McMurray, Presiding Judge.
Defendant Parker was indicted for possession of lysergic acid diethylamide (“LSD”) with the intent to distribute. Following the denial of his motion to suppress evidence seized during a search of his person, Parker pleaded guilty and attempted to reserve the right to appeal the denial of the motion to suppress. Held:
The applicable procedure by which a criminal defendant may [188] plead guilty but reserve issues for consideration on appeal is enunciated in Mims v. State, 201 Ga. App. 277, 278 (1), 279 (410 SE2d 824). In Mims this court held that “trial courts have the discretion to accept or reject guilty pleas (Harris v. State, 175 Ga. App. 134, 135 (332 SE2d 685); Echols v. State, 167 Ga. App. 307, 308 (306 SE2d 324)), even when the guilty plea is part of a plea bargain. State v. Germany, 246 Ga. 455, 456 (271 SE2d 851). Therefore, it is the responsibility of the trial court to decide whether to exercise its discretion and accept a guilty plea on condition that appellate issues are preserved. . . . [Defendants have no right to condition guilty pleas upon reserving the appeal of any issues, and defendants may only reserve the appeal of such issues when the trial court, in the exercise of its discretion, allows a defendant to do so as part of a negotiated plea. Therefore, unless the trial court expressly approves the reservation of the issue and accepts the guilty plea with that condition, the issue is not preserved. . . .” (Emphasis supplied.) Id. at 278-279 (1).
In the case sub judice, it appears that not until after the trial court pronounced sentence and explained the conditions relating to defendant Parker’s sentence on probation is there any mention of a reservation of defendant Parker’s appeal of “a motion to suppress.” This is confirmed in the following quoted portion of the “pleas and sentences” transcript: “(Standing before the Court, Kenneth Andrew Parker, [first co-defendant], and [second co-defendant].) MR. STINES [assistant district attorney]: Your Honor, the State would call co-defendants Kenneth Andrew Parker, [first co-defendant], and [second co-defendant]. THE COURT: There’s three of these, and that’s Kenneth Andrew Parker, [first co-defendant], and [second co-defendant]? MR. STINES: That’s correct, Your Honor. MR. FOWLER [counsel for second co-defendant]: [Second co-defendant] is here, Your Honor. This is [second co-defendant]. THE COURT: Okay, each one of you raise your right hand. NOTE: (Defendants sworn in.) THE COURT: Now, each one of you understand what you’re charged with in this case? [FIRST CO-DEFENDANT]: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. [DEFENDANT] PARKER: Yes, sir. THE COURT: And you’re charged with violation of the Georgia Controlled Substance Act, is that right? [SECOND CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [FIRST CO-DEFENDANT]: Yes, sir. THE COURT: Now, you’ve had time to talk with your lawyer about this case, each one of you? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: And your lawyer is physically present with you in court at this time? [FIRST CO-DEFENDANT]: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. THE COURT: And you understand that upon your plea of guilty, you could be imprisoned for as much as 30 years? [FIRST CO-DE[189] FENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: Are you able to hear and understand my statements and questions? [SECOND CO-DEFENDANT]: Yes, sir. [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. THE COURT: Are you now under the influence of alcohol, drugs or medication? [SECOND CO-DEFENDANT]: No, sir. [FIRST CO-DEFENDANT]: No, sir. MR. PARKER: No, sir. THE COURT: Do you know that you have a right to enter a plea of not guilty, be faced by your accusers, examine them, and present witnesses and other evidence in your behalf? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: You understand that you have a right to plead not guilty to every charge filed against you? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: And you understand that if you plead not guilty, you have the right to testify or not to testify, as you choose; that you cannot be required to testify and that if you do not testify, the Jury cannot take that as evidence against you? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: Do you understand that if you plead not guilty, you would be presumed to be innocent and that before you can be convicted, the prosecution will have the duty of proving your guilt beyond a reasonable doubt? [FIRST CO-DEFENDANT]: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. THE COURT: Now, has anyone made any promises or threats to you to cause you to plead guilty? [FIRST CO-DEFENDANT]: No, sir. MR. PARKER: No, sir. [SECOND CO-DEFENDANT]: No, sir. THE COURT: You can now let them enter their plea at this time. Now, you’re pleading guilty freely and voluntarily? