Bobby Jett, Sr. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION I

BOBBY JETT SR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-668

DECEMBER 14, 2005

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. CR2004-519-2M]

HON. JODI RAINES DENNIS, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Bobby Jett, Sr., was convicted of third-degree battery following a bench trial in Jefferson County District Court. Jett subsequently appealed to the Jefferson County Circuit Court, but the appeal was dismissed as untimely. Jett now appeals to this court, claiming that the procedural requirements for filing an appeal from a district-court conviction are unconstitutional. Because he failed to raise this argument below, we affirm.

Jett was convicted of third-degree battery pursuant to an order entered by the district court on April 26, 2004. He filed a "Notice of Appeal" with the Jefferson County Circuit Court on May 14, 2004. The record was lodged with the circuit court on May 27, 2004-thirty-one days from the time judgment was entered against Jett in district court. The City of Pine Bluff then filed a motion to dismiss the appeal based on Jett's failure to comply with Inferior Ct. R. 9 (2004), which states, in relevant part, 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 30 days from the date of the entry of judgment. The 30-day period is not extended by a motion for judgment notwithstanding the verdict, a motion for new trial, a motion to amend the court's findings of fact or to make additional findings, or any other motion to vacate, alter or amend the judgment.

(b) How Taken. An appeal from an inferior court to the circuit court shall by taken by filing a record of the proceedings had in the inferior court. Neither a notice of appeal nor an order granting an appeal shall be required. It shall be the duty of the clerk to prepare and certify such record when requested by the appellant and upon payment of any fees authorized by law therefor. The appellant shall have the responsibility of filing such record in the office of the circuit clerk.

(c) Unavailability of Record. When the clerk of the inferior court, or the court in the absence of a clerk, neglects or refuses to prepare and certify a record for filing in the circuit court, the person desiring an appeal may perfect his appeal on or before the 30th day from the date of the entry of the judgment in the inferior court by filing an affidavit in the office of the circuit court clerk showing that he has requested the clerk of the inferior court (or the inferior court) to prepare and certify the records thereof for purposes of appeal and that the clerk (or the court) has neglected to prepare and certify such record for purposes of appeal. A copy of such affidavit shall be promptly served upon the clerk of the inferior court (or the court) and the adverse party.

Finding that Jett's appeal was untimely under Rule 9, the circuit court dismissed the appeal.

On appeal to this court, Jett argues that Inferior Ct. R. 9 is unconstitutional because it deprived him of the right to a jury trial as a result of the record being filed one day late. He specifically claims that, because he was unable to prepare or certify the record himself and had to depend on the district court to do this, his fundamental right to a jury trial was "arbitrarily, and unconstitutionally, subjugated to the purely clerical interests of the procedural rule."

As the State notes in its brief, Jett failed to raise any argument below challenging the constitutionality of Inferior Ct. R. 9. Indeed, as the State points out, Jett did not even respond to the City's motion to dismiss, which was based upon the failure to file a timely appeal under Inferior Ct. R. 9. We therefore decline to reach the merits of Jett's argument on appeal. See Dowty v. State, ___ Ark. ___, ___S.W.3d ___ (June 23, 2005) (recognizing that an appellate court will not address arguments, even constitutional ones, raised for the first time on appeal).

Affirmed.

Robbins and Griffen, JJ., agree.