Opinion
CA CR 10-47
Opinion Delivered November 10, 2010
Appeal from the Arkansas County Circuit Court, [No. CR-2009-0067ND], Honorable David G. Henry, Judge, Reversed And Remanded.
Appellant, Jacob Wade Pope Wages, was found guilty in district court of the crime of harassment. Ark. Code Ann. § 5-71-208 (Repl. 2005). Following a de novo bench trial in circuit court at which appellant appeared pro se, appellant was again found guilty and assessed fines and costs in the amount of $375 and sentenced to ninety days in jail with eighty days suspended. Appellant challenges the circuit court's failure to conduct pretrial proceedings. Particularly, he notes the absence in the record of a waiver of his right to a jury trial. We conclude this absence requires that we reverse and remand.
As we are reversing on this issue, we need not address other issues raised by appellant relating to other pretrial matters, as these issues are not likely to recur on remand.
Our statutes provide that "[i]n order that the right of trial by jury remains inviolate, all appeals from judgment in district court shall be de novo to circuit court." Ark. Code Ann. § 16-17-703 (Repl. 2010). Further, our rules of criminal procedure provide that "[s]hould a defendant desire to waive his right to trial by jury, he may do so either (1) personally in writing or in open court, or (2) through counsel if the waiver is made in open court and in the presence of the defendant." Ark. R. Crim. P. 31.2 (2010). The rules also provide that "[a] verbatim record of any proceedings at which a defendant waives his right to a trial by jury in person or through counsel shall be made and preserved." Id. Thus, as the Arkansas Supreme Court has held, the only way a defendant may waive the right to a jury trial is by personally making an express declaration in writing or in open court, and the open-court proceedings where the defendant waives his or her right must be preserved. Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992).
Following his conviction in district court, appellant appealed to the circuit court. The State concedes that there is no waiver of appellant's right to a jury trial in the record of the circuit court proceedings. The State further concedes that an appellant may raise for the first time on appeal the absence of a waiver of a jury trial. See id. The State argues, however, that because appellant served his sentence and paid his fines, his appeal to this court is moot.
The State premises its argument on its assertion that there is no appeal bond in the record. Our review of the record, however, indicates that the circuit court set a $20,000 appeal bond, and an appeal bond was filed of record on the same day that the circuit court's judgment was entered. Thus, we need not address the State's mootness argument, as the premise on which the argument is based — that there was no appeal bond — is erroneous. Moreover, even aside from appellant's fines and costs in the amount of $375 and his sentence of ninety days in jail with eighty days suspended, the circuit court additionally ordered "no further contact with [the victim], no violations of the law and that [appellant] stay employed for [one] year." These additional provisions in the order cast serious doubt upon the State's assumption that the issue is moot because appellant allegedly paid his fees and fines and served his time.
As an additional argument for affirmance of appellant's conviction, the State argues that we should not entertain appellant's appeal because he did not request any relief that this court can deliver on appellate review. It premises this conclusion on its observation that appellant failed to request that this court reverse his conviction.
Appellant, however, has demonstrated that error occurred in the circuit court, and we have agreed with appellant. Specifically, appellant appealed his conviction in district court to the circuit court, where he was entitled to a jury trial. There, appellant received a bench trial, and the record of the circuit court proceedings does not contain a waiver of his right to a jury trial. And an appellant may raise for the first time on appeal the absence of a waiver of a jury trial. Our rules of criminal appellate procedure provide that "[a] conviction shall be reversed and a new trial ordered where the [court of appeals] finds that the conviction is contrary to the Constitution or the laws of Arkansas, or for any reason determines that the appellant did not have a fair trial." Ark. R. App. P.-Crim. 15 (2010). Given that we have so concluded, our rules mandate that we reverse and remand.
Reversed and remanded.
ROBBINS and GRUBER, JJ., agree.