Barker v. State

Cite as 2017 Ark. App. 43
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-645
Opinion Delivered January 25, 2017
JOSHUA JAMES BARKER APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[NO. 72CR-15-2482]
V.
HONORABLE MARK LINDSAY, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
MIKE MURPHY, Judge
Appellant Joshua Barker was convicted of driving while intoxicated in the Prairie
Grove District Court on November 17, 2015. A notice of appeal from this disposition was
filed with the Washington County Circuit Court on November 25, 2015. No certified copy
of the district court record was ever filed with the circuit clerk. On appeal, Mr. Barker
contends that the circuit court erred in dismissing his appeal for lack of jurisdiction. We find
no error, and affirm.
A bench trial was held on February 18, 2016, in the Washington County Circuit
Court where the circuit court questioned its jurisdiction to hear the case because the file
did not contain the record from the district court. Mr. Barker’s counsel informed the court
that the record was filed with the notice of appeal, and the court recessed to allow counsel
to confer with the circuit clerk’s office in an attempt to locate it. Counsel was unable to do
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so, and the circuit court dismissed Mr. Barker’s case, citing its lack of jurisdiction under
Arkansas Rule of Criminal Procedure 36(c) because the record was not timely filed.
On appeal, Mr. Barker argues that his appeal to the circuit court should not have
been dismissed because (1) he was under the impression that his appeal was perfected and
(2) the Arkansas Rules of Criminal Procedure and corresponding caselaw do not provide
for what Mr. Barker should have done to meet his burden to perfect his appeal.
Criminal appeals from district courts to circuit courts are governed by Rule 36 of the
Arkansas Rules of Criminal Procedure. It provides 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. Ark. R. Crim. P. 36(b). The rule further provides, in pertinent part, as
follows:
(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.
Per Mr. Barker’s counsel, it is the common practice of the Prairie Grove District
Court clerk to send all of the proper documents to the Washington County Circuit Court
Clerk’s Office when a notice of appeal has been filed, and he assumed the clerk would do
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the same in his case. Citing Hoelzeman v. State, he argues that there is an implied promise
that the district court clerk would send the appropriate paperwork. 241 Ark. 213, 406
S.W.2d 883 (1966). Hoelzeman, however, is inapplicable.
In Hoelzeman, our supreme court reversed a circuit court’s dismissal of an appeal from
a justice-of-the-peace court because the necessary transcript had not been filed with the
circuit court within thirty days. Id. At the time Hoelzeman was decided, it was the
responsibility of “the clerk of the court or the justice of the peace of the court from which
the appeal [was] taken” to timely file the appropriate documents with the circuit clerk’s
office. Id. at 217, 406 S.W.2d at 885 (quoting Ark. Stat. Ann. § 26-1307 (Repl. 1962)).
Here, Rule 36 expressly states that a defendant has the burden to ensure that his or
her appeal from the district court is timely made, and the responsibility to ensure that an
appeal is timely perfected from the district court to the circuit court cannot be shifted from
the defendant to the clerk’s office. See also Fletcher v. State, 2016 Ark. App. 215, at 5, 489
S.W.3d 726, 729.
Mr. Barker further asserts that there is no guidance within our Arkansas Rules of
Criminal Procedure or current caselaw for what he could have done to perfect his appeal.
Rule 36(d), however, adequately addresses this point.
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
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attorney, the circuit court may order the clerk of the district court to prepare, certify,
and file a record in the circuit court.
Ark. R. Crim. P. 36(d).
It is evident that Mr. Barker assumed the district court clerk would send the record
to the circuit clerk and he did not follow up to see if it had actually been sent or filed. Had
he done so, he would have been able to avail himself of the relief found in Rule 36(d).
Because Mr. Barker did not timely perfect his appeal from the district court, the
circuit court properly concluded that it lacked jurisdiction to hear the case on appeal.
Affirmed.
ABRAMSON and GLOVER, JJ., agree.
Showalter & Associates, P.A., by: H. Brock Showalter, for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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