Gillette v. City of Fort Smith

• Decision Date: 02 March 2023
• Docket Number: CR-22-120
• Citation: Gillette v. City of Fort Smith, 2023 Ark. 24, CR-22-120 (Ark. Mar 02, 2023)
• Parties: ERIC GILLETTE APPELLANT v. CITY OF FORT SMITH, ARKANSAS APPELLEE
• Court: Arkansas Supreme Court

2023 Ark. 24

ERIC GILLETTE APPELLANT v. CITY OF FORT SMITH, ARKANSAS APPELLEE

No. CR-22-120

Supreme Court of Arkansas

March 2, 2023

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FCR-21-174] HONORABLE STEPHEN TABOR, JUDGE

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.

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.

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 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.

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 districtcourt 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 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...