{ "id": 6139821, "name": "Tracy Donell SIMMONS v. STATE of Arkansas", "name_abbreviation": "Simmons v. State", "decision_date": "2000-12-20", "docket_number": "CA CR 99-1468", "first_page": "238", "last_page": "249", "citations": [ { "type": "official", "cite": "72 Ark. App. 238" }, { "type": "parallel", "cite": "34 S.W.3d 768" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "328 Ark. 176", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50417 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0176-01" ] }, { "cite": "334 Ark. 484", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655474 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0484-01" ] }, { "cite": "15 S.W.3d 344", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 1257812, 1257711 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0251-01", "/ark/341/0252-01" ] }, { "cite": "341 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257812 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0251-01" ] }, { "cite": "333 Ark. 429", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703792 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "432" }, { "page": "229" } ], "opinion_index": 1, "case_paths": [ "/ark/333/0429-01" ] }, { "cite": "326 Ark. 51", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12020267 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark/326/0051-01" ] }, { "cite": "11 S.W.3d 562", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 6139558, 1365303 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/ark-app/69/0192-01", "/ark/340/0639-01" ] }, { "cite": "69 Ark. App. 192", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139558 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/ark-app/69/0192-01" ] }, { "cite": "65 Ark. App. 144", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138794 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark-app/65/0144-01" ] }, { "cite": "508 U.S. 366", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12205 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/us/508/0366-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "300 Ark. 265", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886901 ], "weight": 2, "year": 1989, "opinion_index": 1, "case_paths": [ "/ark/300/0265-01" ] }, { "cite": "327 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922772 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark/327/0016-01" ] }, { "cite": "64 Ark. App. 31", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136543 ], "weight": 2, "year": 1998, "opinion_index": 1, "case_paths": [ "/ark-app/64/0031-01" ] }, { "cite": "26 Ark. App. 299", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141871 ], "weight": 2, "year": 1989, "opinion_index": 1, "case_paths": [ "/ark-app/26/0299-01" ] }, { "cite": "15 S.W.3d 344", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 1257812, 1257711 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/ark/341/0251-01", "/ark/341/0252-01" ] }, { "cite": "341 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257812 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/ark/341/0251-01" ] } ], "analysis": { "cardinality": 1025, "char_count": 25799, "ocr_confidence": 0.745, "pagerank": { "raw": 1.2212040370737555e-07, "percentile": 0.598209586736524 }, "sha256": "aa6b61e42b7a211fd3bc60a4aa8a37518011ed7a3f3f8b626a76dac96880bd6f", "simhash": "1:98b8908007ec8cd6", "word_count": 4286 }, "last_updated": "2023-07-14T20:58:14.113773+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, C.J., and Jennings, Koonce, Griffen, Crabtree, and MEADS, JJ., agree.", "Roaf and Hart, JJ., dissent." ], "parties": [ "Tracy Donell SIMMONS v. STATE of Arkansas" ], "opinions": [ { "text": "Sam BIRD, Judge.\nTracy Donnell Simmons brings this appeal from the Arkansas County Circuit Court\u2019s denial of\nhis motion to suppress controlled substances found on his person and in his car. He contends that the trial court erred in refusing to grant his motion to suppress evidence because the search of his person and car were without probable cause and a valid warrant and, thus, a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Following the court\u2019s denial of his motion to suppress, Simmons entered a plea of guilty to a charge of possession of marijuana with intent to deliver and was sentenced to a term of sixty months in the Arkansas Department of Correction. In entering his guilty plea, Simmons apparently attempted to preserve his right to appeal from the trial court\u2019s order denying his motion to suppress evidence pursuant to the provisions of Ark. R. Crim. P. 24.3. However, because we cannot find that Simmons has complied with the requirements of that rule, we dismiss the appeal because we lack jurisdiction to hear it.