ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION IV

RICHARD GAYLORD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1370

September 3, 2003

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT

[NO. G-CR-G2002-02D]

HON. J. MICHAEL FITZHUGH,

JUDGE

REMANDED TO SETTLE RECORD

John Mauzy Pittman, Judge

The appellant in this criminal case entered a negotiated plea of guilty to possession of methamphetamine and possession of drug paraphernalia. An order of conviction was entered, signed by the trial judge and by the appellant, reflecting that appellant's guilty plea was conditioned on his right to appeal the denial of his motion to suppress evidence found in the search of his home. The prosecutor did not sign the order. There is no affirmative indication in the record to show that the prosecutor assented to the conditional plea. The conditional plea was discussed in open court, and was expressly accepted by the trial judge and the appellant. The record does not reflect whether or not the prosecutor was in the courtroom when the conditional plea was discussed.

On appeal, appellant argues that the trial court erred in denying his motion to suppress evidence obtained in the search of his home. We cannot address this issue given the present state of the record because we cannot determine whether our jurisdiction is proper. The problem we face was discussed by Judge Neal in McCormick v. State, 74 Ark. App. 349, 48 S.W.3d 549 (2001):

Rule 24.3(b) of the Arkansas Rules of Criminal Procedure reads 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 contendre [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.

When Rule 24.3(b) is not strictly complied with, this court lacks jurisdiction to hear an appeal, even when the record reveals that the trial court attempted to enter a conditional plea. See Ray v. State, 328 Ark. 176, 178, 941 S.W.2d 427, 428 (1997). It has previously been held that Rule 24.3(b) requires a contemporaneous writing by the defendant, as well as proof that the conditional plea was approved by the trial court with the consent of the prosecuting attorney. See Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999).

Rule 24.3 does not specify the manner in which the State is to manifest its consent to the conditional guilty plea, so being present, contesting the objectionable aspects of the disposition of the case, and allowing the plea to be entered as a "negotiated plea of guilty" should be sufficient to preserve the suppression issue for appeal. Obviously, for a "negotiated" plea to exist it requires negotiation, and the only other interested party is the State. In contract law, manifestation of assent may be made by spoken words or by conduct. See Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995); see also ERC Mortgage Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990) (citing Restatement (Second) of Contracts § 19 (1981)). Here assent was manifested by the prosecutor showing up in court and acquiescing to the entry of the negotiated plea agreement.

McCormick v. State, supra, 74 Ark. App. at 354-55, 48 S.W.3d at 552.

Thus, Rule 24.3(b) must be strictly complied with in order for us to acquire jurisdiction to hear the appeal, and compliance with Rule 24.3 requires a showing that the prosecuting attorney consented to the conditional plea. In the present case, there is a three-page plea statement in the record beginning at page 44, but the prosecuting attorney did not sign it. Furthermore, although the prosecuting attorney's presence in court and silent acquiescence to entry of a conditional plea is a sufficient manifestation of consent under McCormick, the record in the present case contains no transcript whatsoever of the proceedings that occurred on September 5, 2002, when the conditional plea was requested by appellant and accepted by the trial judge. Nor does the record state whether the prosecuting attorney was present in court at the sentencing hearing of September 18, 2002, where the events of September 5 were recounted and reconfirmed.

The failure to include a transcript of the September 5 hearing or to indicate who was present at the September 18 hearing prevents us from determining whether our jurisdiction is proper, and we therefore remand with directions for the trial court to settle the record regarding what occurred and who was present at the hearings of September 5 and 18, 2002, and to do so within fourteen days of the date of this opinion. See Ark. R. App. P. --Civ. 6(d) and (e); see also Ark. R. App. P. --Crim. 4(a).

Hart and Robbins, JJ., agree.