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2014 Ark. App. 200
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-13-748
Opinion Delivered March 19, 2014
TIMOTHY J. DEWITT APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
FIRST DIVISION
V. [NO. 60CR-11-2190]
STATE OF ARKANSAS HONORABLE LEON JOHNSON,
APPELLEE JUDGE
REBRIEFING ORDERED
WAYMOND M. BROWN, Judge
Appellant Timothy Dewitt appeals from his conditional plea of guilty to the charges
of possession of a controlled substance with intent to deliver, possession of a controlled
substance, possession of drug paraphernalia, and misdemeanor possession of a controlled
substance. He was sentenced as a small habitual offender to an aggregate term of sixteen years’
imprisonment with an additional five years’ suspended imposition of sentence. He was also
sentenced to one year in county jail on the misdemeanor possession charge. Dewitt argues
that the trial court erred in denying his motion to suppress evidence. We order rebriefing
because Dewitt’s abstract and addendum do not comply with Rule 4-2 of the Arkansas
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Supreme Court Rules1 as they do not provide the information essential for this court to
confirm its jurisdiction.
When a defendant pleads guilty to a charge, he or she waives the right to appeal that
conviction.2 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.3
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.4 This is so even when there has
been an attempt to enter a conditional plea below.5 In addition, the writing must be
contemporaneous with the defendant reserving his or her right to appeal.6 We also look for
an indication that the conditional plea was entered with the approval of the trial court and the
consent of the prosecuting attorney.7
1
(2013).
2
Hill v. State, 81 Ark. App. 178,
100 S.W.3d 84 (2003).
3
Ark. R. Crim. P. 24.3(b) (2013).
4
Hill, supra.
5
Id.
6
Id.
7
Id.
2
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Dewitt’s addendum contains a form entitled “Acknowledgment of Rights” in which
Dewitt acknowledged his rights and voluntarily pleaded guilty. The form was signed by both
Dewitt and his attorney on February 21, 2013. There is also a form entitled “Conditional Plea
Statement” that is signed by Dewitt, his attorney, and the prosecuting attorney. This form was
also signed on February 21, 2013.8 These two forms satisfy the requirements that the
prosecuting attorney consent to the conditional plea and that there be a contemporaneous
writing by a defendant reserving his right to appeal. The next document in the addendum is
the sentencing order, which makes no mention of the conditional plea. It gives no indication
that the trial court approved the conditional plea.
The trial court can accept a conditional plea in open court.9 However, appellant
abstracts only the beginning of the conditional-plea hearing, leaving this court without a
foundation on which to find jurisdiction. Therefore, we order rebriefing and direct appellant
to include all material information necessary for us to confirm our jurisdiction.10 The
substituted abstract, brief, and addendum is due fifteen days from the date of this opinion.11
Rebriefing ordered.
8
We note that the conditional-plea form is taken from Rule 24.3 but fails to include
the approval and signature of the judge. If the entire form had been used, rebriefing
would have been unnecessary. See Kinard v. State, 2012 Ark. App. 543.
9
Kinard, supra (citing Green v. State, 334 Ark. 484,
978 S.W.2d 300 (1998); Gonder
v. State,
95 Ark. App. 144,
234 S.W.3d 887 (2006)).
10
Information is material if it is essential for the appellate court to confirm its
jurisdiction, to understand the case, and to decide the issues on appeal. Ark. Sup. Ct. R. 4-
2(a)(5) (2013).
11
Ark. Sup. Ct. R. 4-2(b)(3) (2013).
3
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HARRISON and HIXSON, JJ., agree.
William R. Simpson, Jr., Public Defender, and Lou Marczuk, Deputy Public Defender,
by: Margaret Egan, Deputy Public Defender, for appellant.
Dustin McDaniel, Att’y Gen., by: Laura Shue, Ass’t Att’y Gen., for appellee.
4
