State v. Streeter , 227 Utah Adv. Rep. 38 ( 1993 )

OPINION

PER CURIAM:

Defendant appeals from his conviction for aggravated assault, a third degree felony, in violation of Utah Code Ann. § 76-5-103 (1990). Defendant pled guilty to the offense pursuant to a conditional plea agreement under State v. Sery, 758 P.2d 935 (Utah App.1988). He reserved his right to appeal the denial of a motion to suppress statements allegedly obtained in violation of the Miranda requirements.

Subsequent to entry of the conditional plea and during the course of the present appeal, this court issued its decisions in State v. Montoya, 858 P.2d 1027 (Utah App.1993) and State v. Harris, 858 P.2d 1031 (Utah App.1993). Montoya held that in Sery plea cases, the disposition on appeal must effectively bring the prosecution to an end. Montoya, 858 P.2d at 1030. Accordingly, the court stated that “it is incumbent upon a trial court, when it allows a defendant to enter a guilty plea conditioned on his or her right to appeal a certain issue, to make sure the record clearly establishes that resolution of the issue on appeal, one way or another, will necessarily end the prosecution of the case.” Id.

Because the plea in this case was entered prior to Montoya, the record does not contain the required finding. The case is therefore remanded to the trial court for entry of the finding as required by Montoya. Following remand, the trial court shall prepare and transmit to this court a supplemental record of its proceedings. If the trial court cannot make the requisite factual finding in support of a conditional guilty plea, the trial court shall allow withdrawal of the conditional plea and advise this court of its determination.