The opinion
Karen R. Baker, Judge, concurring. I concur with this decision because we are bound by precedent to conclude that the district court’s conviction of Mr. Sundeen required that the trial court also find that probable cause existed for the institution of the proceedings. I write separately to emphasize that the cases which are directly on point, and which we are bound to follow, contradict the purpose of de novo review by the circuit court and result in the anomaly of one circuit court being bound by a lower court’s ruling. It is a situation which the supreme court should review and resolve.
De novo review provides due process and other procedural safeguards to an accused. “Trial de novo” means “as though there had been no trial in the lower court.” Harrell v. City of Conway, 296 Ark. 247 , 753 S.W.2d 542 (1988). The applicable statute provides for an appeal to circuit court, where the accused is entitled to an entirely new trial, “as if no judgment had been rendered” in municipal court. Griffin v. State, 297 Ark. 208, 209 , 760 S.W.2d 852, 853 (1988); Ark. Code Ann. § 16-96-507 (Repl. 1999).
Appellate jurisdiction of circuit courts with respect to appeals from municipal courts is governed by Ark. Code Ann. § 16-19-1105 (1987). Johnson v. State, 312 Ark. 38 , 846 S.W.2d 662 (1993). Although § 16-19-1105 addresses appeals from the decisions of justices of the peace, the statute applies to municipal court misdemeanor convictions. Johnson, supra; Casoli v. State, 297 Ark. 491 , 763 S.W.2d 650 (1989). The statute provides in part:
(a) Upon the return of the justice of the peace being filed in the clerk’s office, the court shall be in possession of the cause and shall proceed to hear, try, and determine the cause anew on its merits, without any regard to any error, defect, or other imperfection in the proceedings of the justice of the peace.
(b) The same cause of action, and no other, that was tried before the justice of the peace shall be tried in the circuit court upon the appeal. . . .
Ark. Code Ann. § 16-19-1105 (Repl. 1999).
The trial in the circuit court is not to be influenced or affected by what occurred in the municipal court. Bussey v. State, 315 Ark. 292 , 867 S.W.2d 433 (1993). Even a defendant who has pled guilty or otherwise agreed to judgment in a lower court may subsequently appeal and retry the issue of liability in circuit court:
We are convinced that it is indeed illogical to provide for a complete retrial of municipal court judgments entered pursuant to pleas of guilty, by consent or confession or by default, if the issue of liability cannot also be retried. The constitutional guarantee of a jury trial would be meaningless in those appeals involving a sum certain if the defaulting defendant is not allowed to deny liability on de novo review.
Murdock v. Slater, 326 Ark. 1067, 1073 , 935 S.W.2d 540, 543 (1996).
The presumption we must follow when analyzing whether probable cause existed to institute proceedings against Mr. Sundeen deviates from the express purpose of de novo review: to conduct a trial as though there had been no trial in the lower court. See Bussey, supra. Our application of the presumption directly contradicts the principle that a trial in the circuit court is not to be influenced or affected by what occurred in the municipal court. See Bussey, supra. The application of the presumption denies Mr. Sundeen’s due process rights by denying him judicial review. Despite these contradictions, we have precedent we our bound to follow.
Accordingly, I concur.