Barnett v. City of Dardanelle

Mark BARNETT v. CITY of DARDANELLE

CA CR 96-538                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered March 5, 1997


1.   Appeal & error -- appellant failed to file notice of appeal in
     timely manner -- time to appeal was not extended by docket
     entry. -- Where appellant failed to file his notice of appeal
     from municipal court to circuit court within thirty days, as
     required by Arkansas Inferior Court Rule 9(a), and provided no
     authority for his argument that his time to appeal was
     extended by the docket entry, the circuit court lacked
     subject-matter jurisdiction over appellant's case. 

2.   Appeal & error -- time for filing appeal fixed by rule or
     statute is jurisdictional in nature -- jurisdiction may be
     raised at any time. -- When the time for filing an appeal is
     fixed by a rule or statute, the provision that limits the time
     is jurisdictional in nature; because jurisdiction is the power
     or authority of a court to hear a case on its merits, it may
     be raised at any time; jurisdiction may even be raised for the
     first time on appeal. 

3.   Appeal & error -- appeal failed to address trial court's
     ruling upon which dismissal was based -- appellate court will
     not presume reversible error. -- Where the circuit court's
     dismissal of appellant's de novo appeal was based on his
     failure to appear, and where appellant neither addressed the
     ruling made by the trial court to dismiss the appeal nor
     argued that the dismissal, under the circumstances of his
     failure to appear, was an abuse of discretion or in any way
     erroneous, appellant failed to demonstrate or even argue trial
     error regarding those findings;  the appellate court will not
     presume reversible error; the circuit court's dismissal was
     affirmed.


     Appeal from Yell Circuit Court; Paul Danielson, Judge;
affirmed.
     Young & Finley, by:  Dale W. Finley, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Andree Layton Roaf, Judge.
     Appellant Mark Barnett was convicted in municipal court of
speeding and DWI.  His de novo appeal to circuit court was
dismissed for failure to proceed, when neither Barnett nor his
attorney appeared at trial.  On appeal, Barnett argues only that
the circuit court erred in denying his motion to dismiss for
failure to provide a speedy trial.  The State contends that
Barnettþs case is not properly before this court because his appeal
from municipal to circuit court was untimely filed.  We agree with
the State and hold that the circuit court lacked subject-matter
jurisdiction because Barnett did not timely appeal his municipal
court conviction, and for this reason affirm the trial courtþs
dismissal of Barnettþs appeal.
     Mark Barnett was convicted in Yell County Municipal Court of
speeding and DWI on August 10, 1994.  His notice of appeal to Yell
County Circuit Court was filed thirty-five days later on Wednesday,
September 14, 1994.  The State did not move to dismiss the appeal. 
Barnettþs appeal was first dismissed for failure to appear for
trial on August 15, 1995, but was reinstated by the trial court on
October 3, 1995.  Neither Barnett nor his attorney appeared when
the case was next set for jury trial at 9:00 a.m. January 5, 1996. 
The trial court again dismissed Barnettþs appeal for failure to
prosecute and dismissed the jury.  When Barnettþs counsel later
appeared approximately at 10:30 a.m., and sought a ruling on a
speedy-trial motion filed the previous day, the trial court denied
the motion, finding that it had not been timely presented because
Barnettþs appeal had already been dismissed.
     Barnettþs sole argument on appeal is that the trial court
erred in calculating the time for speedy trial.  He asserts, in
essence, that the circuit court lacked jurisdiction to conduct
trials and hearings after the time for speedy trial had run. 
However, we do not reach the merits of Barnettþs argument for two
reasons.
     First, as the State has correctly noted in its argument,
Barnett failed to file his notice of appeal from municipal court to
circuit court within thirty days, as required by Arkansas Inferior
Court Rule 9(a).  The State further contends that the circuit court
therefore lacked jurisdiction over Barnettþs case.  In his reply
brief, Barnett argues that a notation entered by the municipal
judge on his municipal court docket sheet, which reads þTo be paid
or appealed by 9-14-94,þ extended his time to appeal beyond the
thirty-day period allowed by Arkansas law.  However, Barnett does
not assert that he either sought or obtained an extension of time
to file his notice of appeal, or otherwise explain why the docket
entry is anything more than a deadline by which he was to pay his
municipal court fine.
     Barnett provides no authority for his argument and we do not
agree that his time to appeal is extended by the docket entry.  In
Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994), the supreme
court affirmed the circuit courtþs dismissal of an appeal from
municipal court for failure to file the record within thirty days
of the municipal court judgment.  Although Ottens argued that the
State did not timely file its motion to dismiss, the court stated:
     [Appellant] asks us to excuse his failure to comply with
     Rule 9 because the State did not file the motion to
     dismiss until after the filing period had expired.  He
     explains that because of the delay, he had begun
     preparation for trial.  The argument overlooks the fact
     that when the time for filing an appeal is fixed by a
     rule or statute, the provision which limits the time is
     jurisdictional in nature.  See Maxwell v. State, 298 Ark.
     329, 767 S.W.2d 303 (1989); Searcy County v. Holder, 257
     Ark. 435, 516 S.W.2d 901 (1974).  Because jurisdiction is
     the power or authority of a court to hear a case on its
     merits, it may be raised at any time.  Head v. Caddo
     Hills School District, 277 Ark. 482, 644 S.W.2d 246
     (1982).  Jurisdiction may even be raised for the first
     time on appeal.  Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992).  Consequently, the argument that
     preparation for trial had begun prior to the filing of
     the motion to dismiss on jurisdictional grounds is
     without merit.

Id. at 5, 871 S.W.2d  at 331.  
     Moreover, Barnettþs appeal must fail for a further reason. 
Although Barnett argues only the merits of his speedy-trial motion,
the circuit courtþs dismissal of his de novo appeal was based on
his failure to appear, and no trial was conducted.  The trial
courtþs ruling in this regard is clear from the record and from the
order entered that dismissed the appeal and remanded the case to
municipal court.
     Barnettþs brief and argument do not address, in any respect,
the ruling made by the trial court to dismiss the appeal. 
Consequently, he does not argue that the dismissal, under the
circumstances of his failure to appear, was an abuse of discretion
or in any way erroneous.  The appellant failed to demonstrate or
even argue trial error regarding those findings;  this court will
not presume reversible error.  Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995).
     Affirmed.
     Robbins, C.J., and Griffen, J., agree.