\nThe abstract submitted by Simmons reveals that after the court denied Simmons\u2019s motion to suppress, the prosecuting attorney, on May 25, 1999, made a written \u201cSentence Recommendation\u201d stating that \u201c[i]n accordance with the Plea Agreement between the Prosecuting Attorney and the defendant\u2019s attorney, the defendant agrees to plead guilty to the charges now pending against him in this case\u201d and that upon the entry of such plea, the State would recommend to the court a sentence of sixty months confinement in the Arkansas Department of Correction. Other recommendations by the prosecuting attorney were that the \u201ccharges nol prossed in CR-98-168 will not be refiled as long defendant obeys all laws.\u201d\nOn May 27, 1999, the court held a sentencing hearing, at which Simmons pled guilty to possession of marijuana with intent to deliver. At that hearing, the following exchange took place between the court, Simmons, and defense counsel:\nThe Court: Let\u2019s see, you are Tracy Donnell Simmons?\nSimmons: Yes.\nThe Court: And, Mr. Simmons, you know you are charged with possession of marijuana with intent to deliver, which is a \u201cC\u201d felony, and carries a range of punishment of four to ten years?\nSimmons: Yes, sir.\nThe Court: And you are entitled to a jury trial?\nSimmons: Right.\nThe Court: I believe we were set for one this morning?\nDefense Attorney: Yes, your honor.\nThe Court: It\u2019s my understanding, Mr. Simmons, that you want to give up your right to a jury trial and change your plea \u25a0to guilty?\nSimmons: Yes, sir.\nThe Court: In exchange for a plea of guilty, the State has agreed to recommend a sentence of sixty months in the Department of Correction.\nSimmons: Yes, sir.\nThe Court: And that CR.-980168 will be, or it already has been nolle pressed?\nDefense Attorney: It was nolle pressed. It will not be refiled.\nThe Court: It will not be re-filed as part of the \u2014 as long as you are \u2014 stay out of trouble. And you have gone over the guilty plea statement with Ms. Boyd?\nSimmons: Excuse me?\nThe Court: You have gone over this statement, this guilty plea statement, with Ms. Boyd?\nSimmons: Yes, sir.\nThe Court: Do you understand it?\nSimmons: Yes, sir.\nThe Court: Do you have any questions at all about it?\nSimmons: No, sir.\nThe Court: Is this your signature?\nSimmons: Yes, sir.\nThe Court: And other than this sixty months, has anybody promised you anything, or threatened you with anything in order to get you to change your plea?\nSimmons: No, sir.\nThe Court: And are you guilty?\nSimmons: Yes, sir.\nThe Court: All right, thank you Mr. Simmons.\nDefense Attorney: Your honor, we have additional I spoke with Mr. Dittrich on, and that was a plea. We had also discussed that he is reserving his right to appeal the denial of the Motion to Suppress Pursuant to Rule 28 (sic).\nThe Court: This is a conditional plea?\nMs. Boyd: Yes, Your Honor.\nThe Court: All right.\nThe \u201cGuilty Plea Statement\u201d referred to by the trial court consists of two pages, and was signed by Simmons and his attorney on May 27, 1999. The statement sets forth various rights that are waived upon the entry of a guilty plea, including a waiver of \u201c[t]he right to appeal from the verdict and judgment, challenging all issues of fact and law,\u201d and, \u201cThe right to challenge the legality of my arrest, and the admissibility and consideration of evidence which may be presented against me.\u201d\nAttached to the \u201cGuilty Plea Statement\u201d and labeled as page 3 is the May 25, 1999, \u201cSentence Recommendation,\u201d signed by the prosecuting attorney, Robert Dittrich. At the bottom of the page constituting the prosecuting attorney\u2019s sentence recommendation, is a handwritten statement of unknown origin stating: \u201cConditional plea-re suppression \u2014 No objection to boot camp. No further charges to be filed. May appeal suppression pursuant to Rule 28 [sic] of Arkansas Rules of Criminal Procedure.\u201d\nThe court\u2019s \u201cJudgment and Commitment Order\u201d appears to have been dated and signed by the judge on May 28, 1999, filed with the clerk on June 2, 1999, and Simmons filed his notice of appeal on July 1, 1999. On July 2, 1999, the court entered an order finding that Simmons had entered a conditional plea of guilty, reserving the right to appeal from the court\u2019s denial of his motion to suppress.\nAfter Simmons filed his appeal, the State moved to dismiss it, stating that Simmons had failed to preserve it because he had not complied with the strict requirements of Ark. R. Crim. P. 24.3(b). This court denied the State\u2019s motion. Thereafter, the State sought review of our denial of its motion in the Arkansas Supreme Court, but that court declined to consider the State\u2019s request for review, holding that \u201cFrom the pleadings, it appears that there is a dispute as to whether appellee perfected a conditional plea of guilty in order to preserve his right to appeal. The court of appeals\u2019 decision to deny the motion to dismiss will permit that court to review that question as it considers the merits of the appeal.