Kenyon Lekiel Glenn v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

KENYON LEKIEL GLENN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-903

March 16, 2005

APPEAL FROM THE DESHA COUNTY CIRCUIT COURT

[NO. CR02-174-4]

HON. DON EDWARD GLOVER,

JUDGE

DISMISSED WITHOUT PREJUDICE

Robert J. Gladwin, Judge

Appellant Kenyon Glenn appeals from a conditional plea of guilty for possession of cocaine with intent to deliver, a Class Y felony, for which he was sentenced to ten years' imprisonment in the Arkansas Department of Correction. He argues that the testimony at the hearing on his motion to suppress a plastic bag containing narcotics was insufficient to establish probable cause for the original traffic stop. Because appellant's notice of appeal failed to address the April 30, 2003 judgment and commitment order that followed his conditional plea, we dismiss the appeal.

On July 20, 2002, appellant had leased a U-Haul trailer in North Little Rock, Arkansas, to move his vehicle to Miami, Florida. He proceeded south and stopped to obtain fuel in Dumas, Arkansas, where a traffic stop was made by Officer Struthers of the Dumas Police Department. Additional police were called in, including a canine officer, Officer Donaldson, and a search of the towing vehicle led to the discovery of drugs and a firearm.

On March 12, 2003, appellant filed a motion to suppress all evidence obtained from the traffic stop, arguing that the stop and subsequent search were made without probable cause and in violation of the United States Constitution, Arkansas Constitution, and Arkansas Rules of Criminal Procedure. A hearing was held on appellant's motion to suppress on April 2, 2003, at which time the trial judge announced his ruling from the bench that the motion should be denied, although no order was filed until July 30, 2003. Appellant entered a conditional plea of guilty on April 14, 2003; a judgment and commitment order was filed on April 14, 2003; and an amended judgment and commitment order was filed on April 30, 2003. Appellant filed a notice of appeal on May 12, 2003, specifically appealing the trial court's denial of his motion to suppress. He was required to file his brief by September 22, 2003, but failed to do so; and the State's October 21, 2003 motion to dismiss the appeal was granted on November 12, 2003. Appellant filed a motion to reinstate the appeal on February 27, 2004, and the motion was granted on March 10, 2004. After four extensions were granted by this court, appellant filed his brief on August 8, 2004.

Rule 24.3(b) of the Arkansas Rules of Criminal Procedure requires a defendant appealing from a conditional plea to appeal from the judgment, not the plea or order denying his motion to suppress. See McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004); McDonald v. State, 354 Ark. 680, 124 S.W.3d 438 (2003). In the first McDonald case, our supreme court denied counsel's motion for rule on the clerk and held that subsection (b) of this rule requires an appeal from the judgment, not the order denying the motion to suppress. In McDonald, appellant's counsel failed to appeal from the June 4, 2003 judgment, instead attempting to appeal from the November 4, 2002 denial of the motion to suppress. Thus, the May 7, 2003 appeal was untimely. Id. The court went further to say that had the notice of appeal listed the judgment and commitment order rather than the denial of the motion to suppress, it would have been timely even though filed early. McDonald, supra, 354 Ark. at 680, 124 S.W.3d at 438-39. The facts in this case are distinguishable from McDonald, in that appellant's notice of appeal was filed May 12, 2003, which would have been timely had it correctly referenced the April 30, 2003 amended judgment and commitment order as required by Ark. R. Crim. P. 24.3(b). Because the notice of appeal specifically states that the appeal is from the order denying his motion to suppress evidence in contradiction to the requirements of Rule 24.3(b), we dismiss the appeal.

Dismissed without prejudice.

Pittman, C.J., and Vaught, J., agree.