Cite as 2020 Ark. App. 561 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-20-351
Opinion Delivered: December 9, 2020
APPEAL FROM THE LONOKE NICHOLAS GRUBER COUNTY CIRCUIT COURT APPELLANT [NO. 43CR-17-714]
V.
STATE OF ARKANSAS
HONORABLE JASON ASHLEY PARKER, JUDGE APPELLEE APPEAL DISMISSED
PHILLIP T. WHITEAKER, Judge
Nicholas Gruber appeals a Lonoke County Circuit Court order dismissing his appeal
of a misdemeanor criminal trespass conviction. Because his appeal to the circuit court was
not timely filed, we lack jurisdiction and dismiss his appeal.
In June 2017, Gruber was convicted of misdemeanor criminal trespass in Ward
District Court. The district court set the date of the sentencing/restitution hearing for July
25, 2017. Gruber did not return for the hearing, and the hearing was held in absentia. After
the hearing, the court ordered Gruber to pay an $80 fine and costs and fees totaling $180.
The court also ordered restitution to the victim in the amount of $20,750. The sentence
was entered on the district court docket on August 4, 2017.
On November 28, 2017, Gruber appeared before the Ward District Court and pled
no contest to multiple unrelated charges. He was ordered to pay a $1050 fine on those
charges. The court then added this new monetary obligation to the restitution, fines, and
costs from Gruber’s criminal-trespass conviction and set up a payment plan.
On December 22, 2017, Gruber electronically filed a certified copy of the district
court docket in the Lonoke County Circuit Court in an effort to appeal his criminal-trespass
conviction.
In the appeal to the circuit court, the State moved to dismiss due to the untimely
filing of the record. The State argued that the district court had issued a final order on
August 4, 2017, when it entered Gruber’s conviction, sentence, and award of restitution
into the record and that Gruber was required to file his appeal within thirty days of that
order. He had not done so. Because Gruber’s appeal was untimely, the State contended
that the circuit court lacked jurisdiction, and the appeal should be dismissed. Gruber
responded, arguing that the time for filing an appeal did not begin to run until the
November 2017 hearing and that he had timely filed his appeal within thirty days of the
hearing. The circuit court granted the State’s motion to dismiss, finding that the appeal was
not timely filed thereby depriving it of jurisdiction.
Gruber appeals the dismissal, claiming that he was not completely and lawfully
sentenced until November 28, 2017, and that he timely filed the certified docket with the
circuit clerk within thirty days of that date as required by Rule 36(b) of the Arkansas Rules
of Criminal Procedure. More specifically, Gruber argues that he was not completely
sentenced until the district court articulated the timeline for paying his monetary obligations
at the November 28 hearing. He further contends that because sentencing is a critical stage
of the proceeding, he was unlawfully sentenced in absentia at the hearing in July, and as a
result, his sentence was not lawfully imposed until he was present and represented by counsel
at the November 28, 2017 hearing.
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His arguments lack merit. The circuit court correctly ruled that it lacked jurisdiction
to hear appellant’s untimely appeal from the district court to the circuit court. Arkansas Rule
of Criminal Procedure 36 governs appeals from district court to circuit court, and it requires
the defendant to perfect an appeal by filing, at a minimum, a copy of the district court
docket sheet and any bond or other security filed by the defendant to guarantee the
defendant’s appearance before the circuit court within thirty days after entry of the district court
judgment. See Ark. R. Crim. P. 36(b), (c). It is well established that “[t]he thirty-day filing
requirement of Rule 36 is strictly enforced and is jurisdictional in nature.” Risner v. State,
2011 Ark. App. 549, at 6.
Here, Gruber was found guilty of misdemeanor criminal trespass in June 2017. In
July 2017, the court imposed $260 in fines and costs and $20,750 in restitution after
conducting a sentencing and restitution hearing. The district court entered its judgment on
August 4, 2017, as reflected on its docket. The circuit court concluded that Gruber’s
sentence was final upon entry of judgment on August 4, 2017. We agree. See Roberson v.
State, 2010 Ark. 433 (holding appeal filed prior to sentencing premature).
Gruber argues that by combining his monetary obligations from the criminal-trespass
conviction with his fines from his subsequent unrelated charges, the district court did more
than just set up a monthly payment plan; it converted the previously imposed sentence into
a partial sentence. Thus, he contends that the sentence became final only after the November
2017 hearing when he was informed of its imposition. We disagree. Rule 36 clearly directs
that Gruber’s appeal time began to run “from the date of the entry of the judgment in
district court,” not from the date he is informed of its imposition. Ark. R. Crim. P. 36(b).
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Finally, Gruber’s argument that he could not be properly sentenced in absentia in
July 2017 also fails. Arkansas Code Annotated section 16-89-103(b) (Repl. 2005)
specifically provides that a court may try a defendant in absentia in misdemeanor cases: “If
the indictment is for a misdemeanor, the trial may be had in the absence of the defendant.”
Thus, the district court had the authority to sentence Gruber despite his decision to absent
himself from the sentencing proceeding. The court held a sentencing and restitution hearing
in July 2017 after which it imposed a fine and ordered restitution. The court’s decision was
entered into the district court docket on August 4, 2017. The time for filing an appeal
began to run on that date.
In summary, Gruber did not file a certified copy of the district court docket with the
circuit court until December 2017—a time well outside the thirty-day time period
mandated by Rule 36—and his appeal was therefore untimely. Because a defendant’s failure
to properly perfect his or her appeal from district court to circuit court deprives the circuit
court of jurisdiction, the appellate court likewise lacks jurisdiction to entertain any further
appeal from circuit court. Williams v. State, 2010 Ark. App. 525, 334 S.W.3d 873. Under
these legal standards, the circuit court properly granted the State’s motion to dismiss
Gruber’s appeal from the district court, and this appeal should also be dismissed. Id.
Appeal dismissed.
ABRAMSON and MURPHY, JJ., agree.
Green & Gillespie, by: Chad M. Green, for appellant.
Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.
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