McNabb v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Donald L. Corbin
• Citation: McNabb v. State, 238 S.W.3d 119, 367 Ark. 93 (Ark. 2006)
• Decision Date: 29 June 2006
• Docket Number: No. CR 05-1150.,CR 05-1150.
• Parties: Lexie McNABB, Appellant, v. STATE of Arkansas, Appellee.

238 S.W.3d 119

Lexie McNABB, Appellant, v. STATE of Arkansas, Appellee.

No. CR 05-1150.

Supreme Court of Arkansas.

June 29, 2006.

Opinion Concurring on Denial of Rehearing September 7, 2006.

John R. Irwin, Morrilton, AR, for appellant.

Mike Beebe, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., Little Rock, AR, for appellee.

DONALD L. CORBIN, Justice.

Appellant Lexie McNabb appeals the remand order of the Faulkner County Circuit Court. On appeal, Appellant raises two arguments for reversal: the trial court erred when it found that (1) the certified copy of the Faulkner County District Court docket sheet was not a record of proceedings within the meaning of Rule 9(b) of the District Court Rules and that the filing of the docket sheet with the circuit court was untimely because it did not comply with Rule 9(b); and (2) it had no jurisdiction to hear Appellant's appeal from the district court and ordered the case remanded for sentencing or disposition. This case comes to us by certification from the court of appeals, pursuant to Ark. Sup.Ct. R. 1-2(b)(1), (4), and (5), as it involves an issue of first impression, an issue of substantial public interest, and a significant issue needing clarification or development of the law. We hold that the circuit court erred in remanding the case to the district court, based upon its conclusion that the certified docket sheet did not constitute a record of the proceedings, and reverse and remand.

On February 24, 2005, Appellant pled no contest to one count of second-degree terroristic threatening in the Faulkner County District Court. On March 18, 2005, after paying for the record of proceedings from district court, Appellant received a certified copy of the docket sheet from the district court clerk. Appellant timely filed the certified docket sheet, as the record of proceedings, with the Faulkner County Circuit Court in order to pursue an appeal of her district-court conviction.

On June 15, 2005, the State filed a motion to remand, seeking to return the case to district court for disposition, based upon its argument that the certified docket sheet was not the record of the proceedings. Specifically, the State argued that there was no transcript before the circuit court because the following items should have been included: the two warrants for Appellant's arrest, the supporting affidavits, the "Condition of Pre-Trial No Contact Order," and the reports from the Faulkner County Sheriff's Department. On July 7, 2005, in a letter opinion, the circuit court held that (1) the certified docket sheet was not a record of proceedings or transcript, (2) there was not a timely filed record of proceedings or transcript, and (3) it did not have jurisdiction to hear the appeal. Thus, the circuit court granted the State's motion and filed the remand order on July 13, 2005. This appeal followed.

As stated above, Appellant raises two arguments for reversal. First, she maintains that the circuit court erred in finding that the certified copy of the district court docket sheet was not a record of proceedings within the meaning of Rule 9(b) and that the filing of the docket sheet was, therefore, untimely. Second, she argues that the circuit court erred in finding that it was without jurisdiction to hear the appeal and remanding the case to district court for sentencing or disposition. Upon review, these two arguments are so fundamentally intertwined that they can be addressed as one. However, prior to addressing Appellant's arguments, it should be noted that the State contends she has not preserved her arguments for review. We disagree. Appellant argued below that she was in compliance with Rule 9(b) because the certified docket sheet was a record of proceedings. That is precisely the argument made here. Thus, we can proceed in our review.

Arkansas District Court Rule 9 governs appeals from district courts to circuit court. In order for the circuit court to obtain jurisdiction, an appellant must comply with Rule 9. See Velek v. State, 364 Ark. 531, 222 S.W.3d 182 (2006); J & M Mobile Homes, Inc. v. Hampton, 347 Ark. 126, 60 S.W.3d 481 (2001). Rule 9 states, in pertinent part:

(a) Time for Taking Appeal. All appeals in civil cases from district courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within 30 days from the date of the entry of judgment. . . .

