Todd v. State

Cite as 2015 Ark. App. 356
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-14-915
OPINION DELIVERED JUNE 3, 2015
MICHAEL TODD
APPELLANT APPEAL FROM THE HEMPSTEAD
COUNTY CIRCUIT COURT
[NOS. CR-2009-74 and CR-2009-75]
V.
HONORABLE DUNCAN McRAE
CULPEPPER, JUDGE
STATE OF ARKANSAS
APPELLEE APPEAL DISMISSED
ROBERT J. GLADWIN, Chief Judge
Appellant Michael Todd appeals the revocation of his suspended imposition of
sentences (SIS) by the Hempstead County Circuit Court. He does not challenge the
preponderance of the evidence supporting his revocation; rather, he argues that the circuit
court erred when it opted to run his sentences consecutively rather than concurrently.
Appellant also contends that the circuit court erroneously sentenced him without evidence
of when his suspension began, basically not knowing how much of his SIS remained on
which to sentence him. Additionally, appellant argues for the first time on appeal that his
original sentences were facially illegal pursuant to Arkansas Code Annotated section
5-4-301(a)(2)(A) (Supp. 2009). Because this court lacks jurisdiction to hear the appeal,
pursuant to Arkansas Rule of Appellate Procedure–Criminal (2)(a) (2014), we dismiss.
On March 6, 2009, in CR-2009-74, appellant was charged with nine counts of
fraudulent use of a credit card or debit card, Class C felonies, and one count of theft by
Cite as 2015 Ark. App. 356
receiving (credit card or account number or firearm worth less than $2,500), a Class C
felony. On March 6, 2009, in CR-2009-75, appellant was charged with breaking or entering,
a Class D felony, theft of property $500 or less, a Class A misdemeanor, fraudulent use of a
credit card or debit card, a Class A misdemeanor, and theft of property less than $2,500 and
greater than $500, a Class C felony. On April 14, 2009, appellant entered a negotiated guilty
plea to all of the charges in the above two cases.
On May 28, 2009, appellant pled no contest in case numbers CR-2009-74 and CR-
2009-75, to ten counts of fraudulent use of a credit card, two counts of theft of property, and
one count each of theft by receiving and breaking or entering. Running the sentences
concurrently, the circuit court sentenced appellant to an aggregate term of eight years’
imprisonment in the Arkansas Department of Correction (ADC), to be followed by seven
years’ SIS. Conditions of his suspension included that he not commit any offense punishable
by imprisonment. On April 14, 2009, appellant signed the conditions-of-suspended-sentence
order in each of the two cases.
On June 4, 2014, in CR-2009-74 & CR-2009-75, the State filed a petition to revoke
the suspended sentences, alleging that appellant was convicted of forgery, a Class C felony,
in Howard County, Arkansas, and that he had violated a condition of the suspended sentence
in that he had committed a crime against the State of Arkansas.
A hearing was held on June 9, 2014, and the circuit court found that the allegations
in the petition to revoke suspended sentence were true. Appellant objected to sentencing
without proof of his release from the ADC, and the circuit court took the matter under
advisement until June 16, 2014. On June 11, 2014, the State filed a motion to re-open record
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for supplemental proof. On June 16, 2014, the circuit court granted the State’s motion to
reopen record for supplemental proof. The State entered a certified copy of the PEN pack,
and the circuit court found that appellant had five years remaining on his suspended sentence.
After the revocation hearing, the circuit court found that appellant had violated the
terms of his SIS and revoked his suspensions. Based upon that finding, appellant was
sentenced, in CR-2009-74, to ten sixty-month sentences to run consecutive to each other
and consecutive with the Howard County case and the other Hempstead County cases. In
CR-2009-75, the circuit court sentenced appellant to two sixty-month sentences to run
consecutive to each other and consecutive with CR-2009-74 and consecutive with the
Howard County case and the other Hempstead County cases for a total, in both cases, of
sixty years in the ADC. Sentencing orders were filed on June 26, 2014, and amended
sentencing orders were filed on July 8, 2014.
Appellant filed a notice of appeal on July 22, 2014, which would have been timely
filed as to both the original and amended sentencing orders, but it does not specifically refer
to either. In the heading of the notice of appeal, appellant does list both case numbers,
CR-2009–74 and CR-2009-75, but in the body, he states only:
The defendant, Michael Todd, hereby gives notice to all interested parties that he
intends to appeal the conviction of the jury. The defendant requests that all
documents in his court file and the entire transcript be designated as the record in this
matter.