\u201d See Simmons v. State, 341 Ark. 251, 15 S.W.3d 344 (2000).\nIn the jurisdictional statement of its brief, the State again asserts that Simmons has failed to strictly comply with the requirements of Ark. R. Crim. P. 24.3. First, the State argues that because Simmons\u2019s abstract does not detail the pleadings upon which he claims that a written reservation of the right to appeal was made, but refers only to the circuit court\u2019s post-plea order and to the plea hearing, this court should dismiss the appeal for abstracting deficiencies. In the alternative, the State also argues that the transcript does not contain an adequate written reservation as required by the rule. It argues that Simmons\u2019s signature on the guilty-plea statement, which acknowledges his waiver of his right to appeal, is in direct conflict with the handwritten note at the bottom of the sentence recommendation that refers to his reservation of his right to appeal.\nWe agree with the State that Simmons has failed to comply with the requirements of Ark. R. Crim. P. 24.3 and that his appeal must be dismissed for lack of jurisdiction.\nArkansas Rule of Criminal Procedure 24.3(b) states:\nWith the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendr\u00e9 [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.\nThe supreme court has interpreted Ark. R. Crim. P. 24.3(b) to require strict compliance with the writing requirement in order for the appellate court to obtain jurisdiction. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998). Absent compliance with the express terms of Rule 24.3(b), this court acquires no jurisdiction to hear an appeal, even when there has been an attempt at trial to enter a conditional plea. Ray v. State, 328 Ark. 176, 941 S.W.2d 427 (1997).\nWe hold that Simmons has failed to strictly comply with the requirements of Rule 24.3 in two respects. First, there is no indication that the prosecuting attorney has consented to the conditional plea, as required by Ark. R. Crim. P. 24.3. Except for the extraneous handwriting of unknown origin that appears beneath the prosecuting attorney\u2019s signature at the bottom of his sentence recommendation, there is nothing in the sentence recommendation to indicate that a conditional plea was a part of that recommendation. Clearly, the trial judge, who had a copy of the sentence recommendation and guilty plea statement before at the time of sentencing, was not aware that Simmons\u2019s plea was conditional until he was so apprised by defense counsel after Simmons had entered his plea, giving rise to the strong probability that the handwriting of unknown origin at the bottom of the sentence recommendation was not placed there until during or after the sentencing hearing. There is no indication that the prosecuting attorney was in attendance at the sentencing hearing. In fact, the exchange between the court and counsel during the sentencing hearing, quoted at length above, clearly implies that the prosecuting attorney was not there.\nThe second problem with Simmons\u2019s attempted conditional plea is that his \u201cGuilty Plea Statement\u201d explicitly contradicts the notion that his plea is conditional and that he reserved the right to challenge the court\u2019s disposition of his motion to suppress. See Green v. State, supra. As already noted, the guilty plea statement provides expressly that he waives the right to challenge on appeal the admissibility and consideration of evidence which may be presented against him, and the right to appeal from the judgment entered against him. The waiver of these rights is directly contradictory to the purported reservation of the right to challenge the trial court\u2019s denial of a motion to suppress evidence.\nThe dissent suggests that our decision to dismiss Simmons\u2019s appeal is based on the fact that \u201c... Simmons\u2019s attorney and the prosecutor used a preprinted form, not specifically designed for memorializing a defendant\u2019s conditional plea, and entered handwritten notations to indicate that the plea was conditional.\u201d The dissent\u2019s characterization is inaccurate for three reasons. First, there is nothing in the record to indicate that the prosecuting attorney participated at all in the use of any form that was intended to memorialize Simmons\u2019s plea as a conditional one under Rule 24.3. Second, the form that was used contains language that directly conflicts with Simmons\u2019s contention that his plea was conditional. And third, the handwritten notations that were added at the bottom of the \u201cGuilty Plea Statement\u201d in an attempt to make Simmons\u2019s plea appear to be conditional were not only missing from the form when it was presented to the trial court at the time the guilty plea was entered, but the handwritten notations bear no resemblance to the handwriting of the person who filled out the \u201cSentence Recommendation\u201d that the prosecuting attorney signed two days before Simmons entered his guilty plea, giving rise to a strong inference that the notations were placed on the form without the knowledge or consent of the prosecuting attorney.