(b) How Taken. An appeal from a district court to the circuit court shall be taken by filing a record of the proceedings had in the district court. Neither a notice of appeal nor an order granting an appeal shall be required. It shall be the duty of the clerk to prepare and certify such record when requested by the appellant and upon payment of any fees authorized by law therefor. The appellant shall have the responsibility of filing such record in the office of the circuit court.

Although Rule 9 specifically states its application to civil appeals, we have repeatedly held that it applies to criminal appeals as well.¹ Velek, 364 Ark. 531, 222 S.W.3d182; Clark v. State, 362 Ark. 545, 210 S.W.3d 59 (2005); Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994). Moreover, district court rules, such as Rule 9, are mandatory and jurisdictional. Velek, 364 Ark. 531, 222 S.W.3d 182; J & M Mobile Homes, 347 Ark. 126, 60 S.W.3d 481. Failure to comply with Rule 9 mandates the circuit court's dismissal of the appeal. Id.

In the present case, it is undisputed that Appellant filed the certified district court docket sheet within thirty days of the date of the entry of judgment. Thus, the issue is whether a certified district court docket sheet is a "record of proceedings" from which an appeal may be taken under Rule 9. We construe court rules using the same means and canons of construction used to interpret statutes. Velek, 364 Ark. 531, 222 S.W.3d 182; Henyan v. Peek, 359 Ark. 486, 199 S.W.3d 51 (2004). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language is plain and unambiguous, there is no need to resort to rules of statutory construction, and the analysis need go no further. Id. However, when a statute is ambiguous, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. State of Ark. Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005). We reconcile provisions to make them consistent, harmonious and sensible in an effort to give effect to every part. Id. We review issues of statutory construction de novo, as it is for this court to determine what a statute or rule means. Id. In this respect, we are not bound by the circuit court's decision; however, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Henyan, 359 Ark. 486, 199 S.W.3d 51.

Rule 9 clearly requires that an appeal from district to circuit court shall be taken by filing a record of the proceedings; however, Rule 9 does not enumerate what constitutes a record of proceedings. Furthermore, this court has never expressly defined what constitutes a record of proceedings, but it has referenced what is sufficient to satisfy this requirement.² In J & M Mobile Homes, 347 Ark. at 130-31, 60 S.W.3d at 484, we held that Rule 9 "requires the filing of a certified copy of the transcript of the lower court proceedings within thirty days in order for the circuit court to acquire jurisdiction over the appeal." Additionally, in both Frana v. State, 323 Ark. 1, 912 S.W.2d 930 (1996), and King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991), we noted, in dicta, that the record for municipal courts can be the docket sheet. In yet another case, Smith v. State, 316 Ark. 32, 34, 870 S.W.2d 716, 717 (1994), we stated that, although filing was untimely, "[i]n this case, the necessary record would have included the information, the motion, and the judgment of the municipal court." Lastly, the court of appeals, in Baldwin v. State, 74 Ark.App. 69, 45 S.W.3d 412 (2001), held that the filing of a notice of appeal and an appeal bond signed by the municipal judge could not serve as a replacement of the record. Consequently, based upon our review of prior case law and Rule 9 itself, we hold that to satisfy the Rule 9 "record of proceedings" requirement, the record of proceedings must, at a minimum, be (1) certified by the clerk of the particular district court in which the case originated, and (2) reflect all the proceedings, including all filed documents and motions, before the district court.³

Here, the circuit court found that Appellant did not comply with Rule 9 because the certified district court docket sheet was not a record of proceedings. In determining that the certified docket sheet was not a record of proceedings, the circuit court, relying on Baldwin, referred to the use of the word "transcript" as a sufficient document to satisfy the record of proceedings. The circuit court found that Appellant's receipt for the purchase of a transcript did not convert the certified docket sheet into a record of proceedings or transcript. Upon review, the circuit court erred in reaching this conclusion, as it was based upon a misinterpretation of Baldwin and our case law.

In Baldwin, the appellant filed a notice of appeal and an appeal bond signed by the municipal judge. There, the court of appeals rejected the appellant's argument that because the appeal bond contained the same information as the transcript, it was sufficient to satisfy the record of proceedings. The present case is distinguishable from Baldwin in two parts. First, under Rule 9(b), it is the duty of the clerk to prepare and certify the record when requested by the appellant, and it is the appellant's duty to file the record. Here, Ap...