ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CHARLES L. STROUD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-165

December 3, 2003

APPEAL FROM THE POPE

COUNTY CIRCUIT COURT,

[CR2001-528]

HONORABLE DENNIS C.

SUTTERFIELD, CIRCUIT JUDGE

APPEAL DISMISSED

John F. Stroud, Jr., Chief Judge

Appellant, Charles Stroud, was found guilty in the Russellville District Court of the offense of driving while intoxicated - first offense. He appealed this decision to the Pope County Circuit Court, where he filed motions to suppress "all of the evidence gathered as a result of the stop, detention, and subsequent arrest of the Defendant on September 30, 2000, including, but not limited to, all observations by police and statements by the Defendant occurring after the unlawful detention and arrest of the Defendant" as well as the results of the breath test taken by him on that night. These motions were denied, and he purportedly entered a conditional plea of guilty to the offense of driving while intoxicated - first offense pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure. On appeal, appellant argues that he took the breath test based upon misinformation contained within the rights form, and therefore the results should have been suppressed, and that the traffic stop that resulted in his arrest was made without probable cause, and therefore the evidence obtained as a result of that stop should also be suppressed.

In its brief, the State argues that appellant did not properly preserve his right to appeal pursuant to a conditional plea under Rule 24.3(b) of the Arkansas Rules of Criminal Procedure. We agree with the State that the appellant did not properly preserve his right to appeal pursuant to a conditional plea; therefore, the appeal must be dismissed because this court does not have jurisdiction to hear the appeal.

Rule 24.3(b) of the Arkansas Rules of Criminal Procedure provides:

(b) 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.

In the present case, the only reference to appellant's attempted conditional plea of guilty is found in the judgment itself, which provides in its entirety:

On this 9^th day of October, 2002, this cause comes on for hearing, plaintiff appearing by its attorney, Jack Thorp, Deputy Prosecuting Attorney, announcing ready for trial. Defendant appeared in person and by his attorney, Hugh R. Laws. The above named defendant is brought before this Court by the State of Arkansas charged with the offenses of DRIVING WHILE INTOXICATED FIRST OFFENSE and FOLLOWING TOO CLOSE. Whereupon, the defendant changed his plea to guilty to DRIVING WHILE INTOXICATED FIRST OFFENSE conditioned upon the Court's acceptance of his right to appeal pre-trial decisions in this matter, and upon the amended plea, the Court doth order:

1. The Court hereby accepts defendant's plea of guilty conditioned on his right to appeal the Court's pre-trial decision in this matter, and the defendant is found guilty of DRIVING WHILE INTOXICATED FIRST OFFENSE and is sentenced to pay fine and costs of $750.00, to attend an alcohol rehabilitation program, and any recommendations of the alcohol screening officer, to serve one day in jail for credit for one day already served.

2. The defendant is ordered to appear within thirty (30) days of any mandate should the Court's decision be affirmed on appeal, for setting up for payment of the fine and costs.

3. The charge of FOLLOWING TOO CLOSE is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

The judgment was signed by the circuit judge on October 29, 2002, and approved by both appellant's attorney and the prosecuting attorney.

In McMullen v. State, 79 Ark. App. 15, 16-17, 82 S.W.3d 827, ___ (2002), this court held:

The supreme court has interpreted Ark. R. Crim. P. 24.3(b) to require strict compliance with the writing requirement in order for the appellate court to obtain jurisdiction. This includes a requirement that the conditional plea be reserved in writing by the defendant. Absent compliance with the express terms of Rule 24.3(b), this court acquires no jurisdiction to hear an appeal, even when there has been an attempt at trial to enter a conditional plea.

(Citations omitted.) Furthermore, the writing must be contemporaneous with the defendant's reservation of his right to appeal, and there must be an indication that the prosecuting attorney consented to the conditional plea and that the trial court approved the conditional plea. Hill v. State, 81 Ark. App. 178, 100 S.W.3d 84.

In the present case, there is nothing in the record from the appellant reserving in writing his conditional guilty plea. See McMullen v. State, supra. The judgment was not signed by the appellant, and as pointed out by the State, if the judgment is considered to be "the writing," it was not contemporaneous with appellant's attempted reservation of his right to appeal. See Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999).

In Grupa v. State, ___ Ark. App. ___, ___ S.W.3d ___ (November 12, 2003), this court dismissed an appeal on the basis that appellant failed to strictly comply with the requirements of Rule 24.3(b). In that case, the appellant entered conditional pleas of guilty on September 10, 2002, with the approval of the trial judge and the consent of the prosecutor; the order reflecting that agreement was signed by the trial judge on September 16, 2002; and the order was filed on September 20, 2002. In dismissing the appeal, this court held:

Even though there was a writing, specifically reserving the right to appeal the suppression issue, signed by the judge and the attorneys for each side, commemorating the oral entry of guilty pleas reserving this right six days earlier, we glean from the cases on this subject that the writing was not "contemporaneous."

___ Ark. App. at ___, ___ S.W.3d at ___.

Because appellant failed to strictly comply with the requirements of Rule 24.3(b), we must dismiss this appeal for lack of appellate jurisdiction. However, we note that appellant's conviction would have still been affirmed if we had been able to reach the merits of his appeal. Appeal dismissed.

Gladwin and Baker, JJ., agree.