Parker v. State , 215 Ga. App. 419 ( 1994 )

Ruffin, Judge.

Kenneth Parker was indicted for possession of LSD with the intent to distribute. Following the denial of his motion to suppress, he entered a guilty plea and attempted to reserve the right to appeal the denial of his motion to suppress pursuant to Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991). Parker appealed from the entry of the judgment of conviction and sentence to this court. See Parker v. State, 211 Ga. App. 187 (438 SE2d 664) (1993). On appeal, a majority of this court held that it could not determine, based on ambiguities in the record, whether the trial court made and expressly set forth the critical determination that it approved the reservation of the right to appeal the denial of the motion to suppress and accepted the guilty plea with that condition in accordance with Mims. See id. at 191. Therefore, we vacated the trial court’s judgment and “remanded to the trial court for a plea hearing at which the trial court may clearly exercise its discretion in accordance with Mims . . . , supra. Should the trial court permit defendant Parker to enter a guilty plea ‘with a reservation of an appellate issue,’ defendant may bring an appeal submitting those issues.” Id. (Emphasis in original.)

On remand, a second plea hearing was held, and Parker again attempted to enter a guilty plea, expressly reserving the right to appeal the denial of his motion to suppress. The colloquy between the trial court, the assistant district attorney, and defense counsel indicates that the parties were cognizant of our previous decision. Both defense counsel and the assistant district attorney stated that the purpose of the hearing was to allow Parker to enter a conditional plea so that he could appeal the denial of his motion to suppress. The trial court did not indicate it would not accept the guilty plea with a reservation. While it appears the court was attempting to act pursuant to our direction, after being informed that Parker intended to enter such a plea, the trial court again, inexplicably, failed to enter the guilty plea “with a reservation of an appellate issue” as we directed. The direction given by this court could not have been clearer; however, neither the transcript of the hearing nor the judgment recite that the court accepted the guilty plea and entered the judgment with a reservation. Parker now appeals from that judgment.

We cannot consider the merits of an appeal from the denial of Parker’s motion to suppress without an express reservation approved by the trial court. See Mims, supra at 279. Therefore, we have no choice but to once again vacate the trial court’s judgment and Parker’s guilty plea and remand to the trial court for yet another plea hearing. If the court decides to accept Parker’s guilty plea with a reservation in accordance with Mims, that decision shall be clearly set forth on the record and in the judgment of the court. After the entry of the court’s judgment, Parker may appeal the denial of his motion to suppress.

We are mindful that in Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994), we disapproved the conditional plea procedures established in Mims henceforth; however, since the entry of a proper conditional plea would otherwise have preceded the effective date of Hooten, but for the trial court’s failure to follow our previous decision, Parker will not be barred by Hooten from entering such plea on remand.

Judgment vacated and case remanded.

McMurray, P. J., Birdsong, P. J., Andrews and Smith, JJ., concur. Pope, C. J., Beasley, P. J., Johnson and Blackburn, JJ., dissent.