dissenting. The majority holds that the circuit court’s order granting the State’s motion to nolpros the charges against C.W. was “clearly a final order of dismissal.” C.W. did not argue that there was a final order in this case. In fact, C.W. argues the exact opposite, asserting that “because the case was nolle pressed, no final judgment was entered in this case,” and “[i]n essence, this case was never adjudicated.” Further, Ark. Code Ann. § 16-89-122 (Repl. 2005) provides that an order granting the State’s nolle prosequi motion “does not bar future prosecution for the same offense.” Although this court has held that the record may show that the State intended for a nolle prosequi to be an unconditional dismissal that barred subsequent prosecution, that is clearly not the case here. Cf. State v. Gaddy, 313 Ark. 677, 858 S.W.2d 81 (1993) (record showed State’s nolle prosequi as part of a plea agreement was intended to be an “unconditional dismissal”); Halton v. State, 224 Ark. 28, 271 S.W.2d 616 (1954) (court’s order granting State’s nolle prosequi motion discharged defendant from “all further liability,” thus the charges were unconditionally dismissed and there was a final disposition).
Arkansas Rule of Appellate Procedure-Criminal 3(a) (2008), in relevant part, provides that the State may take an interlocutory appeal only from a pretrial order in a felony prosecution that grants a motion under Ark. R. Crim. P. 16.2 to suppress seized evidence or a defendant’s confession. Such is the case before us. The prosecuting attorney has only ten (10) days after the entering of the pretrial order to file a notice of appeal together with a certificate that the appeal is not taken for purposes of delay and that the order substantially prejudices the prosecution of the case. Upon these requirements being met, the proceedings shall be stayed pending determination of the appeal.
Here, the State filed its notice the day after the trial court’s order was entered, and nothing in the record shows the State specifically waived its right to an appeal. C.W. curiously argues that the State sought to appeal its own nolle prosequi motion via an interlocutory appeal; to the contrary, the State specifically filed its interlocutory appeal from the trial court’s order suppressing the evidence. C.W. also asserts, without citation to authority, that the State should have asked this court to stay the circuit court’s proceedings while the State attempted to appeal the trial court’s order granting the motion to suppress. However, when the State satisfied the requirements to effectuate its interlocutory appeal, a stay of any further proceedings went into effect under the plain language set out in Rule 3(a).
The majority relies on the case of State v. Beall, 321 Ark. 624, 906 S.W.2d 676 (1995), but that case never mentions nolle prosequi. In Beall, the trial court granted the defendant’s motion to suppress all evidence seized at the time of his arrest for possession of a controlled substance, and the State dismissed the charges, giving no indication that it intended to take any further action. The State then filed an interlocutory appeal, which this court rejected. Nothing in Beall suggests that the State nol-prossed the charges there, rather than completely dismissing them; moreover, there is nothing in Beall to suggest that the State intended to impose any conditions on its dismissal of the charges. By contrast, the record here clearly demonstrates that the State did not intend for the nolle prosequi to be a dismissal with prejudice of the charges against C.W.
The majority states that, in our recent opinion in State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008), we did not hold that the State’s nolle prosse of charges under a plea agreement was not a final order. We held in Crawford that, as a matter of law, the record did not “reflect that the nolle prosse was an unconditional dismissal of the felony information,” and “[n]either does the record reflect that the nolle prosse was a final disposition of the case.” Id. at 98-99, 281 S.W.3d at 739 (emphasis added). The Crawford opinion noted cases where an order granting the State’s nolle prosse motion was a complete dismissal and termination of the proceedings. Specifically, the Crawford court stated that in Halton, supra, the language of the nolle prosequi order there indicated a complete dismissal of the indictment and, therefore, “this court held that where an information or indictment is unconditionally dismissed, it terminates the proceeding and the same cannot be reinstated and prosecution resumed.” Crawford, 373 Ark. at 98, 281 S.W.3d at 739 (emphasis added). Unlike Halton, the State’s nolle prosequi in this case did not “terminate the proceedings” against C.W., as the record clearly shows.
For these reasons, I respectfully dissent.
Brown, J., joins this dissent.