Eric Gillette v. City of Fort Smith, Arkansas , 2023 Ark. 24 ( 2023 )

Cite as 2023 Ark. 24SUPREME COURT OF ARKANSAS
No. CR-22-120
Opinion Delivered: March 2, 2023
ERIC GILLETTE
APPELLANT APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
V. SMITH DISTRICT
[NO. 66FCR-21-174]
CITY OF FORT SMITH, ARKANSAS
APPELLEE HONORABLE STEPHEN TABOR,
JUDGE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART WITH
INSTRUCTIONS.
SHAWN A. WOMACK, Associate Justice
Eric Gillette was charged with “Carrying a Weapon in a Publicly Owned Building”
in violation of Ark. Code Ann. § 5-73-122 (Supp. 2021). He pled not guilty, and a bench
trial commenced in Fort Smith District Court on July 22, 2021. The district court
ultimately took the case under advisement and ordered Gillette to pay the court costs of
$140. Additionally, the court indicated that if there were no further offenses within thirty
days, the charge would be dismissed. Specifically, the court stated:
AFTER TESTIMONY THE CASE IS TAKEN UNDER ADVISEMENT
FOR 30 DAYS. NO FINE, DEF WILL ONLY BE REQUIRED TO PAY
THE COURT COST OF $140, FIREARM TO BE RETURNED TO
THE DEFENDANT. IF THERE ARE NO FURTHER VIOLATIONS
AND COURT COST HAS BEEN PAID IN FULL, CHARGE WILL BE
DISMISSED. *** PER JUDGE GRIMES THIS CASE CAN NOT [sic] BE
APPEALED AS THERE IS NO CONVICTION.
On August 11, 2021, Gillette filed a motion for reconsideration and a motion to stay
punishment pending appeal. In the motion for reconsideration, he objected to paying the
court costs. In the motion to stay punishment pending appeal, he contended that placing
him on involuntary probation and compelling him to pay a fine without an adjudication of
guilt was in violation of his rights. The court denied both motions as it stated, “per Judge
Grimes this case can not [sic] be appealed as there is no conviction.” Gillette complied with
the court’s order to pay $140 in court costs. The district court never entered a judgment
of conviction, and at the end of the thirty days, it discharged and dismissed the case.
On August 23, 2021, Gillette timely filed a notice of appeal in the Sebastian County
Circuit Court. He attempted to appeal the “involuntary imposition” of court costs in favor
of the City of Fort Smith. On August 25, 2021, Gillette also filed a petition to void illegal
district court sentence. On September 3, 2021, the City responded to the notice of appeal
with a motion to dismiss, arguing that Gillette had not been convicted of any offense, and
the circuit court had no jurisdiction to hear the case under Ark. R. Crim. P. 36(a). On the
same day, the City responded to Gillette’s petition to void illegal sentence on identical
grounds. The circuit court granted the City’s motion to dismiss for lack of jurisdiction
according to the conviction requirement of Rule 36(a). The circuit court did not rule on
the motion to void illegal district court sentence.
Gillette argues that the district court illegally imposed court costs and probation in
violation of his state and federal constitutional procedural due process rights and his federal
and state constitutional right to a trial. We agree. Additionally, Gillette claims a violation
of the Arkansas Constitution’s prohibition against illegal exactions.
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Article 2, section 8 of the Arkansas Constitution provides that no person “shall be
deprived of life, liberty, or property, without due process of law.” This court has ruled that
an order assessing court costs against the defendant upon dismissal of the indictment is void
and violates due process of law. Thomas v. State, 243 Ark. 147, 418 S.W.2d 792 (1967). It
is evident here that Gillette’s due process rights were violated when the district court
imposed a sentence that inflicted both monetary and probationary conditions without a
conviction or finding of guilt. While the circuit court correctly determined that it lacked
jurisdiction due to the conviction requirement of Rule 36(a), it neglected to identify what
was a void de facto sentence that the district court had imposed on Gillette. Had it done so,
it could have exercised its jurisdiction under Ark. Code Ann. § 16-90-111, which reads in
pertinent part:
Any circuit court, upon receipt of petition by the aggrieved party for relief and after
the notice of the relief has been served on the prosecuting attorney, may correct an
illegal sentence at any time and may correct a sentence imposed in an illegal manner
within the time provided in this section for the reduction of sentence.
