Tabor v. State

Joel Keith TABOR v. STATE of Arkansas

CR 96-400                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 23, 1996


1.   Appeal & error -- conditional plea of guilty -- strict
     compliance with A.R.Cr.P. Rule 24.3(b) required to convey
     appellate jurisdiction. -- The law is well settled that a
     defendant ordinarily does not have a right to appeal a guilty
     plea except as provided in A.R.Cr.P. Rule 24.3(b); appeals
     from guilty pleas are typically dismissed for lack of
     jurisdiction; Rule 24.3(b) provides the only procedure for an
     appeal from a guilty plea; but 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;
     accordingly, the supreme court requires strict compliance with
     Rule 24.3(b) to convey appellate jurisdiction.

2.   Appeal & error -- conditional plea of guilty -- Rule 24.3(b)
     not strictly followed -- court of appeals obtained no
     jurisdiction -- appeal dismissed. -- Where there was no
     contemporaneous writing by appellant reserving his right to
     appeal, A.R.Cr.P. Rule 24.3(b) was not strictly followed, and
     the Arkansas Court of Appeals obtained no jurisdiction of the
     matter; without jurisdiction, the court of appeals had no
     authority to remand the case to the trial court to settle the
     record; moreover, the subsequent order by the trial court with
     the attached signed plea statement by appellant entered after
     remand could not breathe life into a moribund appeal where no
     jurisdiction originally vested; the appeal was dismissed for
     appellant's failure to follow the terms of Rule 24.3(b).


     Appeal from Boone Circuit Court, Robert W. McCorkindale, II,
Judge; On Petition for Review from the Arkansas Court of Appeals;
appeal dismissed.
     Donald J. Adams, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