\nAppeal dismissed.\nRobbins, C.J., and Jennings, Koonce, Griffen, Crabtree, and MEADS, JJ., agree.\nRoaf and Hart, JJ., dissent.\nThe handwritten statement at the bottom of the sentence recommendation is in two different handwritings, both of which are obviously different from the handwriting of the person who filled in the handwritten portions of the sentence recommendation.", "type": "majority", "author": "Sam BIRD, Judge." }, { "text": "Andrea LAYTON Roaf, Judge,\ndissenting. I would reach the merits of this appeal and reverse and remand because the trial court erred in refusing to suppress the marijuana found in this illegal search. The majority has dismissed this appeal because they believe that Tracy Simmons has failed to strictly comply with the rule governing conditional guilty pleas, Ark. R. Crim. P. 24.3. They impose this draconian penalty simply because Simmons\u2019s attorney and the prosecutor used a preprinted form, not specifically designed for memorializing a defendant\u2019s conditional plea, and entered hand-written notations to indicate that the plea was conditional. The majority also suggests that the prosecutor may not have known about or agreed to the conditional plea until after the fact. Be that as it may, Simmons\u2019s abstract, although sketchy on this point, does reflect that a conditional plea was timely entered, and the record bears this out. We should address the merits of this case.\nAt Simmons\u2019s suppression hearing, Stuttgart police officer Joe Griffin testified that on the evening in question he observed Simmons sitting alone in a vehicle that was parked on the wrong side of the street outside the Sugartown Lounge. Simmons was talking to a pedestrian, who quickly left and entered the Lounge as Griffin approached. On prompting by the State, Griffin stated that he was \u201caware\u201d of Simmons. According to Griffin, after the individual ran off, Simmons drove from the scene \u201cin a very fast manner,\u201d pulling out into oncoming traffic, not stopping at a stop sign, \u201cdriving very reckless and very fast.\u201d Griffin claimed that at the time, he knew that Simmons was driving on a suspended Texas driver\u2019s license and that he had previously issued Simmons a citation for it. According to Griffin, he turned on his blue fights and siren, but Simmons refused to pull over. Simmons again went through a stop sign and then stopped at the Corner Inn Caf and attempted to go inside. Griffin stopped Simmons and brought him back to his vehicle.\nAccording to Griffin, at that time, he had not yet placed Simmons under arrest, but proceeded to run his license, \u201cto make sure it was, uh, still suspended.\u201d When Griffin received verification that the license was still suspended, he placed Simmons under arrest, according to the \u201cpolicy\u201d of the Stuttgart Police Department. Before taking him back to the patrol car, Griffin patted down Simmons and discovered several small bags of \u201csuspected marijuana\u201d in the pocket of Simmons\u2019s blue jeans. When he performed an \u201cinventory search\u201d for the wrecker service, Griffin found a larger bag of marijuana and several \u201cblunts.\u201d At the detention facility, another small bag of marijuana was found in Simmons\u2019s t-shirt pocket.\nOn cross-examination, Griffin admitted that he had only seven months\u2019 experience at the time of the arrest, and was aware that he was operating in a high-drug-trafficking area. He also admitted that he did not see Simmons\u2019s face when he approached his vehicle, however, he was \u201cabsolutely sure\u201d who it was because Simmons \u201cis a large gentleman, with a large profile,\u201d and he was \u201caware\u201d of Simmons\u2019s vehicle. However, it was brought out that despite the confidence he expressed in his trial testimony, Officer Griffin\u2019s report stated that when he approached Simmons\u2019s vehicle, he knew it to be occupied by an \u201cunknown black male.\u201d When asked about discrepancies between his hearing testimony and his report, Griffin admitted that some of what was in the report was incorrect, but \u201cnot all of it.