Ark. Code Ann. § 16-90-111(a) (Repl. 2016).
We have previously ruled that “[a]n illegal sentence is one that is illegal on its face.”
Jackson v. State, 2018 Ark. 209, 549 S.W.3d 346. “A sentence is illegal on its face when it
is void because it is beyond the trial court’s authority to impose.” Swift v. State, 2018 Ark.
74, 540 S.W.3d 288. One seeking relief under section 16-90-111(a) must demonstrate that
his or her sentence was illegal. Redus v. State, 2019 Ark. 44, 566 S.W.3d 469.
Relying on the ruling in Thomas, that his sentence was void at the time it was
imposed, Gillette properly challenged the legality of his de facto sentence and should have
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been heard on the merits as the court had jurisdiction to hear it in accordance with Ark.
Code Ann. § 16-90-111(a). 243 Ark. 147, 418 S.W.2d 792.
Unlike negotiated plea bargains where defendants voluntarily agree to accept some
form of punishment in exchange for a reduced charge or no conviction being entered,
Gillette emphatically objected to the imposition of a criminal sentence absent a conviction,
including the paying of court costs, at nearly every point in the proceedings. Nevertheless,
the district court imposed an illegal sentence, declared as part of the order that there was no
conviction, and then dismissed the case. These requirements, although not a sentence
resulting from a conviction, placed legal consequences on him associated with his charge.
Accordingly, we affirm in part as to the circuit court’s order of dismissal of Gillette’s
appeal from the district court absent a conviction as required by Rule 36(a). We reverse
and remand in part with instructions for the circuit court to enter an order on the motion
to void illegal district court sentence reversing and dismissing the order of the district court
and declaring it to be void as an illegal sentence imposed without a finding of guilt. Next,
we decline to address Gillette’s illegal-exaction claim as part of a criminal appeal as that
matter would require separate filing and adjudication in a circuit court with competent
jurisdiction and is not properly before us here. Finally, we note that while the dissent claims
that the majority “breaks precedent,” it fails to cite a single case on point where this court
has addressed the imposition of a criminal sentence in the absence of either a conviction, or
a voluntary acceptance of a plea agreement, as is the situation in the case at bar.
Affirmed in part; reversed and remanded in part.
KEMP, C.J., and WOOD and WYNNE, JJ., dissent.
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JOHN DAN KEMP, Chief Justice, dissenting. The majority opinion is
fundamentally flawed and ignores this court’s well-established principles of appellate law and
procedure. As set forth in my analysis below, I would dismiss Gillette’s appeal for lack of
jurisdiction. I respectfully dissent.
Gillette proceeded to a trial in the Fort Smith District Court on an amended charge
of carrying a firearm in a public building. After the trial, the district court did not enter a
judgment of conviction. Instead, the district court took the case under advisement for thirty
days, required Gillette to pay the court cost of $140, and ruled that “if there are no further
violations and [the] court cost has been paid in full, [the] charge will be dismissed.” Gillette’s
attorney filed a motion for reconsideration, which the district court denied “as the def was
not convicted.” According to the record, the thirty-day, under-advisement period began
on July 22, 2021. A phone conference was held on August 12, and the district court entered
the following: “Both the attny and def were advised this charge will be dismissed as long as
there are no further violations and the court cost of $140 is paid in full by 8/21/21. There
will not be a co[n]viction on the def’s record.” On August 23, the case was dismissed. The
district court then made the following notation on the docket: “Remarks: No further
violations & cc paid, dismiss[.]” On August 23, after having paid the court cost and having
his charge dismissed, Gillette filed his notice of appeal in the Sebastian County Circuit
Court. On August 25, Gillette also filed in the circuit court a petition to void illegal district-
court sentence. He asserted that his “probation” and the $140 in court costs were illegal and
a violation of his due-process rights. He also asserted his statutory right to appeal, pursuant
to Arkansas Code Annotated section 5-4-305 (Repl. 2013), which allows for an appeal
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following probation or suspension of sentence. On September 3, appellee City of Fort Smith
(“City”) responded to Gillette’s notice of appeal with a motion to dismiss. On October 19,
the circuit court granted the City’s motion to dismiss. Gillette appealed the circuit court’s
order to this court.
