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Latham v. State

Court of Appeals of Arkansas

June 5, 2019

RUSTY LEE LATHAM APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-17-602] HONORABLE BRENT HALTOM, JUDGE

          Carolyn Lee Whitefield, for appellant.

          Leslie Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, JUDGE

         Appellant Rusty Lee Latham pleaded guilty in the Miller County District Court to driving while intoxicated (DWI) and refusal to submit to a chemical test. He then appealed those judgments to the Miller County Circuit Court where a jury found him guilty of both offenses. He argues on appeal to this court that the circuit court erred in denying his directed-verdict motion and in denying his motion for judgment notwithstanding the verdict (JNOV). We do not reach the merits of Latham's arguments because the circuit court did not acquire jurisdiction due to Latham's failure to perfect his appeal from district court. Accordingly, we reverse and vacate the circuit court's judgment, and we reinstate the district court's judgments of conviction.

         I. Procedural History

         Latham was charged with DWI and refusal to submit to a chemical test, to which he pleaded guilty on November 13, 2016. The district court's docket sheets in the record indicate that bench trials were held on August 25, 2017. They also indicate that the district court found Latham guilty of each offense and entered orders to that effect.[1] On September 18, the district court judge signed a separate judgment with respect to both offenses, but it is not file marked and is not reflected on either of the district court's docket sheets. There are no entries on the docket sheets after August 25.

         On September 19, 2017, Latham filed in the circuit court a notice of appeal, an affidavit of appeal, and an appeal bond. The circuit court's docket sheet reflects that Latham filed the "appeal" and paid $150. The circuit court accepted jurisdiction.

         Latham was tried before a Miller County jury on May 4, 2018, and he was found guilty of both offenses. A sentencing order was entered May 22.[2]

         Before entry of the sentencing order, Latham moved on May 16, 2018, for a JNOV asserting that his convictions should be reversed and dismissed because the arresting officer was not legally certified to be a Miller County deputy sheriff. A hearing was held on Latham's JNOV motion on June 8, and the circuit court entered a five-page order denying Latham's motion on June 12. On June 21, 2018, Latham filed a notice of appeal to this court "from the judgment and sentence herein entered on May 22, 2018."

         II. Appeals from District Court to Circuit Court

         Arkansas Rule of Criminal Procedure 36(a) provides that a person convicted of a criminal offense in a district court, including a person convicted upon a plea of guilty, may appeal the judgment of conviction to the circuit court for the judicial district in which the conviction occurred. An appeal from the district court to the circuit court shall be filed in the office of the clerk of the circuit court having jurisdiction of the appeal within thirty days from the date of the entry of the judgment in the district court. Ark. R. Crim. P. 36(b). Rule 36(c) provides the following:

An appeal from a district court to a 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.

         III. Jurisdiction

         Although neither party on appeal raised the issue, we are obligated to raise jurisdictional issues, such as the perfection of an appeal, sua sponte. See Ellis v. Ark. State Highway Comm'n, 2010 Ark. 196, 363 S.W.3d 321 (noting that the timely filing of a notice of appeal is a jurisdictional issue that an appellate court must raise sua sponte). If the circuit court lacked jurisdiction, this court is likewise without jurisdiction to hear an appeal on the merits. See Roberson v. State, 2010 Ark. 433. In order for the circuit court to have acquired jurisdiction, a defendant must have perfected his or her appeal from district court. In interpreting District Court Rule 9, the predecessor to Arkansas Rule of Criminal Procedure 36, our supreme court has held that the district court's rules are mandatory and jurisdictional and that the failure to comply ...


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