JESSE W. PETTRY APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-18-1113]
HONORABLE MARK LINDSAY, JUDGE MOTION TO DISMISS GRANTED;
CIRCUIT COURT JUDGMENT VACATED; DISTRICT COURT JUDGMENT
E. Giardino, for appellant.
Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't
Att'y Gen., for appellee.
MEREDITHB. SWITZER, JUDGE
Pettry was tried by the Washington County Circuit Court and
found guilty of the offense of carrying a weapon in violation
of Arkansas Code Annotated section 5-73-120 (Repl. 2016). He
filed his notice of appeal with this court and challenges the
sufficiency of the evidence supporting that conviction. After
briefing was completed, however, the State filed a motion to
dismiss the appeal for lack of jurisdiction. The State
contends our court cannot reach the merits of Pettry's
argument because he failed to perfect his appeal from
district court to circuit court. Without a perfected appeal,
the circuit court was without jurisdiction to try the case,
leaving this court with no jurisdiction to hear the appeal.
We agree and grant the State's motion to dismiss for lack
of jurisdiction, vacate the circuit court's judgment, and
reinstate the district court's judgment of conviction.
36(c) of the Arkansas Rules of Criminal Procedure provides:
(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.
(Emphasis added.) It is the appellant's burden to ensure
that his or her appeal from the district court to the circuit
court is perfected. Latham v. State, 2019 Ark.App.
323, 578 S.W.3d 732.
the emphasized portions of Rule 36(c), Pettry needed to 1)
file with the district-court clerk a written request for the
clerk to prepare and certify the record of the district-court
proceedings; 2) pay any authorized fees; 3) serve a copy of
the written request on the prosecuting attorney; and 4) file
a certificate of such service with the district court. The
record does not demonstrate that Pettry strictly complied
with these requirements. The record contains a notice of
appeal (which is not required by Rule 36) styled in the
district court. The notice of appeal reports that a
request to prepare the record had been made and paid for, and
it contains a certificate of service to the prosecutor and to
the district court. However, the record request itself is not
part of the record, so we cannot determine whether it was
filed in district court, as required by Rule 36(c). Even the
notice of appeal reporting that the request was made
and paid for is file-marked only in circuit court; there is
no file-mark for district court. In addition, the certified
copy of the district-court docket contains no notation that
an appeal request or certificate of service was
"filed" in district court.
these failures may seem excusable in nature, our case law
supports the conclusion that they are nevertheless fatal.
"Failure to strictly comply with Rule 36 deprives both
the circuit court and the appellate court of
jurisdiction." Dover v. State, 2019 Ark.App.
260, at 3 (citing Treat v. State, 2019 Ark.App. 212,
574 S.W.3d 221; Jones v. State, 2018 Ark.App. 211).
Our court has acknowledged that "this strict-compliance
approach can lead to harsh results," reasoning that
"it is nonetheless the duty of counsel to perfect an
appeal and to be aware of the rules of procedure."
Treat, 2019 Ark.App. 212, at 7-8, 574 S.W.3d at 225.
as our court explained in Latham, 2019 Ark.App. 323,
578 S.W.3d 732, we are obligated to raise jurisdictional
issues, such as the perfection of an appeal, sua sponte.
Thus, the fact that the State raised the issue after the case
had been fully briefed is of no consequence because we are
obligated to raise it on our own motion. If the circuit court
lacked jurisdiction, our court is without jurisdiction to
hear an appeal on the merits. Id. Even under Rule 9,
the predecessor to Rule 36, our supreme court held that the
district court's rules are mandatory and jurisdictional
and that the failure to comply with those rules mandates
dismissal of an appeal. Id. at 6-7 (Murphy, J.,
concurring). Our court has held that the same principle
applies to Rule 36. Id.
therefore grant the State's motion to dismiss for lack of
jurisdiction, vacate the circuit court's judgment, and
reinstate the district court's judgment of conviction.
dismissed for ...