Kersh v. State

Harold Eugene KERSH v. STATE of Arkansas

CA CR 96-375                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
               Opinion delivered February 5, 1997


1.   Appeal & error -- Inferior Court Rule 9 -- applicable to both
     civil cases and criminal appeals from municipal court. --
     Although Inferior Court Rule 9(a) only applies explicitly to
     civil cases, the rule also governs criminal appeals from
     municipal court to circuit court.  

2.   Appeal & error -- Arkansas Rules of Civil Procedure apply to
     inferior courts -- day of the event not included in
     computation of time for appeal. -- The Inferior Court Rules
     state that, where applicable, the Arkansas Rules of Civil
     Procedure apply to and govern matters of procedure and
     evidence in the inferior courts; Ark. R. Civ. P. 6(a) clearly
     provides that in computing any period of time prescribed by
     the rules, the day of the event should not be included. 

3.   Appeal & error -- appeal timely filed -- case reversed and
     remanded. -- Where the time for appeal began on June 30, 1995, 
      thirty days from that date fell on Saturday, July 29, 1995;
     because the time for appeal expired on a Saturday, the period
     extended to the next day that was not a Saturday, Sunday, or
     legal holiday; appellant's time for appeal accordingly expired
     the following Monday, July 31, 1995; appellant did, in fact,
     timely file his notice of appeal and transcript on that day;
     reversed and remanded. 
     

     Appeal from Sebastian Circuit Court; Floyd G. Rogers, Judge;
reversed and remanded.
     Hough, Hough, & Hughes, P.A., by:  R. Paul Hughes III and
Stephen G. Hough, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y Gen.
and Stuart A. Clearly, Law Student Admitted to Practice Pursuant to
Rule XV(G)(1)(b) of the Rules Governing Admission to the Bar of the
Arkansas Supreme Court, for appellee.

     Andree Layton Roaf, Justice.  
     Harold Eugene Kersh was charged with second-degree battery and
criminal mischief in Fort Smith Municipal Court.  He pled no
contest to the charges and the municipal court judgment was entered
on June 29, 1995.  Kersh filed his notice of appeal and transcript
in the Sebastian County Circuit Court on July 31, 1995.  The State
moved to dismiss the appeal as untimely filed.  The circuit judge
granted the motion and dismissed Kersh's appeal;  Kersh appeals
from that ruling.  We reverse and remand to the circuit court for
further proceedings.
     Because the timeliness of Kersh's appeal is the sole issue
before us, it is only necessary to discuss the facts relevant to
computation of time for the filing of his appeal to circuit court. 
The municipal court judgment was entered on June 29, 1995.  Kersh
filed his notice of appeal and transcript in the circuit court on
Monday, July 31, 1995, or 32 days after the municipal court
judgment was entered.  The State argued to the trial court that
this appeal was untimely for two reasons: 1) the day of the event
(entry of judgment) should be counted in calculating the 30-day
period, which would thus have ended on Friday, July 28, 1995;  or
2) if the 30th day falls on a Saturday, Sunday, or legal holiday,
it should be counted, also requiring Kersh to have filed his appeal
on the previous Friday, July 28, 1995.
     On appeal, Kersh argues that Arkansas Inferior Court Rule 9
should be read in conjunction with either Rule 1.4 of the Arkansas
Rules of Criminal Procedure or Rule 6(a) of the Arkansas Rules of
Civil Procedure in order to determine first, whether the day of the
event should be counted in the calculation of the 30-day period; 
and second, whether a Saturday, Sunday, or legal holiday should be
counted as the final day to appeal.  The State concedes in its
brief that Inferior Court Rule 9(a) and Ark. R. Civ. P. 6(a)
mandate reversal of this case.
     Arkansas Inferior Court Rule 9 reads as follows:
     (a) Time for Taking Appeal. All appeals in civil cases
     from inferior courts to circuit court must be filed in
     the office of the clerk of the particular circuit court
     having jurisdiction of the appeal within thirty (30) days
     from the date of the entry of the judgment.
Although Rule 9(a) only applies explicitly to civil cases, this
court and the supreme court have repeatedly held that this rule
also governs criminal appeals from municipal court to circuit
court.  See e.g., Ottens v. State, 316 Ark. 1, 871 S.W.2d 329
(1994); Laxton v. State, 49 Ark. App. 148, 899 S.W.2d 479 (1995). 
While Rule 9 provides no guidance as to the calculation of the time
period, Inferior Court Rule 10 states as follows:
     Where applicable and unless otherwise specifically
     modified herein, the Arkansas Rules of Civil Procedure
     and rules of evidence shall apply to and govern matters
     of procedure and evidence in the inferior courts of this
     State. (Emphasis added.)
Finally, Ark. R. Civ. P., Rule 6(a) provides in pertinent part:
       (a) Computation: In computing any period of time
     prescribed or allowed by these rules, by order of the
     Court or by any applicable statute, the day of the act,
     event or default from which the designated period of time
     begins to run shall not be included. The last day of the
     period so computed shall be included, unless it is a
     Saturday, Sunday, or legal holiday, in which event the
     period runs until the end of the next day which is not a
     Saturday, Sunday, or legal holiday.  (Emphasis added.)

     Arkansas Rule of Civil Procedure 6(a) clearly provides, and
the Arkansas appellate courts have consistently held, that the day
of the event should not be included.  See e.g., Union Nat'l Bank v.
Nichols, 305 Ark. 274, 279, 807 S.W.2d 36 (1991); Hodge v. Wal-Mart
Stores, 297 Ark. 1, 759 S.W.2d 203 (1988).  Thus, the time for
appeal began on June 30, 1995;  thirty days from that date fell on
Saturday, July 29, 1995. 
     Rule 6(a) also specifically provides that should the time for
appeal expire on a Saturday, Sunday, or legal holiday, the period
shall extend to the next day that is not a Saturday, Sunday, or
legal holiday.  Kersh's time for appeal accordingly expired the
following Monday, July 31, 1995.  Kersh, in fact, timely filed his
notice of appeal and transcript that day. 
     Reversed and remanded.
     Robbins, C.J., and Neal, J., agree.