finding that there was a proper conditional plea of guilty, but that appellant had failed on appeal, and that therefore the trial court had no jurisdiction to rule on appellant’s motion to withdraw his guilty plea following his failure on appeal
How later courts described this case
- finding that there was a proper conditional plea of guilty, but that appellant had failed on appeal, and that therefore the trial court had no jurisdiction to rule on appellant’s motion to withdraw his guilty plea following his failure on appeal
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice, dissenting. I would affirm the DWI judgment of conviction entered on November 30, 1993, because the assistance afforded Bert Scalco by Officer Jeff Myers in obtaining the blood test was entirely reasonable. Williford v. State, 284 Ark. 449 , 683 S.W.2d 228 (1985).
The majority, though, decides this case on a procedural ground that was not briefed by the parties. The procedural facts are these. Scalco sought to appeal a denial of his motion to suppress a blood/alcohol breathalyzer test. He entered a conditional plea of guilty with the proviso that if he prevailed on appeal, his plea would be withdrawn. The Court of Appeals declined the appeal on the basis that the denial of the motion to suppress was not an appealable order and, thus, the appellate court lacked jurisdiction. The mandate then came down dismissing the appeal. 1 Scalco moved to withdraw his guilty plea, and the court granted the motion. The court also ordered the judgment of conviction and the guilty plea to be set aside. A trial transpired, and Scalco was convicted.
The majority concludes that the circuit court lost jurisdiction after the Court of Appeals held the suppression order was not final, and the mandate was issued. The cases cited for this conclusion are Redding v. State, 293 Ark. 411 , 738 S.W.2d 410 (1987) and Shipman v. State, 261 Ark. 559 , 550 S.W.2d 424 (1977). Those cases, however, stand for the proposition that a trial court does not lose jurisdiction of the matter until a valid sentence has been put into execution:
The court, at any time before pronouncing sentence, may allow a defendant to withdraw his plea if it is fair and just to do so. However, a defendant has no right to withdraw a plea after it has been accepted by the court unless it is necessary to correct a manifest injustice. See A.R.Cr.P. Rule 26.1. A sentence is placed into execution when the court issues a commitment order unless the trial court grants appellate bond or specifically delays execution of sentence upon other valid grounds. Once a valid sentence has been put into execution, the trial court is without jurisdiction to modify, amend or revise it. Shipman v. State, 261 Ark. 559 , 550 S.W.2d 424 (1977). After the sentence is put into execution the power to change the sentence passes from the trial court to the executive branch of government. Nelson v. State, 284 Ark. 156 , 680 S.W.2d 91 (1984).
Redding, 293 Ark. at 413 , 738 S.W.2d at 411 .
The majority would have it that a mandate and no stay of the mandate equate to putting the sentence into execution. But that clearly did not happen here. The trial court did not put the sentence into execution but allowed the withdrawal of the guilty plea and commenced to try the case. This a trial court can do under the Rules of Criminal Procedure which permit withdrawals of guilty pleas to correct a manifest injustice “after the entry of judgment upon the plea.” Ark. R. Crim. P. 26.1(b). The trial court then set aside its previous judgment of conviction and the guilty plea, as Rule 26.1(b) requires.
The first fallacy in the majority opinion is the confusion between withdrawal of a plea after sentencing which is permissible under appropriate circumstances and withdrawal of a plea after the sentence has been placed into execution and the trial court has lost jurisdiction. The authority cited by the majority speaks to the second circumstance, not the first, and, therefore, is inapposite to the case before us.
The second fallacy in the opinion is the conclusion that Scalco could not withdraw his plea because he did not prevail on appeal under Ark. R. Crim. P. 24.3(b). However, neither side prevailed in that appeal because the Court of Appeals refused to hear it. See Scalco v. State, 42 Ark. App. 134 , 856 S.W.2d 23 (1993). Moreover, the Court of Appeals held that Rule 24.3(b) providing for conditional pleas did-not apply in this case because the suppression urged by Scalco did not involve illegally seized evidence as contemplated by the Rule.
The Court of Appeals dismissed the appeal for lack of a final order. The matter went back for trial, after withdrawal of the guilty plea, and the trial and conviction followed. I see no reason to divest the trial court of jurisdiction to do exactly what it did in this case.
I would reach the merits and affirm.
The mandate actually speaks in terms of dismissing the circuit court decree.