APPENDIX Rules Adopted or Amended by Per Curiam Orders
ARr.l AppsNDD( 663 IN R.E: RULES of CRIMINAL PROCEDURE, ADOPTION ofRULE 36 Suprene Court of Arkansas Opinion delivered April 28, 2005 [rn Cunnu. The Supreme Court Comminee on Cdminal I Practice has proposed the adoption ofa uew n:Ie to addres criminal appeals from district coun to circuit court Such appeals are currendy govemed by Dimict Court Rule 9, which generally is a rule for civil actions. The committee recommends proposed Rule 36 to serve as a comprehensive procedure goveming appeals fiom limited jurisdiaion courB !o ciranit courts. The rule attempts to codify existing practice as reflected in Distict Court Rule 9 and statutes. Tte rule is further explained in the accompanying Reporter's Notes. The proposed rule hrq been circulated by tte committee to all district courtjudges and their comments have been considered by the committee. Tte proposed rule has also been reviewed by our Committee on Civil Practice. Today, we publish ttre proposal for comment. We o4press our gratitude to the members of the Crimioal Practice Committee for their work. Commenr should be submitted in writing by July 1, 2005 and addressed to: Les Steen, fukansas Supreme Court Clerk" Justice Building, 625 Maishall Street, Litde Rock, AR 72201, Attention: Criminal Procedure Rules. ArkaDsos Rulee of Crlmlnal Procedrlrs Rnle 36. Appeals &om Diotrtct CoErt to Citcuit Coust. (4 F5gfu a Aneal. L person convicted of a crimind offense in a distria cout! induding a person convicted upon a plea ofguilty, may appeal thejudgaent ofcoovicion to the circuit coun 6r tlejudicial disaict in which the conviction occurred" The stat€ shal! have no dght ofappeal ftom ajudgmeut ofa distict court. Rslrottor's Notos Sub,section (a) incorporates Ark. Code Ann. S 16-9G501 (which is shown \ Co& Revision Commision as suPerseded) aud Arkansas Code Ann. S 1G9G502. &c ako,
664 AppsNDD( 1362 Amendment 80, $ 7(A) of the Arkansas Constitution, which etablishes ilistrict coure as trial courts of limited jurisdiction, subjea to the right ofappeal to ciruit cout b) n*f* Takhg Aqpeal, An appeal ftom a district coutt to the gircuil geurt chell be 6led in the office ofthe clerk ofthe circuit court havingjurisdictiou ofthe appeal within thirty (30) rlays 6om the date ofthe entry ofthejudgment in the district courl The 30-day period is not ocended by the f,ling ofa post-trial motion under Rule 33.3. RE ortor's Nobg Subaection (b) resates tie provisions of District Court Rule 9(a), which govemed appeals in criminal cases prior to the adoption ofArkansas Rule of Criminal Procedure 36. (c) Hou Takm An appeal tom a district court to circuit court qhall be aken by 6ling with the cletk ofthe circuit coun a record of the prccdings in the dimict court. Neither a notice of appeal nor an order granting an appeal rhell g6 6quL"4 It shall be the duty ofthe clerk of the district court to prepare and cenify such record when requested in writi"g by the defendant and upon paynent by the defen&ut ofany fees ofthe disrrict court authorized by law therefor. The deGndant sball have the responsibility sf 6ling such cerdfied record in the ofrce ofthe circuit clerk" The record shall include auy supenedeas bond or appeal bond 6led by the deGtrdant. RErortot'r Noteo Sub,section (c) is substantially identical to District Court Rule 9(b), which govemed appeals in Eimirrel cases prior to the adoption of Arkansas Rule of Criminal Procedure 36. The only difference between thiq zuhnection and District Court Rule 9(b) is the 6nal sentence, which appears only in this sutrsection in recopition of the 6ct tbat the record in a criminal que will usually include an appearenc€ bond and possibly a supersedeas bond. Ark" Code A-nn- S 1G95-505 descdbes the Fanscript in a criminal case but that provision was not included in this subsection because $ 16-96-505 i6 shown as superseded by tie Code Revision Coromision. (d) Failure ofiletk afle rerord. Ifthe clerk ofthe distict court does not prepare and certi$ toot'6 f6 6ling in the cirorit court in a ti-ely rnenner, fig deftnda " rt may take an appeal by ffling an aftdavit in the