I dissent from the majority’s opinion for the following reasons. First, pursuant to
Rule 36 of the Arkansas Rules of Criminal Procedure, the circuit court lacked jurisdiction
to consider Gillette’s appeal from district court, and the circuit court properly dismissed it.
Court rules governing appeals to the circuit court are mandatory and jurisdictional. Treat v.
State, 2019 Ark. 326, at 5, 588 S.W.3d 10, 13. Strict compliance with the rules is required
in order for the circuit court to obtain jurisdiction. Id., 588 S.W.3d at 13. When a circuit
court lacks jurisdiction, we do not acquire jurisdiction on appeal. City of N. Little Rock v.
Pfeifer, 2017 Ark. 113, at 4, 515 S.W.3d 593, 596.
Rule 36 sets forth the process to appeal a district-court criminal conviction to circuit
court. Collins v. State, 2021 Ark. 80, at 2. Rule 36(a) provides,
(a) Right to Appeal. 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. The state shall have no right of appeal from a judgment of a district court.
Here, the majority opinion states that “the circuit court correctly determined that it
lacked jurisdiction due to the conviction requirement of Rule 36(a)[.]” In my view, its
analysis should have stopped there. Rule 36(a) expressly provides that “[a] person convicted
of a criminal offense in a district court . . . may appeal the judgment of conviction to the
circuit court[.]” Under a plain-language interpretation of Rule 36, there can be no appeal
if there is no conviction. Significantly, this court reviews the circuit court’s order—not the
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district court’s order—and, in the absence of any error by the circuit court, I would dismiss
for lack of jurisdiction. See Pruitt v. State, 2014 Ark. 258, at 3 (per curiam) (holding that
when the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction).
Second, Gillette could not have availed himself of an appeal pursuant to Arkansas
Code Annotated section 5-4-305(a)(1), which states as follows:
(a) If a court suspends imposition of sentence on a defendant or places him or
her on probation, the fact that a judgment of conviction is not entered does not
preclude:
(1) An appeal on the basis of any error in the adjudication of guilt or any error
in the entry of the order of suspension or probation[.]
This court has stated that section 5-4-305(a)(1) allows an appeal on two bases: (1) an
allegation of error in the adjudication of guilt and (2) an allegation of error in the entry of
the order of suspension or probation. Barner v. State, 2015 Ark. 247, at 4, 464 S.W.3d 450,
452. Here, there was no adjudication of guilt, and no order of suspension or probation was
entered. Therefore, section 5-4-305(a)(1) does not apply in this instance.
Third, Barner is particularly instructive. There, Rufus Barner appealed from the
Pulaski County Circuit Court’s dismissal of his appeal to that court from Pulaski County
District Court. In district court, he had pled nolo contendere to a charge of third-degree
domestic battery and was sentenced to one year of probation and assessed a fine and costs
pursuant to the First Offender Act, codified at Arkansas Code Annotated sections 16-93-
301 to -305 (Repl. 2016 & Supp. 2021). Barner, 2015 Ark. 247, at 1–2, 464 S.W.3d at 451.
The district court’s order of probation stated that it was entered without a finding of guilt
and that if Barner demonstrated rehabilitation and fulfilled the terms and conditions of his
probation, an order would be entered upon petition or motion that dismissed the case,
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discharged Barner without an adjudication of guilt, and expunged his record. Id. at 2, 247
S.W.3d at 451. He appealed to the circuit court, and the State filed a motion to dismiss,
arguing that he was ineligible to appeal the order of probation on the basis that there was
no conviction in the district court from which Barner could appeal. The circuit court
granted the State’s motion to dismiss the appeal, and we affirmed the circuit court’s dismissal.
