Stephen Ogburn v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

STEPHEN OGBURN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-616

JANUARY 26, 2005

APPEAL FROM THE MILLER COUNTY CIRCUIT COURT

[NO. CR-03-81-1]

HONORABLE JOE EDWARD GRIFFIN, CIRCUIT JUDGE

DISMISSED

Karen R. Baker, Judge

Appellant, Stephen Ogburn, appeals from a conditional plea of guilty for possession of a controlled substance with intent to deliver in Miller County Circuit Court. He was sentenced to ten years' imprisonment in the Arkansas Department of Correction. He argues on appeal that the trial court erred in denying his motion to suppress thirteen "baggies" of a white, powdery substance, methamphetamine. Because we find that appellant's notice of appeal was untimely, we dismiss the appeal.

A warrant was issued and appellant was arrested on November 26, 2002, following the filing of an affidavit by his former spouse alleging that appellant had caused her physical injury. On September 30, 2003, appellant moved to quash the warrant and exclude the evidence seized following his arrest on the basis that the warrant was issued without a finding of probable cause by the district court judge or other neutral magistrate. After a hearing on appellant's motion to quash, the trial court denied appellant's motion to quash and exclude the evidence.

On February 17, 2004, appellant entered a conditional plea of guilty to possession of a controlled substance with intent to deliver, pursuant to Ark. R. Crim. P. 24.3(b). Appellant then filed a notice of appeal on March 4, 2004. The notice of appeal specifically indicated that the appeal was from the order denying his motion to suppress evidence entered on February 6, 2004. The judgment and commitment order was not entered in this case until May 12, 2004.

Rule 24.3(b) (2004) of the Arkansas Rules of Criminal Procedure 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 seized evidence or a custodial statement." In McDonald v. State, 354 Ark. 680, 124 S.W.3d 438 (2003) (per curium), 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, defendant's attorney failed to appeal from the June 4, 2003, judgment and instead attempted to appeal from the November 4, 2002, denial of the motion to suppress. Id. 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. 354 Ark. at 680, 124 S.W.3d at 438-39.

Here, as in McDonald, appellant's notice of appeal (filed March 4, 2004) specifically references that the appeal is from the February 6, 2004 order denying his motion to suppress evidence, rather than the judgment and commitment order. Consequently, appellant's notice of appeal is untimely.

However, we dismiss the appeal without prejudice for appellant to petition the supreme court for permission to file a belated appeal. See Giacona v. State, 39 Ark. App. 101, 839 S.W.2d 228 (1992). See also McDonald, supra; Rule of App. Crim Proc. 2(e). Accordingly, we dismiss.

Pittman, C.J., and Glover, J., agree.