ARK.I AppBNorx 665 ofrce ofthe circuit clerk, within 30 daln from the date ofthe entry of the judgment in the district court, showing (i) that dre appellant has requested the clerk of the district court to prepare and cettify the record for purposes ofappeal and (ii) that the clerk has not done so. The defendant shdl promptly sen/e a copy of such affidavit upon the clerk of the district court and upon the prosecuting attorney. On motion ofthe defendant or the prosecuting attorney, the circuit court may order the clerk ofthe distria court to prepare, certify, and file a record in the circuit court. Reportet's Notes Subsection (d) is based on Distria Court Rule 9(c), which governed appeals in criminal cases prior to the adoption of Arkansas Rule of Crimind Procedure 36. (e) Bond, When an apped is taken from a disrict court to circuit court, there shall be no supenedeas of the judgment entered by the district court unless the defendant posts a supenedeas bond with security or deposit as required by the district court. The district court rray also require the defendant to post an appearance bond to guanmtee the appearance of the defendant before the circuit court, provided that an appearance bond originally posted with the distria court to guanmtee the appearance of the deGndant before that court shdl serve to guanmtee the appearance of the defendant before the circuit court on appeal. The clerk of the distria court shall transmit any supenedeas bond or appearance bond with any secwity or deposit to the circuit couft. After acquiring jurisdiaion of the apped, the circuit court may modifr the amount or security of the appearance bond. Repotter's Notes Subsection (e) is based on District Court Rule 9(d) and Ark. Code Ann. S 16-96-5M. The sentence providing that an apped bond posted with the disrict court shdl serve to guarantee the appearance of the deGn&nt before the circuit court is consistent with Rule 9.2(e). The subsection also distinguishes a supenedeas bond from an appeal bond. In Gobu u. Daniels,295 Ark. 799,748 S.W.2d 29 (1988) the Supreme Court stated: "The regimens of Rule 9.2 have no practicable application to the setting of a supersedeas bond contemplated by [16-9G504], nor are they constitutionally required. There is a marked difference betrn een the pulpose of (
APmroD( 1362 which is to stay the efu of the judCn"enq and those bonds which opemte to gurrantee the appearance ofthe penon." (I) Noae. When the record ofthe proceeding in the district court is filed in the ofice ofthe circuit cler\ the circrrit clerk sball prompdy give written notice thereof to the prosecuti.g attomey and to tle circuitjudge to whom the appeal is asignecl Rqrrtet'c Notce Subsection (I) ensures that both the prosecuting anomey and the circuitjudge are aware that an appeal to citcuit cou$ has been filed and should reduce the number ofcases in which tle defendant 6fu to receive the qpeedy tid required by Rule 28.1. There fu l6thing compaable to thiq subsection in current law. (g) nial De Noaa. An appeal from a judgment of conviction in a district court shell be tried & nolo in the cincuit court as ifnojudguent had beeo rendered in the disria courr Re'portst's Notot Prior o the adoption of suhection (g), ArL Code Ann. S 1G9G507 proriided for ile nao revtew on appeal ftom a limited jurisdiction court to circuit court See also, Amendment 80, S 7(A) ofthe Arkansas Constitution, which requires a trial de wvo in the circuit cout This subsertion does not addres the collection or disposition of6nes, penalties, fofei-tures, or cos$ imposed by the ciranit coura These maBen will continue to be govemed by A*" Code An - S 1G9G403. $) Default Jadgn ent The ciruit court may affrm the judgment of the disttict court if (0 the defedant 6ils to appear in circuit court when the case is set for trial; or (ii) the clerk ofthe di$dct court fiils to preparc and certify a record for 6ling in the circuit court as provided in subrsection (c) ofthis nrle and tle defendant 6ils to move the circuit court for an order to compgl thg 6li.g ofthe record qrithin thfuty (30) &F alter 6ling the afidavit provided in subseaion (d) of this rule. Rcportrdc Notes This subrsection is based loosely on ArL Code Arm. S 1G9C 508. The collection and disposition offnes, penalties, fofi
