Wood v. City of Casper, 5791

• Decision Date: 01 April 1983
• Docket Number: No. 5791,5791
• Citation: 660 P.2d 1163
• Parties: Charles E. WOOD, Appellant (Appellant-Defendant), v. CITY OF CASPER, Appellee (Appellee-Plaintiff).
• Court: Wyoming Supreme Court

Page 1163

660 P.2d 1163

Charles E. WOOD, Appellant (Appellant-Defendant), v. CITY OF CASPER, Appellee (Appellee-Plaintiff).

No. 5791.

Supreme Court of Wyoming.

April 1, 1983.

Ronald L. Brown and Donn J. McCall of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellant.

Richard H. Peek, City Atty., Casper, for appellee.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.

THOMAS, Justice.

The significant question presented for review by this appeal is whether a district court, in its role as an intermediate appellate court, properly can dismiss an appeal taken from a criminal conviction in a municipal court, which otherwise has been perfected, because of the failure of the appellant to seek hearing or argument before the district court. The district court granted a motion to dismiss the appeal premised upon a "lack of prosecution." We conclude that the district court improperly dismissed the appeal, and we shall reverse that disposition.

Charles E. Wood, the appellant, was charged with violations of the Uniform Act Regulating Traffic on Highways by complaints filed in the municipal court of the City of Casper. These offenses were charged as having occurred on October 22, 1980, and specifically were for reckless driving in violation of § 31-5-229, W.S.1977, and leaving the scene of an accident in violation of § 31-5-1102, W.S.1977. Both of these statutory provisions have been adopted by § 24-1 of the Casper City Code. The appellant entered pleas of not guilty to both charges and demanded a jury trial. Trial was held to the court on April 2, 1981, and Wood was found guilty of both charges. A maximum fine for both charges in the amount of $410 was imposed, and counsel for Wood stated that "the Defendant does intend to appeal this."

A notice of appeal was filed in the municipal court of the City of Casper on April 13, 1981, and this same notice of appeal was filed in the District Court of the Seventh Judicial District in Natrona County on April 23, 1981. The record on appeal also was filed in the district court on April 23, 1981. On May 1, 1981, a Motion for Extension of Time Within Which Appellant May File His Brief, together with a Stipulation for Entry of Order Extending Time Within Which Appellant May File His Brief, was filed in the district court. Both documents recited that they were made pursuant to Rule 23(f) of the Wyoming Rules of Criminal Procedure for Justice of the Peace Courts and Municipal Courts and Rule 5.01 of the Wyoming Rules of Appellate Procedure. By an Order Extending Time Within Which Appellant May File His Brief, which referenced the same rules, the district court extended the time for filing appellant's brief to and including May 19, 1981. Thereafter by stipulation and joint motion referencing the same rules, and another similar order, the time for appellant to file his brief was extended to and including May 29, 1981, on which day appellant's brief was filed. Then on June 26, 1981, there was filed a Stipulation and Joint Motion for Extention [sic] of Time Within Which Appellee May File His Brief, and an Order Extending Time Within Which Appellee May File Its Brief which extended the time for the City of Casper to file its brief to and including July 29, 1981. Both of these documents also referenced Rule 23(f), Wyoming Rules of Criminal Procedure for Justice of the Peace Courts and Municipal Courts, and Rule 5.10 of the Wyoming Rules of Appellate Procedure.

Nothing further occurred in the file until July 6, 1982, on which date the City of Casper filed its Motion to Dismiss Appeal, stating as a ground therefor "lack of prosecution." After a hearing on August 16, 1982, the district court entered its Order in which it recited "that said Motion should be approved and granted" and pursuant to which the Wood appeal was dismissed. This appeal then is taken from this order of the district court.

