Velek v. State (City of Little Rock)

• Court: Arkansas Supreme Court
• Writing for the Court: Tom Glaze
• Citation: Velek v. State (City of Little Rock), 222 S.W.3d 182 (Ark. 2006)
• Decision Date: 12 January 2006
• Docket Number: No. CR 05-783.,CR 05-783.
• Parties: Steven R. VELEK and David J. Velek, Appellants, v. STATE of Arkansas (CITY OF LITTLE ROCK), Appellee.

222 S.W.3d 182

Steven R. VELEK and David J. Velek, Appellants, v. STATE of Arkansas (CITY OF LITTLE ROCK), Appellee.

No. CR 05-783.

Supreme Court of Arkansas.

January 12, 2006.

William J. Velek, Greenbrier, for appellants.

Office of the City Attorney, by: Heidi M. Massey, Little Rock, for appellee.

TOM GLAZE, Justice.

On November 11, 2004, appellants Steven Velek and David Velek were found guilty of violating Little Rock City Code Section 20-2 in Little Rock District Court. The district court assessed a fine of $500 and imposed an appeal bond of $500 (cash or surety) for each defendant. Both Veleks filed separate notices of appeal on December 10, 2004. However, when the Veleks sought the record of the district court proceedings from the district court clerk, the clerk informed the Veleks that she would not release the record until the $500 appeal bonds were paid. In response, the Veleks filed an affidavit in Pulaski County Circuit Court on December 10, 2004, asserting that the clerk refused to provide the record, and contending that the posting of an appeal bond was not a jurisdictional prerequisite to appeal under District Court Rule 9.

The City of Little Rock then filed a motion to dismiss the Veleks' appeal, arguing that the circuit court lacked jurisdiction over the appeal because the Veleks had failed to comply with Rule 9's requirement of filing a certified copy of the lower court proceedings, and that the affidavit the Veleks filed was improper because it did not specifically state that they had requested that the record be prepared and the request had been refused.

On March 22, 2005, the circuit court granted the City's motion to dismiss the Veleks' appeal to circuit court. In that order, the circuit court found that the Veleks were each ordered to post a $500 appeal bond before the record of the district court proceedings would be released so that they could perfect their appeal to the circuit court. Further, the circuit court noted that the Veleks had attempted to obtain the record from the district court clerk without paying the appeal bond. The circuit court continued as follows:

When defense counsel was informed that he would be required to post the appeal bond as ordered by the district judge, he proceeded to file an affidavit stating that he was refused by the court clerk below.

The bond set for appeal by the [district court] judge below is a valid fee authorized by law for release of the inferior court record in this matter, which [the Veleks] did not post.

This court does not have jurisdiction over this case, as [the Veleks] have failed to post the required appeal bond with the district court in a timely manner.

As posting an appeal bond in this matter is to be construed as jurisdictional in nature, the appeal is dismissed, and the case remanded to the district court for execution of judgment.

(Emphasis added.) The Veleks filed a timely notice of appeal to this court from the circuit court's order, and they continue to argue, as they did below, that the posting of an appeal bond is not a jurisdictional prerequisite to perfecting a criminal appeal from district court to circuit court.

This case requires our interpretation of Arkansas District Court Rule 9. In doing so, this court has held that we construe court rules using the same means, including canons of construction, as are used to construe statutes. Barnett v. Howard, 353 Ark. 756, 120 S.W.3d 564 (2003); NCS Healthcare, Ark., Inc. v. W.P. Malone, Inc., 350 Ark. 520, 88 S.W.3d 852 (2002). We review issues of statutory construction de novo, as it is for us to decide what a statute means. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999).

District Court Rule 9 provides, in relevant part, as follows:

(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 clerk.

* * * *

(d) Supersedeas Bond. Whenever an appellant entitled thereto desires a stay on appeal to circuit court in a civil case, he shall present to the district court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The bond shall be to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree, or order of the inferior court. All proceedings in the district court shall be stayed from and after the date of the court's order approving the supersedeas bond.

(Emphasis added.) Although the rule speaks specifically of "appeal[s] to circuit court in civil cases," this court has held that Rule 9 provides the appropriate procedure in criminal appeals, as well.¹ See Clark v. State, 362 Ark. 545, 210 S.W.3d 59 (2005); Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989) (appeal from conviction for hunting within a closed zone); McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989) (DWI appeal).