Arkansas Rule of Appellate Procedure–Criminal 2(a) (2014) provides in part:
the person desiring to appeal the judgment or order or both shall file with the clerk
of the circuit court a notice of appeal identifying the parties taking the appeal and the
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judgment or order or both being appealed. The notice shall also state whether the
appeal is to the Court of Appeals or to the Supreme Court.
We hold that appellant’s notice of appeal is flagrantly deficient with respect to these
requirements. We decline to say the order appealed from is easily identifiable because the
notice does not specify the orders. Also, the notice of appeal states that he was appealing a
“conviction of the jury,” when this was a revocation before the circuit court. Finally, the
notice of appeal does not state to which appellate court he is appealing.
Our supreme court has held that whether an appellant has filed an effective notice of
appeal is always an issue before the appellate court. Smith v. State, 2009 Ark. 85. The filing
of a notice of appeal is jurisdictional. Id. Absent an effective notice of appeal, this court lacks
jurisdiction to consider the appeal and must dismiss it. Id.
On the civil side, in Brown v. United Bank, 2014 Ark. App. 643, 448 S.W.3d 726, we
held that a notice of appeal that fails to designate the judgment or order appealed from as
required under the rules of appellate procedure is deficient, but such a defect is not
necessarily fatal to the notice where it is clear which order the appellant is appealing and the
notice was filed timely as to that order. Ark. R. App. P.–Civ. 3(e). But see Smith v. Freeman,
2014 Ark. App. 569, at 2, where this court held:
Normally, where an appellant attempts to designate the order and simply
misidentifies the order by date, our courts will find substantial compliance. The
present situation, however, does not involve accidental inaccuracy. Appellant made
no attempt to designate the order appealed. He merely requested “the case cited
above be appealed.” Such an omission forecloses the possibility of substantial
compliance with Rule 3(e). These deficiencies in appellant’s notices of appeal prevent
us from establishing whether appellant’s appeal is timely and, accordingly, whether we
have jurisdiction.
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In Duncan v. Duncan, 2009 Ark. 565, the supreme court held that, when it was clear
which order the appellant was appealing from given the issues raised in the notice of appeal,
an inaccurate date listed for the order appealed from in the notice of appeal was merely a
scrivener’s error. The only criminal cases citing Duncan are Edwards v. State, 2014 Ark. 185,
and Hayes v. State, 2011 Ark. App. 79, 381 S.W.3d 117, but the facts are not identical. And
in Callaway v. Abshure, 2013 Ark. App. 21, at 2, our court distinguished Duncan and noted
that
[o]ur courts require substantial compliance with [Ark. R. App. P.–Civ. 3(e)].
Consequently, where an appellant attempts to designate the order appealed from and
simply misidentifies the order by date, our courts will find substantial compliance
despite the inaccuracy or “scrivener’s error.” The present situation, however, does not
involve an inaccuracy or a scrivener’s error. Unlike the appellants in the cited cases,
Callaway did not ascribe an incorrect date to the order appealed from or make a
similar mistake. Rather, he made no attempt at all to “designate” the order appealed
from, as required by Rule 3(e). He merely stated that he objected to “the order”
entered in the case. Because such an omission forecloses the possibility of substantial
compliance with Rule 3(e), Callaway’s notice of appeal is ineffective, and we must
dismiss the appeal.
In a recent opinion, we stated, “Pursuant to Rule 3, a notice of appeal must designate the
judgment or order appealed from, and an order not mentioned in the notice of appeal is not
properly before an appellate court.” Johnson v. De Kros, 2014 Ark. App. 254, at 11, 435
S.W.3d 19, 26.
Accordingly, despite appellant’s notice of appeal being timely filed, the language of
the notice of appeal does not fairly and accurately inform us of (1) the order(s) being appealed
from as required by Rule 2(a), (2) the appellate court to which he is appealing, or (3)
whether the order(s) resulted from a bench hearing rather than a jury trial. Appellant’s notice
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of appeal fails to substantially, or otherwise, comply with Rule 2(a). Accordingly, we dismiss
the appeal.
Appeal dismissed.
VIRDEN and HIXSON , JJ., agree.
Anthony S. Biddle, for appellant.
Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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