In arguing his appeal to this court the appellant presents the following issues for review:

"I. WHETHER, IN LIGHT OF THE EXPRESS LANGUAGE OF RULE 6.01, W.R.A.P., GOVERNING SETTINGS AND APPEARANCES BEFORE DISTRICT COURTS SITTING AS INTERMEDIATE COURTS OF APPEAL, THE DISTRICT COURT ERRED IN EXERCISING DISCRETION (NOT CONFERRED IN THE WYOMING RULES OF APPELLATE PROCEDURE) TO DISMISS THE APPEAL OF APPELLANT FOR LACK OF PROSECUTION.

"II. WHETHER, IN THE EVENT IT IS DETERMINED THE DISTRICT COURT HAD DISCRETION TO DISMISS THE APPEAL, THAT COURT, NEVERTHELESS, ABUSED THE EXERCISE OF ITS DISCRETION IN THE CIRCUMSTANCES OF THIS CASE."

The City of Casper makes a counter-statement of issues, which it states as follows:

"1. WHETHER THE PROVISIONS OF RULE 23, W.R.Cr.P.J.C., DEALING WITH APPEALS FROM MUNICIPAL COURTS, IS APPLICABLE.

"2. WHETHER THE DISTRICT COURT, ACTING AS THE APPELLATE COURT, HAD THE DISCRETION TO DISMISS THE APPEAL OF APPELLANT FOR LACK OF PROSECUTION.

"3. WHETHER THE DISTRICT COURT, ACTING AS THE APPELLATE COURT, ABUSED ITS DISCRETION IN DISMISSING THE APPEAL OF APPELLANT FOR LACK OF PROSECUTION UNDER THE CIRCUMSTANCES OF THIS CASE."

When this court, on January 1, 1975, adopted the Wyoming Rules of Criminal Procedure for Justice of the Peace Courts and Municipal Courts, a change was effected in the manner of review of criminal cases which were appealed from justice of the peace courts and municipal courts. Prior to that time the taking of an appeal resulted in a trial de novo in the district court. Rule 23(a), W.R.Cr.P.J.P.C., provided in pertinent part as follows:

" * * * No trial anew in the district court is provided, and all appeals shall be tried on questions of law."

The effect of this language was to change from a trial de novo to a review in the district court based upon the record from the justice or municipal court.

Prior to that time this court had been committed to a requirement that one appealing from a judgment of a justice of the peace court or a municipal court had an obligation to bring his appeal before the district court for a new trial within three terms of the district court after the appeal was taken, and failing, without excuse, to do so, his appeal was subject to dismissal for want of diligent prosecution. Shafsky v. City of Casper, Wyo., 487 P.2d 468 (1971), and authorities cited therein.

In this case the position of the district court was not articulated in its order. We may fairly assume, however, that the arguments made here reflect the arguments which were made before the district court, and to that extent they are indicative of the position of the district judge. In the appellant's brief considerable attention is devoted to Rule 14 of the Uniform Rules for the District Courts of the State of Wyoming. This rule provides as follows:

"Cases on the docket in which no substantial and bona fide action towards disposition has been taken for six (6) months are subject to dismissal for lack of prosecution."

The appellant's brief then recites in detail the practice of the court in the Seventh Judicial District of furnishing notices prior to term time of cases which may be subject to dismissal under that rule. The appellant also recognizes the decision in Shafsky v. City of Casper, supra. From these arguments and those in the brief of the City of Casper supporting the action of the district court we conclude that the district court dismissed this appeal relying upon Rule 14 of the Uniform Rules for the District Courts of the State of Wyoming together with the rule which is reiterated in Shafsky v. City of Casper.

Wood, in seeking to avoid the application of those concepts, argues that the appeal to the district court is governed by the Wyoming Rules of Appellate Procedure because Rule 1.01, W.R.A.P., provides:

"All appeals to the district court and Supreme Court shall be governed by these rules."

The appellant then turns to Rule 6.01, W.R.A.P., which provides as follows:

"The clerk will notify counsel by mail or telephone of cases set for hearing. Counsel for either or all of the parties, when wishing to submit a case upon briefs, may avoid personal attendance at court by filing a written direction to the clerk to so submit upon briefs. A motion to postpone a hearing beyond the time assigned...