In the circuit court, the City of Little Rock argued that the requirement of the payment of an appeal bond was a "fee authorized by law," pursuant to Rule 9(b), that had to be paid before the clerk could provide the Veleks with the transcript of the district court proceedings. On appeal, the Veleks argue that a "bond" is not the same as a "fee," and that the trial court erred in concluding that the bond was a jurisdictional prerequisite to appealing.

The plain language of Rule 9 does not require the posting of an appeal bond; indeed, the Reporter's Notes to Rule 9 comment that the requirement of an appeal bond was abolished with the passage of Rule 9.² The Note to Rule 9 provides as follows:

While Rule 9 does not change prior Arkansas law concerning the time for taking an appeal from an inferior court to circuit court, it does change prior procedures for taking an appeal. Section (b) removes the requirement found in superseded Ark. Stat. Ann. § 26-1302 (Repl.1962) that the appellant file an affidavit that the appeal was not taken for purposes of delay. Also abolished is the requirement found in superseded Ark. Stat. Ann. § 26-1302(3) (Repl. 1962) that a bond be posted as a condition precedent for an appeal. Since such a bond is not required for an appeal from any other court in Arkansas, it was deemed unnecessary under these rules, particularly since appeals from inferior courts are tried de novo.

(Emphasis added.)

The City of Little Rock has failed to mention or address this language from Rule 9 and the Rule's accompanying Reporter's Notes. Instead, it asserts that it is "common practice to set an appeal bond," and that there have been numerous appeals to circuit court in criminal cases in which an appeal bond has been set by the inferior court and satisfied by the appealing party. See Lowe v. State, 300 Ark. 106, 776 S.W.2d 822 (1989); McBride v. State, supra; Baldwin v. State 74 Ark. App. 69, 45 S.W.3d 412 (2001); Worley v. State, 71 Ark.App. 80, 26 S.W.3d 142 (2000); Bass v. State, 9 Ark.App. 211, 657 S.W.2d 218 (1983). However, none of these cases holds that the filing of an appeal bond is a jurisdictional prerequisite for perfecting an appeal from district court to circuit court; rather, they simply point out that, among the other facts of the case, an appeal bond was posted.

It is true that the District Court Rules are mandatory and jurisdictional, and that failure to comply with those rules mandates dismissal of an appeal. See J & M Mobile Homes, Inc. v. Hampton, 347 Ark. 126, 60 S.W.3d 481 (2001) (requiring strict compliance with Rule 9); Pike Avenue Dev. Co. v. Pulaski County, 343 Ark. 338, 37 S.W.3d 177 (2001); Pace v. Castleberry, 68 Ark.App. 342, 7 S.W.3d 347 (1999) (Rule 9's thirty-day limit for filing an appeal is both mandatory and jurisdictional, and the failure to either file the record with the clerk or file an affidavit showing the record has been requested from the clerk within those thirty days precludes the circuit court from having jurisdiction over the appeal).

However, nothing in the plain language of Rule 9 requires a party desiring to appeal from district court to circuit court to post an appeal bond before the circuit court will acquire jurisdiction over the appeal. Rather, for the circuit court to acquire jurisdiction, an appellant must file a record of the proceedings in district court within thirty days of the date of the entry of judgment in the district court, see Rule 9(b), or must file an affidavit within that same time showing that he has requested the clerk of the district court to prepare and certify the record and that the clerk has neglected to do so. See Rule 9(c). The filing of a bond under Rule 9(d) is simply not a jurisdictional prerequisite; however, even if it were, a supersedeas bond is not the same thing as an appeal bond.³ See Gober v. Daniels, 295 Ark. 199, 200-01, 748 S.W.2d 29, 30 (1988) (explaining that there is a "marked difference between the purpose of supersedeas, which is to stay the effect of the judgment, and those bonds which operate to guarantee the appearance of the person").

In this case, the circuit court found that it "[did] not have jurisdiction over this case, as Defendants have failed to post the required appeal bond with the district court in a timely manner." In addition, the court found that "posting an appeal bond . . . is to be construed as jurisdictional in nature[.]" These conclusions by the trial court were...