AR&l Appnr.rnrx 667 otlres, or cosB in the event ofa defiultjudgment will coDtinue to be govemed by Ark. Code Ann. S 16-96-403. A Disttid court uiilaut clerk. lf r distict court has no clerk, any reference in this rule to the clerk ofa district court sball be deemed to rcfer to the judge of the disrrict cor.rrt IN RE: RULES GO1IERNING ADMISSIONTO THE BAR ofARKANSAS Supreme Court ofArkansas Opiniou delivered W 26,m05 T)eR CuRrAM. Rule XII.2. of the Ralus C'ortmitg Ailuision Y o ilp Bar (Rules) presently states: "No candiditc shall be allowed to ake the bar qsmination who is not a citizen ofthe United States or an dien lawfirlly residing in the United Sates." The Arlansas State Board ofkw Emminers (Board) has consideted this l,"guage in the context of the increasing number of foreip students attetrding American law schools on student visas. Those snrdents then secure a professional aaining visa for an additional year after graduation during which time they ake the bar examination. It does not appear that the requirement ofcitizenship, which is the fint altemative of the current rule, is constitutional, ee In Fc: Ctffitls,413 U.S. 717 (1973). The second option posited by the rule "alien lawfirlly residing" - is lncertain of definition, especia l ly in li.ght.of the numerout inrmigrant s1 asa im"nigrrnt status categories that are available to foreip law students. A survey ofotherjurisdictions -alces clear that no jurisdiction has a citizenship requirement. Many do not inquite beyond determining whether the applicant is lawfirlly present at the time he or she akes the examination. A few sates have language similat
1362 to xrhet we have in Arkensas, but the language does not provide gui.l-nce on what "reriding" might 5g"n. In light ofthese conriderations, the Board recommen& that Rule XIL2. be amended as follows: RULEXI.2. Candidates may be a United Sates citizen, an alien lawfirlly xdrni6gd for permanent residence, or an alien othersise authorized to work or study lawtrlly in the United States. I[e publish this proposal for comment oft]e bench and the bar. Such commenB should be directed to Leslie Steen, Clerk of the Coutt, 625 Marshdl St., Uttle Rock, AR 722O1, befote September 1, 2005.
ARrt.I AppsNDD< IN RX: JUDICIAL DISCPLINE and DISABILITY COMMISSION Suprcme Coun ofArkansas Opinion delivered W 26,2Ms [rn Cun nm. [n accordauce with Amendment 66 of the I Constitution of Arkansas and Act 537 of 1989, tle coun reappoinn o the Commission the Honorable LeonJamiso& Circuit Judge, ElwenthJudicial Cfucuit-Wesl This temr expires onJune 30, 2011. The court th,"tqJudgeJamison for accepring reappoinment to the Co"nmi.sio1. IN RE: SUPREME COURT COMMMTEE ONT}IE UNAUTHORIZED PRACTICE of LAW Supreme Court of Arlonsas Opinion delivered W 26,2005 f)rn Cumarrr- Lloyd Vance Stone, III, Esq., ofBentonville, -f Third Congressional Dicict, is appointed to the Supreme Court Committee on the Unauthorized Practice of I:w for a three-year term to expire on May 31, 2008. I\rs. IGren Kay Howard of Batesville is appoinrcd to an At-Large Position for a three-year term o oqirc on May 31, 2008. fte Court thanls Mr. Stone and Ms. Howard for accepting eppointment to ihi. important Committee. We also exptess our appreciation to Jim Coutts, Esq., and Catherine Duvall, whose terms have expired for their service to the Committee.
AR&I 677 IN RE: Luther \Ence MARKER, Arkansas Bar No. 92234 05-549 Supreme Court ofArkarrsas Opinion delivercd W 26,2005 Petition for Volunary Surrrender of Law License granted. T)eR Cr.rRrAM. Upon tecommendation of the Supreme -F C"u.t C".-ite'e on Professional Couduc! aud in iieu of disbarment proceedingq we here\ acc€pt the volunary surrendet of the law license of Luttrer Vance Marker, Little Rock, Arkaosas, to practice law in the State of Artansas. Mr. Marker's name shrll be removed ftom the registry oflicensed artomep, and he is barred and enjoined ftom engagiag in ttre practice oflaw in rhiq state. It is so ordered-
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