\u201d Griffin admitted that he did not record in his report the fact that Simmons\u2019s license was revoked or that Simmons was under arrest when he performed the pat-down search. Griffin also insisted that even though his report stated that he noticed a bulge in Simmons\u2019s hip pocket when Simmons was reaching for his license in his back pocket and subsequently performed a Terry frisk, Simmons was under arrest before he searched him. Griffin admitted that Simmons was very cooperative in surrendering his license and was not combative at any time and that he noticed nothing that would make him believe that Simmons was armed. He also admitted that during his pat-down of the bulge, he felt it to be \u201csoft in nature,\u201d and admitted that a weapon would not be soft.\nThe trial judge denied Simmons\u2019s suppression motion, stating:\nI will deny the Motion to Suppress. This Dickerson case is distinguishable. It says that it was discovered only after squeezing, sliding, and otherwise manipulating the contents of the pocket and it was a pocket that the officer already knew did not contain a weapon. It does not sound like it would fit here. Thank y\u2019all.\nSimmons argues that Officer Griffin lacked reasonable suspicion to stop his vehicle. He contends that as Officer Griffin approached, he did not have reasonable suspicion of criminal activity, as required by Rule 3.1 of the Arkansas Rules of Criminal Procedure. He challenges Griffin\u2019s trial testimony about recognizing Simmons, both because the officer never saw Simmons\u2019s face and because Officer Griffin\u2019s report stated that he was an \u201cunknown black male.\u201d He further argues that Officer Griffin\u2019s report does not mention any of the traffic offenses that Griffin testified about at trial. Citing Camp v. State, 26 Ark. App. 299, 764 S.W.2d 463 (1989), Simmons argues that a random stop of a driver violates the Fourth Amendment. This argument has merit.\nWhen this court reviews a trial court\u2019s denial of a motion to suppress, it makes an independent determination based on the totality of the circumstances, but will only reverse if the trial court\u2019s decision was clearly against the preponderance of the evidence. Hill v. State, 64 Ark. App. 31, 977 S.W.2d 234 (1998). Rule 3.1 of the Arkansas Rules of Criminal Procedure states:\nA law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer\u2019s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.\nA \u201creasonable suspicion\u201d is defined as \u201ca suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.\u201d Ark. R. Crim. P. 2.1.\nFirst, while Officer Griffin may well not have had reasonable suspicion when he first approached Simmons\u2019s vehicle, if the officer\u2019s trial testimony is to be believed, reasonable suspicion accrued when he recognized Simmons as a person whom he had recently cited for driving on a suspended driver\u2019s license and when Simmons committed the various traffic offenses that he allegedly committed when he left the area. Of course it is possible that when Simmons saw Officer Griffin approach in a marked police car that had not yet activated its blue lights or siren, his technique for avoiding arrest was to drive away recklessly at a high rate of speed, sail through two stop signs, and attempt to go into a night club. However, if these traffic offenses were committed, Officer Griffin had reasonable suspicion to make the stop and arrest. A law-enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person has committed any violation of the law in the officer\u2019s presence. Ark. R. Crim. P. 4.1 (a) (iii). The question therefore is simply whether Officer Griffin\u2019s credibility is assailable on appeal.\nIt is so well settled as to be axiomatic that the credibility of the witness in this instance was for the trial court to weigh and assess. See, e.g., State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997). However, in Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989), the supreme court stated: \u201cwhile we concede the trial judge is better able to assess credibility, we review the proceedings below independently of the trial court and base our conclusions on the totality of the circumstances.\u201d\nIn this regard, Officer Griffin\u2019s report stated that the subject he approached was \u201can unknown black male,\u201d not someone he had cited for driving with a suspended license shordy before the encounter. The report also stated that he did a pat-down search prior to formal arrest, which conflicts with his hearing testimony. Moreover, the scope of the search as described by Officer Griffin, i.e., a pat-down of Simmons\u2019s outer clothing is consistent with a Terry frisk, not a full search incident to arrest. The fact that more marijuana was found when Simmons was searched at the detention center further corroborates the cursory nature of the pat-down search. In this instance, the officer\u2019s testimony in court was so diametrically opposed in every material part to two written reports prepared immediately following Simmons\u2019s arrest as to lead to the inescapable conclusion that the trial testimony lacked credibility.