ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

MARK MAUGHN

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-1356

SEPTEMBER 17, 2003

APPEAL FROM GARLAND COUNTY CIRCUIT COURT

[NO. CR02-118-I]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

APPEAL DISMISSED

Andree Layton Roaf, Judge

Appellant Mark Maughn conditionally pled nolo contendere to driving while intoxicated ("DWI"), first offense, and was sentenced to pay a $300 fine, plus court costs. Maughn was also sentenced to one year in jail, suspended on the condition that he complete eight hours of community service. On appeal, Maughn argues that the trial court erred when it denied his motion in limine and ruled that the police-administered blood-alcohol test results were admissible. We dismiss the appeal because Maughn's conditional guilty plea failed to comply with the requirements of Ark. R. Crim. P. 24.3(b) (2003).

On October 6, 2001, Maughn was arrested and charged with DWI, first offense, andfailure to yield. He was convicted of both charges in the district court of Garland County and then appealed his convictions to circuit court. Prior to the trial, Maughn filed a motion in limine seeking to exclude the .10 results of his blood-alcohol test on the grounds that the arresting officer failed to advise him that if he chose to have an additional test performed at his expense, and he was found not guilty, he would be reimbursed for the cost of the additional test. As Maughn argued, Arkansas Code Annotated section 5-65-204(e)(2) (Supp. 2001) was amended in 2001 to add the requirement that the right to an additional test be given in writing and that the additional test, if taken, will be paid for by the arresting law enforcement agency if the defendant is found not guilty. Section 5-65-204(e)(3) provides that the failure of a law enforcement officer to advise a person of this right and to assist the person to obtain a test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.

The rights form used by the arresting officer in this case stated that a person who submits to a police-administered blood-alcohol test has the right to an additional test at his expense, but the form did not state that the person would be reimbursed for the cost of the test if he were found not guilty. Deputy Sheriff Joey Pate, the arresting officer, also testified that he read the rights form to Maughn, but that he did not advise him that if he had an additional test performed, the state would reimburse him for the cost if he were acquitted. Finding that there was substantial compliance with the statute in this case, the trial court denied Maughn's motion in limine. Maughn then stated that he wished to enter a conditional plea of nolo contendere to the charge of DWI, reserving his right to appeal the trial court's denial of his motion in limine. The trial court accepted Maughn's plea and ordered that the failure to yield charge be remanded to the district court for imposition of sentence.

On appeal, Maughn argues that the trial court erred in denying his motion in limine and ruling that the blood-test results were admissible. The State contends that this court lacks jurisdiction to hear Maughn's appeal because Ark. R. Crim. P. 24.3(b) only pertains to evidence illegally obtained and not to evidence wrongfully admitted.

Rule 24.3(b) states that "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." Appeals from guilty pleas are typically dismissed for lack of jurisdiction, and Rule 24.3(b) provides the only procedure for an appeal from a guilty plea. Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997). The supreme court requires strict compliance with Rule 24.3(b) to convey appellate jurisdiction, and if the express terms of the rule are not complied with, the appellate court acquires no jurisdiction to hear an appeal from a conditional plea. Id.; McMullen v. State, 79 Ark. App. 15, 82 S.W.3d 827 (2002).

In Payne v. State, supra, the appellant entered a conditional plea of guilty to DWI, fourth offense, and attempted to appeal the trial court's ruling admitting his prior DWI convictions into evidence. The supreme court dismissed the appeal for lack of jurisdiction, finding that Rule 24.3(b) permits review of conditional guilty pleas solely with respect to adverse rulings on motions to suppress illegally obtained evidence and that it does not apply to evidence that is alleged to have been wrongfully admitted. Id.; see also Pickett v. State, 301 Ark. 345, 783 S.W.2d 854 (1990); Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989) (both holding that Rule 24.3(b)does not apply where the issue on appeal concerns the admissibility of evidence not alleged to have been illegally obtained).

In this case, Maughn does not allege that his blood-test results were illegally obtained; rather, he argues that the test results were wrongfully admitted into evidence. Because Rule 24.3(b) does not provide for an appeal following a plea of nolo contendere where the admissibility of evidence is challenged, this appeal must be dismissed.

Although the State does not raise this argument, there is a second issue pertaining to this court's jurisdiction to hear Maughn's appeal under Rule 24.3(b). There is no plea statement or other document in the record in which Maughn reserved in writing his right to appeal the denial of his motion in limine. In the absence of a contemporaneous writing by the defendant reserving his right to an appeal, there is no compliance with Rule 24.3(b), and the appellate court does not obtain jurisdiction. Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996). This is true even where there has been an attempt to enter a conditional plea below, as occurred in this case. Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999). Thus, even if Rule 24.3(b) were applicable to Maughn's appeal from the denial of his motion in limine, Maughn's failure to properly preserve his conditional guilty plea in writing precludes this court from having jurisdiction of the appeal.

Appeal dismissed.

Hart and Crabtree, JJ., agree.