Southern v. State , 2013 Ark. App. 623 ( 2013 )

Cite as 2013 Ark. App. 623
ARKANSAS COURT OF APPEALS
DIVISION IV
No.CR-13-484
Opinion Delivered October 30, 2013
CLARENCE DAVID SOUTHERN APPEAL FROM THE MISSISSIPPI
APPELLANT COUNTY CIRCUIT COURT,
CHICKASAWBA DISTRICT
V. [NO. CR-12-167]
STATE OF ARKANSAS HONORABLE BARBARA HALSEY,
APPELLEE JUDGE
DISMISSED
WAYMOND M. BROWN, Judge
Appellant Clarence Southern was convicted on a purported conditional guilty plea of
driving while intoxicated (DWI), first offense, and no proof of insurance. He received jail
credit for one day and was assessed fines and fees in the amount of $770. Southern argues that
the trial court erred by denying his motion to suppress because the arresting officer did not
have probable cause to stop his vehicle. Because Southern’s purported conditional guilty plea
did not conform with Arkansas Rule of Criminal Procedure 24.3(b),1 we dismiss the appeal
for lack of jurisdiction.
Southern filed a motion to suppress on December 3, 2012. The trial court held a
suppression hearing on December 12, 2012. Trooper Brandon Bennett of the Arkansas State
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(2012).
Cite as 2013 Ark. App. 623
Police testified that he came into contact with Southern the night of February 4, 2012.
Bennett stated that Southern acted suspiciously when the two of them were pulling out of
separate gas stations on U.S. Highway 61. According to Bennett, Southern made eye contact
with him and backed up, which caused Bennett to believe that Southern was trying to avoid
him. Bennett said that he backed up and waited for Southern to pull out. Bennett then
followed Southern south on Highway 61. While following Southern, Bennett stated that he
noticed Southern “swerve within his lane a little bit. He was just moving back and forth
slightly.” Bennett said that he saw Southern fade onto the yellow line just before Highway
312. Bennett testified that he initiated a stop on Southern for failing to maintain his lane and
crossing the centerline.
On cross-examination, Bennett stated that it was dark and that he really could not see
if Southern was making eye contact with him or not. He said that Southern started pulling
out of the Dodge Store, and when Bennett began pulling out, Southern stopped and backed
up to allow Bennett to go in front of him. Bennett testified that there was nothing illegal
about Southern’s actions at that time to justify a traffic stop. He said that he witnessed
Southern swerve within his lane, which was also not a traffic violation. Bennett said that he
stopped Southern because Southern was driving on top of the centerline.
The trial court heard closing arguments from both sides. It denied Southern’s
suppression motion from the bench. On February 20, 2013, approximately two months after
the suppression hearing, Southern entered what he asserts to be a conditional plea of guilty
to DWI and no proof of insurance.
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Cite as 2013 Ark. App. 623
We note that the State does not argue that Southern’s attempted conditional guilty plea
fails to comply with the requirements of Rule 24.3(b). However, whether a defendant has
complied with Rule 24.3(b) is a jurisdictional question that this court will raise sua sponte.2
When a defendant pleads guilty to a charge, he or she waives the right to appeal that
conviction.3 For relevant purposes before us, only a conditional plea pursuant to Rule 24.3(b)
enables a defendant to retain the right to appeal an adverse suppression ruling.4
Rule 24.3(b) states:
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, (i) to review an adverse determination
of a pretrial motion to suppress seized evidence or a custodial statement.
Our supreme court has interpreted Rule 24.3(b) to require strict compliance with the
requirement that the right to appeal be reserved in writing.5 This is so even when there has
been an attempt to enter a conditional plea below.6 In addition, the writing must be
contemporaneous with the defendant reserving his or her right to appeal.7 We also look for
2
See Hill v. State, 81 Ark. App. 178, 100 S.W.3d 84 (2003).
3
Id.
4
Id.
5
Hill, supra.
6
Id.
7
Id.
3
Cite as 2013 Ark. App. 623
an indication that the conditional plea was entered with the approval of the trial court and the
consent of the prosecuting attorney.8
The form signed in the present case was a guilty-plea statement with the handwritten
word “Conditional” appearing above it.9 The document contains the signatures of Southern
and his attorney, with a handwritten date of February 20, 2013. The court’s file-stamp also
reflects the same date. There is no reservation in writing of Southern’s right, on appeal from
the judgment, to review the trial court’s denial of his motion to suppress. Additionally, there
is no indication on the plea agreement that the trial court approved a conditional plea by
Southern or that the prosecuting attorney consented to the plea. We do note that in the
sentence and plea recommendation, the prosecutor added language that this was in fact a
conditional plea, with a forthcoming appeal of the court’s denial of Southern’s motion to
suppress. The recommendation was signed by Southern, his attorney, and the prosecuting
attorney; however, it also failed to include the signature of the trial court judge. Southern
failed to strictly comply with Rule 24.3(b). Therefore, we lack jurisdiction and dismiss the
appeal.10
8
Id.
9
Rule 24.3 contains a form to be used when a defendant wishes to enter a conditional
plea of guilty. The form sets out the specific language needed to satisfy the requirements of
Rule 24.3(b). In addition to providing signature lines for the defendant and the defense
attorney, the form contains signature lines for the prosecuting attorney and for the court
approval.
10
There was no written order denying Southern’s motion to suppress contained in the
record. Additionally, there is no transcript of the plea hearing. We do not order
supplementation of the record and rebriefing because it is clear from the documents contained
in the record and addendum that we lack jurisdiction to address the issue in this appeal.
4
Cite as 2013 Ark. App. 623
Dismissed.
WALMSLEY and HIXSON, JJ., agree.
James W. Harris, for appellant.
Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
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