The defendant was convicted in the municipal court of two counts of indecent exposure. On appeal to the circuit court, the circuit judge remanded the case to the municipal court, effectively dismissing the appeal. The case was remanded because of the failure of defendant’s counsel to satisfactorily comply with the circuit court’s local rule requiring jury instructions to be provided to the court several days in advance of the trial. On appeal to this court the defendant contends the court erred in dismissing his appeal without a trial. He is right; the decision is reversed and the case remanded to the circuit court.
We very recently rendered an opinion concerning the same local rule. See Weaver v. State, 296 Ark. 152, 752 S.W.2d 750 (1988). Therefore, we will not recite the rule again here.
The appellant gave timely notice of appeal from his conviction in municipal court. In accordance with the circuit court’s local rule, the state filed its proposed jury instructions and the appellant filed some proposed instructions. However, the court, on its own motion, remanded the case to the municipal court because the defendant had failed to provide what the court considered adequate instructions. There was no notice or prior hearing concerning the order of remand. The circuit court entered a written order the following day. Nothing in the record indicates either attorney was present when the order was entered.
When a case is appealed to the circuit court it is to be tried de novo, i.e., as though there had been no trial in the lower court. Ark. Code Ann. § 16-96-507 (1987); Weaver v. State, supra; Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988); Killion v. City of Waldron, 260 Ark. 560, 542 S.W.2d 744 (1976); and Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975). The state concedes that the appellant has a right to a jury trial in the circuit court under the Arkansas Constitution, Art. 2, § 7, and Ark. Code Ann. § § 16-89-107 (b)(1) (1987) and 16-96-111(a) (1987). See Johnston v. City of Pine Bluff, supra. The state also concedes that a defendant has a right to a jury trial under the United States Constitution when he is charged with a “serious offense.” Baldwin v. New York, 399 U.S. 66 (1970).
The state’s chief contention is that the appellant did not argue the matter before the trial court and, accordingly, we should not consider this argument for the first time on appeal. The state relies on Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988); and Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Additionally, the state argues that we consider an argument for the first time on appeal only if the trial court was acting wholly without jurisdiction; further, that, while the trial court in this case may have been in error, the court did not act wholly without jurisdiction. It is true that Allen and Wicks stand for the proposition that an argument cannot be presented for the first time on appeal when it could have been presented at the trial level. However, there was no opportunity to present the issue of remand to the trial court because the trial court acted sua sponte, thereby preventing presentation of arguments by either side. Nevertheless, the trial court considered the issue when he remanded the case.
The trial court dismissed the defendant’s appeal on its own motion. As stated in Weaver, local rules cannot contravene a statute or be unreasonable. As the local rule was applied in this case, it was unreasonable and deprived the defendant of his right to a trial by jury.
Although a party may petition the trial court to reconsider a decision, appeal is the usual procedure. The defendant did not have an opportunity to present argument to the trial court on the matter of his right to trial de novo in the circuit court because the trial court remanded the case to the municipal court sua sponte, without notice or opportunity for a hearing. See Weaver, supra.
Under the circumstances the action taken by the trial judge was unreasonable and in effect denied the defendant his statutory right to a jury trial in the circuit court on appeal from his criminal conviction in a municipal court.
Reversed and remanded.
Dudley, Hays, and Glaze, JJ., dissent.