Amanda Baty v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-295

DIVISION IV

AMANDA BATY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-295

November 30, 2005

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[NO. CR-2003-1464]

HON. MICHAEL A. MAGGIO,

JUDGE

APPEAL DISMISSED

John Mauzy Pittman, Chief Judge

The appellant was charged with possession of drug paraphernalia. After denial of her pretrial motion to suppress evidence obtained in the search of her residence, she entered a plea of nolo contendere. On September 21, 2004, the day set for trial, appellant's attorney announced that the prosecution had agreed to permit appellant to enter a conditional plea of guilty. After appellant testified concerning her understanding of and agreement to the plea agreement, including her understanding that she would be permitted to appeal from the denial of her pretrial motion to suppress, the trial judge announced that he accepted her plea. On appeal, appellant contends that the trial court erred in failing to suppress evidence obtained in the search of her residence because the search was conducted without warrant or consent. The contemporaneously-filed plea statement, however, made no mention of her reservation of a right to appeal from the denial of the motion to suppress evidence, and we therefore must dismiss the appeal for lack of jurisdiction.

As a general rule, a defendant waives the right to appeal when he or she pleads guilty or nolo contendere. Ark. Code Ann. ยง 16-91-101(c) (1987); Ark. R. App. P. - Crim. 1(a); Berry v. City of Fayetteville, 354 Ark. 470, 125 S.W.3d 171 (2003). One exception to this rule is found in Arkansas Rule of Criminal Procedure 24.3(b), which provides 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. If the defendant prevails on appeal, the defendant shall be allowed to withdraw the conditional plea.

If the express terms of Rule 24.3(b) are not complied with, the appellate court acquires no jurisdiction to hear an appeal from a conditional plea. Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996). Strict compliance with Rule 24.3(b), including the requirement of "reserving in writing" the right of review, is required to convey appellate jurisdiction. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995). This is so even where, as here, the trial court and the parties have proceeded as if the plea were conditional. Id. Here, there is in the transcript before us no writing reserving the right to appeal the denial of appellant's suppression motion. Because the express terms of Rule 24.3(b) were not complied with, we have no jurisdiction to hear this appeal.

Appeal dismissed.

Hart and Gladwin, JJ., agree.