and not a jurisdictional one.
circuit court granted the State's motion for dismissal
and entered orders of dismissal on December 11, 2017, and
January 23, 2018.
This is a misdemeanor appeal from two district-court
convictions. Defendant timely filed a certified copy of the
district-court record with the Clerk of the Pulaski County
Circuit Court. See Ark. R. Crim. P. 36(b)-(c). But
Defendant did not file with the district-court clerk a
request that the clerk prepare a certified copy of the
record; did not serve a copy of that request upon the
Prosecuting Attorney for the Sixth Judicial District; and did
not file with the district-court clerk a certificate of that
service. See Ark. R. Crim. P. 36(c). The State is
correct that these failures are fatal to Defendant's
appeal. See Fewell v. State, 2014 Ark.App. 631.
Defendant's arguments to the contrary are overruled.
WHEREFORE, the Court GRANTS the State's motion, DISMISSES
Defendant's appeal, and REMANDS this case to the North
Little Rock District Court, Second Division.
counsel correctly explains that this appeal is wholly without
merit in light of Jones v. State, 2018 Ark.App.
In Jones, as here, the State filed a motion to
dismiss an appeal from district to circuit court after Jones
had failed to comply with the requirements of Arkansas Rule
of Criminal Procedure 36(c), which provides the following:
(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.
added.) We further rejected the same arguments against
dismissal that appellant made here in circuit court: (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. Jones, supra; see also
Fewell, supra. Thus, from our review of the
record and the brief presented, we find that counsel has
complied with the requirements of Rule 4-3(k) and hold that
there is no merit to this appeal. ...