Jack Nelson Jones Professional Association
May 20-26, 2019
Terry Dover v. State of Arkansas, 2019 Ark. App. 260 (May 8, 2019)
This case comes on appeal from St. Francis County Circuit Court, Honorable Christopher W. Morledge presiding. It involves the appeal of an order denying Terry Dover’s motion to dismiss his DWI (among other charges) on the basis of double jeopardy. The Court of Appeals reversed and dismissed the circuit court ruling because the circuit court did not acquire jurisdiction of the appeal from the district court. This case is as convoluted as they come.
Dover was convicted in the St. Francis County District Court on Jan. 31, 2018 on charges of no seat belt, careless driving, possession of an open container in a vehicle, failure to carry a driver’s license, driving while intoxicated (DWI), and refusal to submit to a chemical test. He filed a certified copy of the district-court docket sheet in circuit court on February 1 as his notice of appeal on the charges of DWI and refusal to submit to a chemical test.
The handwritten docket-sheet provided that the following actions occurred: on Feb. 9, 2018, Circuit Court Judge Ann Hudson presided over the adjudication of Dover’s appeal; the State and Dover appeared with counsel and announced that they were ready for trial; the State presented no proof and called no witnesses, instead it stated it was “standing on its proof”; and Dover moved for a directed verdict based on the State’s lack of evidence, after which Judge Hudson rendered a not-guilty verdict. (As an aside, no transcript was entered from the District Court’s Jan. 28 trial as “proof” for the State to stand upon).
Judge Hudson entered an order on Feb. 9, 2018, finding Dover not guilty on the DWI and refusal-to-submit charges and guilty of the remaining charges. The order contains a note that the prosecuting attorney had approved the order by phone. Eleven days later, on Feb. 20, Judge Hudson, sua sponte, in a handwritten note on the same page as her original ruling on the district court’s docket, set aside and “held for naught” the February 9 order and placed Dover’s case on the misdemeanor-appeals docket for trial on March 23, 2018. Judge Hudson gave no reason for setting aside the order but relied on Arkansas Rule of Civil Procedure 60 (2018) to state that the order “serves as notice to the parties of the court’s action and if the defendant has any response pursuant to Rule 60, he should file same within the time allowed under Rule 60 for response to motions.”
Four-plus months later, on Aug. 2, 2018, Dover filed a motion to dismiss and brief in support alleging that a trial on the charges of DWI and refusal to submit would violate double jeopardy (that he would be tried for the same charges twice). The State filed a response to Dover’s motion to dismiss on Aug. 14, and on Aug. 16, a hearing was held before Judge Christopher Morledge on the motion to dismiss. (There is no transcript of this hearing in the record, either).
Judge Morledge made a factual determination that Judge Hudson lacked sufficient evidence to render a judgment of not guilty at the Feb. 9 adjudication and orally denied Dover’s motion to dismiss, set the matter for trial on Oct. 22, and in a written order entered on Sept. 28, found that jeopardy had not attached. Dover filed a timely notice of appeal on Sept. 17 and filed an amended notice of appeal on Oct. 3.
On appeal, the Court of Appeals noted that, in Jones v. State, 2018 Ark. App. 211, it had reiterated that Arkansas Rule of Criminal Procedure 36(c) (2018) sets forth the manner in which an appeal from a district court is perfected. The Court observed that Rule 36(c) requires that the defendant make a written request on the district court clerk to prepare a certified record, that the defendant serve a copy of that written request on the prosecuting attorney for the judicial district, and that the defendant file a certificate of such service with the district court. It emphasized that failure to strictly comply with Rule 36 deprives both the circuit court and the appellate court of jurisdiction.
The Court found that the record before it did not indicate that Dover ever made a written request to the district court clerk to compile the record, served such a written request on the prosecuting attorney, or filed that request with the district court clerk. Consistent with the holdings in Jones, because Dover failed to strictly comply with Rule 36, the Court found the circuit court and Judge Hanson never gained jurisdiction of the appeal. Accordingly, it reversed the circuit court’s actions and found the district court’s order finding Mr. Dover guilty was never properly appealed.