NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE JOSEPHINE LINKER HART

DIVISION I

JOHNNY RAY CALKIN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-158

December 5, 2001

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[NO. CR-2000-120, CR-2000-128]

HONORABLE ROBERT EDWARDS,

CIRCUIT JUDGE

REBRIEFING ORDERED

Appellant, Johnny Ray Calkin, entered conditional pleas of guilty to one count of manufacturing methamphetamine, two counts of possession of methamphetamine with the intent to deliver, and one count of simultaneous possession of drugs and firearms, for which the trial court sentenced him to a total of 120 months in the Arkansas Department of Correction. He asserts that pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, he reserved his right to appeal from the trial court's denial of his motion to suppress. However, because he failed to prepare an abstract showing that he complied with Rule 24.3(b), we order rebriefing.

Rule 24.3(b) provides as follows:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

As argued by the State, Calkin failed to show in his abstract that either the prosecutor or the court consented to his entering of a conditional plea of guilty. Only when there is strict compliance with Rule 24.3(b) is our court vested with jurisdiction to hear an appeal from a conditional plea of guilty. See Simmons v. State, 72 Ark. App. 238, 242-43, 34 S.W.3d 768, 771 (2000).

While Calkin provided a supplemental abstract purporting to show compliance with Rule 24.3(b), we cannot consider it, as "[i]t is not permissible to supply a deficiency in the abstract of the record in a reply brief." Harris v. State, 315 Ark. 398, 399 n.1, 868 S.W.2d 58, 59 n.1 (1993). Rather, only when permitted by this court upon motion may a reply brief contain a supplemental abstract. Ark. Sup. Ct. R. 4-1(b). No such motion was filed in this case. Further, subject to our discretion, "[i]f a case has not yet been submitted to the court for decision, an appellant may file a motion to supplement the abstract and file a substituted brief...." Ark. Sup. Ct. R. 4-2(b)(2). Again, no such motion was filed here.

However, as we are authorized to do under Arkansas Supreme Court Rule 4-2(b)(3), we order rebriefing so Calkin's attorney, at his own expense, may revise the brief to conform to Arkansas Supreme Court Rule 4-2(a)(6) by preparing an abstract showing compliance with Rule 24.3(b). We remind counsel that "[m]ere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk." Ark. Sup. Ct. R. 4-2(b)(3).

Rebriefing is ordered. Appellant has thirty days from the date of this order in which to file a substituted brief.

Vaught and Baker, JJ., agree.