                    Robert L. Brown, Justice.
     On April 22, 1996, this court granted the State's petition to
review the decision of the Arkansas Court of Appeals to remand this
case to settle the record.  The question before this court is
whether a failure to comply strictly with the terms of Arkansas
Rule of Criminal Procedure 24.3(b) regarding conditional pleas of
guilty divests the appellate courts of jurisdiction.  We conclude
that it does, and we dismiss this matter for lack of appellate
jurisdiction.
     In an information filed on April 14, 1994, the State charged
appellant Joel Keith Tabor with criminal conspiracy to deliver a
controlled substance (marijuana), criminal conspiracy to deliver a
controlled substance (cocaine), and delivery of a controlled
substance (cocaine).  Tabor filed a motion to suppress his
statements given to police officers because at the time he was
allegedly acting under the direction and immunity of the FBI and
the Harrison Police Department.  After a hearing on the issue, the
trial court denied the motion.
     On May 12, 1995, Tabor pled guilty to the offenses charged,
and the trial court sentenced him to serve a term of six years.  On
June 1, 1995, Tabor filed a notice of appeal.  The State moved to
dismiss the appeal from the guilty plea because Tabor did not
reserve his right to appeal under Ark. R. Crim. P. 24.3(b) by
filing a signed statement to that effect.  The Court of Appeals
granted that motion.  Tabor thereafter moved to reinstate the
appeal on grounds that he had preserved his right to appeal the
suppression issue even though he failed to file the appropriate
plea statement.  Counsel for Tabor and the Deputy Attorney General
stipulated to the existence of the plea statement, and the
prosecuting attorney filed an affidavit in which he stated that
Tabor's plea was conditioned on his right to appeal any adverse
ruling that might be entered on his motion to suppress evidence. 
The prosecutor further averred that a plea statement, though
unsigned and not filed, was used when Tabor pled guilty and that
the trial court reporter made a record of this.
     The Court of Appeals, in an opinion joined by three judges
with two others concurring and four dissenting, remanded the case
to the trial court to settle the record concerning the conditional
plea of guilty.  The Court of Appeals further stated:
     The trial court and parties are further directed to
     ensure that all material portions of the record that
     pertain to the purported conditional plea of guilty be
     included in the record, including all orders by the trial
     court pertaining to appellant's claim that he entered a
     conditional plea of guilty.  Upon compliance with these
     directives, the motion for reinstatement of the appeal
     may be renewed.
The concurring judges agreed that the record should be settled but
added that their preference was simply to reinstate the appeal
outright because counsel for Tabor and the Attorney General had
stipulated to the existence of the conditional plea agreement.  The
dissenting judges argued that the majority's course of action was
procedurally barred in that Rule 24.3(b) required that the right of
review be reserved in writing.  In the view of the dissenting
judges, the fact that the State and Tabor stipulated to the
existence of the plea agreement does not satisfy the requirements
of Rule 24.3(b) or confer jurisdiction on the appellate courts.
     On March 13, 1996, the Court of Appeals's decision was handed
down.  On April 22, 1996, this court granted the State's petition
for review.  On May 9, 1996, the Clerk of the Supreme Court
received a letter from the Boone County Circuit Clerk with an order
from the trial court filed on April 18, 1996.  The trial court's
order states in part:
                               3.
          That, pursuant to an agreement between the defense
     and the State, upon the denial of the defense motion, the
     Defendant pled guilty to all three counts directly to the
     Court without any agreement on sentencing, but reserving
     the right to appeal the Court's adverse ruling on the
     motion to suppress.
                               4.
          That on April 17, 1995, the State wrote up a plea
     statement reflecting the agreement of the parties,
     including the reservation of the right to appeal in
     writing; [h]owever because sentencing was postponed no
     order was entered that day and the plea statement was
     neither signed nor filed of record.
                               5.
          That on May 12, 1995, the Court formally sentenced
     the Defendant to twelve years in the Department of
     Corrections, suspending six years, with six years to be
     served concurrently on each count; [s]entencing was
     entered upon the standard forms which contain no written
     reservation of the right appeal.
                              ....
                               7.
          That the plea statement prepared but not signed or
     filed should be signed and filed to supplement the record
     and document the written agreement of the parties on
     April 17, 1995.
A copy of a plea statement signed by Tabor and dated April 17,
1996, was attached to the April 18, 1996 order and, according to
the trial court's order, made a part of the record in this appeal.
     The State contends in its appeal that no appellate court has
jurisdiction over the matter because the requirements of Rule
24.3(b) were not followed.  The State further argues that the
remand by the Court of Appeals to settle the record has no effect
on the jurisdictional issue because there is no provision that
allows a trial court to cure a jurisdictional defect following a
guilty plea after the time for filing the notice of appeal has
expired.  In response, Tabor complains that the issue is one of
fairness and that the denial of his appeal would violate his Sixth
Amendment right to effective assistance of counsel.
     We turn first to Rule 24.3(b) which reads:
          With the approval of the court and the consent of
     the prosecuting attorney, a defendant may enter a
     conditional plea of guilty or nolo contendre
     [contendere], reserving in writing the right, on appeal
     from the judgment, to review an adverse determination of
     a pretrial motion to suppress evidence.  If the defendant
     prevails on appeal, he shall be allowed to withdraw his
     plea.
The law is well settled that a defendant ordinarily does not have
a right to appeal a guilty plea except as provided in Rule 24.3(b). 
See Ark. R. App. P.--Crim. 1;  Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).  Scalco v. City of Russellville, 318 Ark. 65,
883 S.W.2d 813 (1994); Eckl v. State, 312 Ark. 544, 851 S.W.2d 428
(1993).  Appeals from guilty pleas are typically dismissed for lack
of jurisdiction.  Scalco v. City of Russellville, supra.   Rule
24.3(b) provides the only procedure for an appeal from a guilty
plea.  Eckl v. State, supra.  But 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.  Bilderback
v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Scalco v. City of
Russellville, supra; Noble v. State, 314 Ark. 240, 862 S.W.2d 234
(1993).  Accordingly, this court requires strict compliance with
Rule 24.3(b) to convey appellate jurisdiction.  Burress v. State,
321 Ark. 329, 902 S.W.2d 225 (1995).
     Two analogous cases have addressed whether the requirements of
Rule 24.3(b) were met and the effect of noncompliance: Bilderback
v. State, supra, and Burress v. State, supra.  In Bilderback v.
State, this court refused to reach the merits of Bilderback's
suppression issue because the conditional guilty plea was not
reserved in writing by the defendant despite the fact that both the
trial court and prosecutor had proceeded as if the plea were
conditional.  Similarly, in Burress v. State, the trial court made
reference to "a document entitled Guilty Plea Statement,"  but that
document was not contained in the record on appeal.  This court, as
a result, dismissed the appeal for want of jurisdiction.
     In the case now before us, there was no contemporaneous
writing by Tabor reserving his right to appeal.  Hence, Rule
24.3(b) was not strictly followed, and the Court of Appeals
obtained no jurisdiction of the matter.  Without jurisdiction, the
Court of Appeals had no authority to remand the case to the trial
court to settle the record.  Moreover, the subsequent order by the
trial court with the attached signed plea statement by Tabor
entered after remand cannot breathe life into a moribund appeal
where no jurisdiction originally vested.  The appeal must be
dismissed for Tabor's failure to follow the terms of Rule 24.3(b).
     Appeal dismissed.