Ray v. State

Charles Edward RAY v. STATE of Arkansas

CR 96-473                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 21, 1997


1.   Criminal procedure -- Ark. R. Crim. P. 24.3 (b) provides for
     appeal from conviction based on guilty plea. -- Other than an
     appeal from a sentence imposed by a jury after a plea of
     guilty, a conditional plea of guilty, as found in Ark. R.
     Crim. P. 24.3(b), provides the only procedure for an appeal
     from a conviction based on a guilty plea.

2.   Criminal procedure -- appellant's argument that plea was
     conditional not supported by record -- supreme court without
     jurisdiction to hear appeal. -- Where appellant's argument
     that his plea was a "conditional" plea was not supported by
     the record, the appeal was dismissed; absent compliance with
     the express terms of Rule 24.3(b), the supreme court acquires
     no jurisdiction to hear an appeal, even when there has been an
     attempt at trial to enter a conditional plea.


     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
dismissed.
     Andrew L.Clark, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     David Newbern, Justice.
     Charles Edward Ray pleaded guilty to, and was convicted of,
simultaneous possession of drugs and a firearm, Ark. Code Ann.  5-
74-106 (Repl. 1993), possession of drug paraphernalia with the
intent to use it,  5-64-403 (Repl. 1993), and possession of a
controlled substance,  5-64-401 (Repl. 1993).  He has appealed the
conviction of violating  5-74-106, a part of "The Arkansas
Criminal Gang Organization or Enterprise Act," for simultaneous
possession of drugs and a firearm.  He contends that his activities
did not fall within the purview of the statute and that the law is
unconstitutionally vague.  As Mr. Ray has not satisfied the
conditions for the limited exception we make to our rule
disallowing appeals from guilty-plea proceedings, we must dismiss
the appeal.
     Arkansas R. App. P.--Crim. 1(a) provides, in part, "Except as
provided by ARCrP 24.3(b) there shall be no appeal from a plea of
guilty or nolo contendere."  Arkansas R. Crim. P. 24.3 provides, in
relevant part:

          (b) 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 evidence. If the defendant prevails on
     appeal, he shall be allowed to withdraw his plea.  

Other than an appeal from a sentence imposed by a jury after a plea
of guilty, see Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994),
Rule 24.3(b) provides the only procedure for an appeal from a
conviction based on a guilty plea.  Payne v. State, 327 Ark. 25,
937 S.W.2d 160 (1997);  Tabor v. State, 326 Ark. 51, 930 S.W.2d 319
(1996).
     In his statement of the case, Mr. Ray writes that his plea was
a "conditional" plea.  We find nothing in the record to support
that statement.  The plea agreement signed by Mr. Ray, his counsel,
and the deputy prosecutor simply states Mr. Ray's decision to plead
guilty, his acknowledgment of the rights he is waiving, the
offenses to which the plea applies, and the agreed recommendation
of punishment of ten years' imprisonment.
     Absent compliance with the express terms of Rule 24.3(b), we
acquire no jurisdiction to hear an appeal, even when there has been
an attempt at trial to enter a conditional plea.  Tabor v. State,
supra;  Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995).
     Appeal dismissed.