FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CR-18-26]
HONORABLE CHRISTOPHER W. MORLEDGE, JUDGE
Roberts, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
J. GLADWIN, JUDGE.
Terry Dover appeals the order entered by the St. Francis
County Circuit Court denying his motion to dismiss on the
basis of double jeopardy. Because the circuit court did not
acquire jurisdiction of the appeal from the district court,
we reverse and dismiss.
was convicted in the St. Francis County District Court on
January 31, 2018 on charges of no seat belt, careless
driving, possession of an open container in a vehicle,
failure to carry a driver's license, driving while
intoxicated (DWI), and refusal to submit to a chemical test.
He filed a certified copy of the district-court docket sheet
in circuit court on February 1 as the notice of appeal on the
charges of DWI and refusal to submit to a chemical test.
handwritten docket-sheet provides that the following actions
on February 9, 2018, Judge Ann Hudson presided over the
adjudication of Dover's appeal; the State and Dover
appeared with counsel and announced that they were ready for
trial; the State presented no proof and called no witnesses,
instead standing on its proof; and Dover moved for a directed
verdict based on the State's lack of evidence, after
which Judge Hudson rendered a not-guilty verdict.
Hudson entered an order on February 9, 2018, finding Dover
not guilty on the DWI and refusal-to-submit charges and
guilty of the remaining charges. The order contains a note
that the prosecuting attorney had approved the order by
phone. Eleven days later, on February 20, Judge
Hudson, sua sponte, in a handwritten note on the same page as
her original ruling on the district court's docket, set
aside and "held for naught" the February 9 order
and placed Dover's case on the misdemeanor-appeals docket
for trial on March 23, 2018. Judge Hudson gave no reason for
setting aside the order but relied on Arkansas Rule of Civil
Procedure 60 (2018) to state that the order "serves as
notice to the parties of the court's action and if the
defendant has any response pursuant to Rule 60, he should
file same within the time allowed under Rule 60 for response
August 2, 2018, Dover filed a motion to dismiss and brief in
support alleging that a trial on the charges of DWI and
refusal to submit would violate double jeopardy. The State
filed a response to Dover's motion to dismiss on August
14, and on August 16, a hearing was held before Judge
Christopher Morledge on the motion to dismiss.
Morledge made a factual determination that Judge Hudson
lacked sufficient evidence to render a judgment of not guilty
at the February 9 adjudication and orally denied Dover's
motion to dismiss, set the matter for trial on October 22,
and in a written order entered on September 28, found that
jeopardy had not attached. Dover filed a timely notice of
appeal on September 17 and filed an amended notice of appeal
on October 3.
Jones v. State, 2018 Ark.App. 211, we reiterated
that Arkansas Rule of Criminal Procedure 36(c) (2018) sets
forth the manner in which an appeal from a district court is
perfected. Rule 36(c) requires that the defendant make a
written request on the district court clerk to prepare a
certified record, that the defendant serve a copy of that
written request on the prosecuting attorney for the judicial
district, and that the defendant file a certificate of such
service with the district court. Failure to strictly comply
with Rule 36 deprives both the circuit court and the
appellate court of jurisdiction. See Treat v. State,
2019 Ark.App. 212, __ S.W.3d __ (requiring strict compliance
with Rule 36); Jones, 2018 Ark.App. 211, at 6.
record before us does not indicate that Dover made a written
request to the district court clerk to compile the record, to
serve that written request on the prosecuting attorney, or to
file that request with the district court clerk. Consistent
with the holdings in Jones and Treat,
because Dover failed to strictly comply with Rule 36, the
circuit court never gained ...