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Treat v. State

Court of Appeals of Arkansas, Divisions I, III, IV

April 10, 2019

ROY TREAT APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE WHITE COUNTY CIRCUIT COURT [NO. 73CR-17-861] HONORABLE ROBERT EDWARDS, JUDGE

          Dodds, Kidd, Ryan & Rowan, by: Catherine A. Ryan and David W. Parker, for appellant.

          Leslie Rutledge, Att'y Gen., by: David L. Eanes, Jr., Ass't Att'y Gen., for appellee.

          MIKE MURPHY, JUDGE

         Appellant Roy Treat was convicted on November 17, 2017, of misdemeanor driving while intoxicated and a speeding violation in the White County District Court, Rose Bud Division. On December 4, Treat sent a notice of appeal to the White County Circuit Court directing the Rose Bud court clerk's office to certify and transmit the record and transmit the same to the White County Circuit Court within thirty days of the judgment being entered. Following a pretrial hearing, the circuit court found that it lacked jurisdiction and dismissed Treat's claim as untimely. On appeal, he argues that his notice of appeal was timely filed pursuant to Arkansas Rule of Criminal Procedure 36(d). We agree with the circuit court's decision; therefore, we dismiss the appeal.

         Following his conviction in district court, Treat faxed a letter dated December 4 to the Rose Bud district court clerk stating:

Please find enclosed Notice of Appeal to Circuit Court in the above referenced matter. Please have file marked and return to me in the enclosed postage paid envelope. We request a certified copy of the docket sheet, bond, as well as any other documents that are contained in the file.
Your attention to this matter is greatly appreciated. Should you have any questions, please do not hesitate to contact me.

         At the time, there was no official district court clerk; Robin Hill did not began working as clerk until December 6. Treat was told that the Rose Bud city attorney was handling the paperwork. Rose Bud's chief of police explained that he received the fax at the district court clerk's office on December 4 but that he wanted to wait to act until a hard copy was received. The district court clerk's office did not receive a hard copy of the faxed documents with a self-addressed envelope until December 21.[1] The docket sheet was certified later that day and mailed back to Treat's counsel. Also on December 21, Treat's counsel filed an affidavit in circuit court pursuant to Rule 36(d) of the Arkansas Rules of Criminal Procedure stating that the district court clerk had not sent the certified copy of the record within the required thirty days. The certified docket sheet was not filed until December 27, nine days past the December 18 deadline.

         A pretrial hearing was conducted in the White County Circuit Court on April 25, 2018, to address the State's motion to dismiss the appeal. The State argued that Treat had failed to pay the five-dollar fee that is required when a district court clerk is asked to certify a record for an appeal to the circuit court; and the failure to pay the fee deprived the circuit court of jurisdiction over Treat's appeals from district court. In response, Treat argued that all required documents were filed within forty days as required by Arkansas Rule of Criminal Procedure Rule 36(d). In reply, the State asserted that under Rule 36(c), it is the duty and responsibility of the appealing party to pay the fees for the preparation of the certified lower court record, and if the appealing party had not paid for such certified work, any delay of time by the lower court in certifying the record should be assessed against the appealing party. The circuit court agreed and found:

[I]f you had done everything you were supposed to do, the ten-day Affidavit would have covered you, but the failure to pay the $5.00 fee removes that burden on the Clerk to prepare and certify the record. If you had paid the $5.00, but not provided an envelope, I would have overruled [the State's] complaint and we would proceed to trial. The fact that the $5.00 fee was not paid deprives me of jurisdiction to proceed because the document was not filed with the Clerk within thirty days.

         Two days later, on April 27, Treat mailed the five-dollar check to the district court clerk's office, who refused to negotiate it. On May 3, 2018, Treat filed an objection to the proposed order, a motion to reconsider, and a brief in support. He noted that there was no official clerk to certify the record when he initiated the certification process, and he suggested this failure to collect the five-dollar fee was a clerk's-office issue that should not be held against him. Additionally, he attached as exhibits information received in response to FOIA requests regarding the collection of certification fees by the district courts in White County. He pointed out that some district court clerks' offices in White County never collected or invoiced fees when asked to prepare a record for an appeal to circuit court. Specifically, the Rose Bud district clerk did not report the number of appeals in which a fee was collected for certifying a record for an appeal to circuit court and the only information that office released was one receipt for a fifteen-dollar fee that was collected in October 2017.

         The circuit court denied the motion and entered its order dismissing the appeal on May 21, 2018. The circuit court found that there was no duty on the part of the clerk to prepare and certify the record within thirty days of the district court judgment as required for the circuit court to obtain jurisdiction because Treat failed to pay the five-dollar certification fee. The court also found that the subsequent submission of the Rule 36(d) affidavit by Treat was ineffective to extend the deadline under Rule 36 due to the initial failure to pay the certification fee. Treat now timely appeals to this court.

         The issue in this case requires us to construe Arkansas Rule of Criminal Procedure 36 and Arkansas Code Annotated section 16-17-124 (Supp. 2017). In order to resolve this issue, we must employ the rules of statutory construction. The basic rule of statutory construction is to give effect to the intent of the legislature. Pritchett v. City of Hot Springs, 2017 Ark. 95, at 5, 514 S.W.3d 447, 451. When the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The word "shall" indicates mandatory compliance unless such an interpretation would lead to an absurdity. Jones v. State, 2018 Ark.App. 211, at 3. We review issues involving statutory interpretation de novo on appeal. Id.

         Arkansas Rule of Criminal Procedure 36 governs the procedure for appealing district court convictions to circuit court. Rule 36(b) states 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. The rule further states:

(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.
(d) Failure of Clerk to File Record. If the clerk of the district court does not prepare and certify a record for filing in the circuit court in a timely manner, the defendant may take an appeal by filing an affidavit in the office of the circuit clerk, within forty (40) days from the date of the entry of the judgment in the district court, showing (i) that the defendant has requested the clerk of the district court to prepare and certify the record for purposes of appeal and (ii) that the clerk has not done so within thirty (30) days from the date of the entry of the judgment in the district court. The defendant shall promptly serve a copy of such affidavit upon the clerk of the district court and upon the prosecuting attorney. The circuit court shall acquire jurisdiction of the appeal upon the filing of the affidavit. On motion of the defendant or the prosecuting attorney, the circuit court may order the clerk of the district court to prepare, certify, and file a record in the circuit court.
(i) District Court Without Clerk. If a district court has no clerk, any reference in this rule to the clerk of a district court shall be deemed to refer to ...

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