dissenting. I disagree J with the majority’s conclusion, raised sua sponte on appeal and not argued by the State, that appellant failed to comply with Rule 24.3(b). Before a plea was entered and in the presence of the prosecuting attorney, the trial judge asked the appellant, “Now, this plea as I understand it for the record is pursuant to the provisions of Rule 24.3(b), a conditional plea wherein the Defendant reserves his right to appeal the suppression issue that was just heard immediately prior to this plea; is that correct?” Appellant replied affirmatively, and on the face of the judgment and commitment order, which was signed by the trial judge and dated the same day as the hearing, the phrase “conditional plea” was handwritten beside the paragraph containing the following preprinted language: “defendant voluntarily, intelligently, and knowingly entered a negotiated plea of guilty or nolo contendere.” When the judgment and commitment order is read in the context of what occurred at the hearing, the writing must be deemed sufficient.
Citing Simmons v. State, 72 Ark. App. 238, 34 S.W.3d 768 (2000), the majority concludes that the plea questionnaire contradicts any notion that the appellant made a conditional plea. The preprinted questionnaire asks appellant whether he “understand^] [that] the effect of a plea of guilty to the charges against you, is that there is no appeal and you can’t withdraw your plea later on?” However, I am persuaded after considering the judgment and commitment order and the court’s remarks, this question cannot plausibly be read to suggest that appellant was entering an unconditional guilty plea.
The majority mentions in a footnote that the phrase “conditional plea” was handwritten on the judgment and commitment order and states that there is no indication who wrote it on the order. I note that the rule does not require the scrivener to be identified and further note that the order was signed by the trial judge. While the majority states that appellant did not sign the order, I do not find the fact significant, since Rule 24.3(b) does not require the defendant to sign and date the conditional plea; it only requires that the conditional plea be in writing. The majority further asserts that it is not apparent when the handwritten notation of “conditional plea” was written; the order, however, was dated and filed the same day as the hearing. Thus, considering that the phrase “conditional plea” was written on the order and that the remarks on record indicate a conditional plea was being entered, I conclude that appellant preserved his right to appeal by satisfying the requirements that the plea must be made in a contemporaneous writing and approved by the trial court with the consent of the prosecuting attorney.
If we were to address the issue raised by appellant, I would require that this record be remanded to the trial court to settle the record. There are inconsistencies between versions of a document entitled “Memorandum of Interview” that appear in the record and in appellant’s brief. The document is relevant to a determination of the merits of appellant’s argument, and the presence of these inconsistent versions bears upon the candidness of not only the parties but also the truthfulness of matters discussed in the document. I respectfully dissent.