\nSimmons\u2019s remaining arguments hinge on whether he was under arrest when Griffin patted him down. Simmons argues that under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, Officer Griffin was not justified in performing a Terry frisk because the officer did not articulate any basis for his belief that he was presently armed and dangerous. He contends that Griffin\u2019s trial testimony was that Simmons was cooperative and not combative, and he did not observe anything that he believed to be a weapon. Simmons acknowledges that Officer Griffin testified that he noticed a \u201cbulge\u201d in Simmons\u2019s pants pocket and that the bulge prompted the search; however, Griffin did not indicate that he suspected that the bulge was a weapon. Simmons also argues that even if Officer Griffin was justified in his performance of a Terry frisk, the scope of the search exceeded the permissible limits set forth in Terry and Minnesota v. Dickerson, 508 U.S. 366 (1993), because the purpose of the frisk is not to discover evidence, but to allow the officer to pursue the investigation without fear of violence. Simmons acknowledges that the \u201cplain-feel\u201d doctrine allows an officer to seize items that he readily identifies as contraband; however, Officer Griffin admitted that he was not able to identify the \u201cbulge\u201d as contraband until he removed it from the pocket.\nThe standard for justifying a Terry frisk is whether a reasonably prudent man in the circumstances would believe that his safety or the safety of others was in danger. Kearse v. State, 65 Ark. App. 144, 986 S.W.2d 423 (1999). However, Simmons either was, or was not, under arrest when Officer Griffin conducted the pat-down search, depending on which version of the events is correct. Officer Griffin\u2019s trial testimony was that Simmons was already under arrest when he performed the pat-down. The rules in Terry simply do not apply to a search incident to arrest. See, e.g., Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). By the same token, if the seizure of the marijuana was conducted pursuant to a search incident to arrest, Terry and the plain-feel doctrine are also not implicated. However, Officer Griffin\u2019s in-court testimony differs markedly from his written reports on this important factual matter, and Simmons\u2019s arguments consequendy have merit. This case should be reversed.\nI respectfully dissent.\nHART, J., joins only with regard to whether the issue was preserved for appellate review.\nThis court has already denied the State\u2019s motion to dismiss this appeal, on March 15, 2000, months prior to submission of the case. Rather than seek rehearing of our decision, the State attempted to have the supreme court review our denial of its motion, however the supreme court refused to do so. See Simmons v. State, 341 Ark. 251, 15 S.W.3d 344 (2000). In this instance our denial apparently does not bar the panel from addressing this jurisdictional issue on submission of the case, without regard to whether the State had unsuccessfully pursued an earlier motion to dismiss\nWe are required to put form over substance when determining whether there has been compliance with Rule 24.3(b). In Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996), the supreme court unequivocally stated this court cannot breathe life into a flawed appeal from a conditional guilty plea where no jurisdiction is vested. In a subsequent case, however, the supreme court did not preclude Tabor\u2019s efforts to appeal the trial court\u2019s denial of his motion to suppress. In Tabor v. State, 333 Ark. 429, 432, 971 S.W.2d 227, 229 (1998), the court stated: \u201cFollowing this court\u2019s dismissal of the appeal, Appellant successfully petitioned the trial court to withdraw his guilty pleas pursuant to A.R.Cr.P. Rule 26.1. He then entered a conditional plea to the same charges on January 10, 1997, this time reserving in writing his right to appeal the trial court\u2019s ruling on his motion to suppress in compliance with Rule 24.3.\u201d\nQ. Did you \u2014 did you know Mr. Simmons?\nA. [No verbal response.]\nQ. Had you seen Mr. Simmons before?\nA. Uh, yes, sir, I was aware of Mr. Simmons.", "type": "dissent", "author": "Andrea LAYTON Roaf, Judge," } ], "attorneys": [ "Boyd & Buie, by M. Christina Boyd and Rufus T. Buie, III, for appellant.", "Mark Pryor, Att\u2019y Gen., by: David R. Raupp, Sr. Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Tracy Donell SIMMONS v. STATE of Arkansas\nCA CR 99-1468\n34 S.W.3d 768\nCourt of Appeals of Arkansas Divisions IV, I, and II\nOpinion delivered December 20, 2000\n[Petition for rehearing denied January 24, 2001 ]\nBoyd & Buie, by M. Christina Boyd and Rufus T. Buie, III, for appellant.\nMark Pryor, Att\u2019y Gen., by: David R. Raupp, Sr. Ass\u2019t Att\u2019y Gen., for appellee.\nHart, Baker, and Roaf, JJ., would grant." }, "file_name": "0238-01", "first_page_order": 266, "last_page_order": 277 }