Id. at 2, 5, 464 S.W.3d at 451, 453. We opined that if Barner’s probation had been successful,
his case would have been dismissed without an adjudication of guilt, and his record would
have been expunged. Id. at 5, 464 S.W.3d at 452. Further, if Barner had “violate[d] his
probation and [was] adjudicated guilty of the offense charged,” he could have appealed to
the circuit court at that time. Id., 464 S.W.3d at 453. Unlike Barner, Gillette has already
paid his court cost, notwithstanding the lack of a conviction in the district court, and his
case was properly dismissed by the circuit court.
Therefore, I would hold that the circuit court properly dismissed for lack of
jurisdiction, and accordingly, I would dismiss for lack of jurisdiction. Because this court
lacks jurisdiction, the majority has no basis for reviewing Gillette’s remaining arguments
concerning his due-process rights, his right to trial, an alleged illegal sentence, and any illegal
exaction. Those arguments should have been presented to this court via an extraordinary
writ before Gillette paid his $140 court cost.
WOOD and WYNNE, JJ., join.
RHONDA K. WOOD, Justice, dissenting. The majority breaks precedent today.
First, the majority agrees that the circuit court lacked jurisdiction to consider Gillette’s
appeal under Rule 36, but it simultaneously exceeds its own jurisdiction by pronouncing
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trial error. And second, the majority ignores our precedent that payment of the court costs
renders Gillette’s illegal-sentence claim moot. Therefore, I dissent.
The court unanimously agrees that the circuit court did not have jurisdiction to
review Gillette’s district court appeal under Rule 36. But the majority then declares that the
district court violated Gillette’s due-process rights and his right to a trial. Yet an allegation
of trial error, like a constitutional due-process violation, could only be brought under Rule
36. It cannot be brought under Arkansas Code Annotated section 16-90-111 (Repl. 2016).
Our precedent clearly states that “assertations of trial error and due-process claims do not
implicate the facial validity of the judgment,” and “assertations of constitutional error are
not cognizable under section 16-90-111.” Williams v. Kelley, 2017 Ark. 200, at 4, 521
S.W.3d 104, 107; Williams v. State, 2016 Ark. 16, at 3, 479 S.W.3d 544, 546; see also Mister
v. State, 2022 Ark. 35, at 6, 639 S.W.3d 331, 336 (after citing a litany of cases in which this
court had rejected due-process and other claims under this section, it explained, “the circuit
court did not err in denying Mister’s request to correct his sentence on the basis of these
[unlawful and unconstitutional] allegations”); Ford v. State, 2021 Ark. 112, 4, 622 S.W.3d
635, 637 (holding claim that sentence was imposed in an illegal manner “does not fall within
the purview of section 16-90-111”). And, if these constitutional violations occurred, the
remedy would be a trial de novo, not an amended sentence, which section 16-90-111 does
not afford.
If the majority is overruling our many cases that hold that trial errors, like due-process
violations, are not cognizable under section 16-90-111(a), it should do so expressly—not
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implicitly. The majority does not have jurisdiction to pronounce such trial errors under
section 16-90-111.
Even if Gillette’s claims did survive the jurisdictional barrier, his claim under section
16-90-111 is moot because he paid the $140 in court costs. Gillette filed a “motion to stay
the punishment pending appeal,” but after the district court denied that motion, he failed
to file an extraordinary writ and opted instead to pay the costs. Gillette’s payment of the
costs renders the illegal-sentence claim moot. See City of Little Rock v. Circuit Court of Pulaski
Cnty., 2017 Ark. 219, at 4–5, 521 S.W.3d 113, 116; Wigley v. Hobbs, 2013 Ark. 379 (per
curiam); Bradford v. State, 2011 Ark. 494 (per curiam); Cent. Emergency Med. Servs., Inc. v.
State, 332 Ark. 592, 594, 966 S.W.2d 257, 259 (1998). Therefore, Gillette’s Rule 36 appeal
was properly dismissed for lack of jurisdiction, and his illegal-sentence claim should also be
dismissed as moot.
For these reasons, I dissent.
King Law Group PLLC, by: W. Whitfield Hyman, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
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