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. STINES: Your Honor, the facts would show in this case that back on the 10th day of September, 1992, agents from the Moultrie/Colquitt County Drug Squad made a stop up at the Zippy Mart in Doerun, found three persons involved, that they had 136 hits of LSD on them. They made statements indicating that the intent was to distribute this. This happened in Colquitt County, Georgia. NOTE: (Defendants enter their pleas of guilty.) MR. STINES: Your Honor, as to case number 93-CR-34, the Defendants Kenneth Andrew Parker, [first co-defendant], and [second co-defendant], have all entered their guilty pleas by signing the place provided on the back of the indictment along with their attorneys, Mr. Fowler for [second co-defendant], Mr. Mullís for Mr. Parker, and Mr. May for [first co-defendant]. THE COURT: Okay. Now, it’s the sentence of the Court that each one of you serve 10 years and I’m going to let you servé thát ten years on probation, provided you pay a fine of [190] $3,000. And also, there will be a search clause in there that they can stop you and search you at any time, any law enforcement officer, or the probation officer at any time can bring you in for a search. They can also test you to see if you’re using drugs at any time. Now, here again, on the two — not all of them are first offender, are they? MR. MULLIS: No, sir. The two young lady’s [sic] are. THE COURT: Now, you heard me tell the other ones awhile ago about that first offender. You’re only getting 10 years but if during that 10 year period they catch you using drugs, then they bring you into court and you get 30 years on this charge; not on the new charge but on this one here. You just go off to prison for 30 years, no trial or anything. I just adjudicate you guilty. But if during this period you don’t violate the law, your record’s clear, the same as if you’d never been in Court with a charge against you. Do you understand that? [FIRST CO-DEFENDANT]: Yes, I understand. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: But, like I say, if they test you and you test positive for marijuana or any other kind of drug, then you come back into Court and you go off automatically for 30 years. [SECOND CO-DEFENDANT]: I understand. [FIRST CO-DEFENDANT]: I understand. THE COURT: And LSD, y’all didn’t get to use any of it, did you? [SECOND CO-DEFENDANT]:. No, sir. THE COURT: I mean, see, that’s an old drug they came out with years ago when they first started usin
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McMurray, Presiding Judge.
Defendant Parker was indicted for possession of lysergic acid diethylamide (“LSD”) with the intent to distribute. Following the denial of his motion to suppress evidence seized during a search of his person, Parker pleaded guilty and attempted to reserve the right to appeal the denial of the motion to suppress. Held:
The applicable procedure by which a criminal defendant may [188] plead guilty but reserve issues for consideration on appeal is enunciated in Mims v. State, 201 Ga. App. 277, 278 (1), 279 (410 SE2d 824). In Mims this court held that “trial courts have the discretion to accept or reject guilty pleas (Harris v. State, 175 Ga. App. 134, 135 (332 SE2d 685); Echols v. State, 167 Ga. App. 307, 308 (306 SE2d 324)), even when the guilty plea is part of a plea bargain. State v. Germany, 246 Ga. 455, 456 (271 SE2d 851). Therefore, it is the responsibility of the trial court to decide whether to exercise its discretion and accept a guilty plea on condition that appellate issues are preserved. . . . [Defendants have no right to condition guilty pleas upon reserving the appeal of any issues, and defendants may only reserve the appeal of such issues when the trial court, in the exercise of its discretion, allows a defendant to do so as part of a negotiated plea. Therefore, unless the trial court expressly approves the reservation of the issue and accepts the guilty plea with that condition, the issue is not preserved. . . .” (Emphasis supplied.) Id. at 278-279 (1).
In the case sub judice, it appears that not until after the trial court pronounced sentence and explained the conditions relating to defendant Parker’s sentence on probation is there any mention of a reservation of defendant Parker’s appeal of “a motion to suppress.” This is confirmed in the following quoted portion of the “pleas and sentences” transcript: “(Standing before the Court, Kenneth Andrew Parker, [first co-defendant], and [second co-defendant].) MR. STINES [assistant district attorney]: Your Honor, the State would call co-defendants Kenneth Andrew Parker, [first co-defendant], and [second co-defendant]. THE COURT: There’s three of these, and that’s Kenneth Andrew Parker, [first co-defendant], and [second co-defendant]? MR. STINES: That’s correct, Your Honor. MR. FOWLER [counsel for second co-defendant]: [Second co-defendant] is here, Your Honor. This is [second co-defendant]. THE COURT: Okay, each one of you raise your right hand. NOTE: (Defendants sworn in.) THE COURT: Now, each one of you understand what you’re charged with in this case? [FIRST CO-DEFENDANT]: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. [DEFENDANT] PARKER: Yes, sir. THE COURT: And you’re charged with violation of the Georgia Controlled Substance Act, is that right? [SECOND CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [FIRST CO-DEFENDANT]: Yes, sir. THE COURT: Now, you’ve had time to talk with your lawyer about this case, each one of you? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: And your lawyer is physically present with you in court at this time? [FIRST CO-DEFENDANT]: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. THE COURT: And you understand that upon your plea of guilty, you could be imprisoned for as much as 30 years? [FIRST CO-DE[189] FENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: Are you able to hear and understand my statements and questions? [SECOND CO-DEFENDANT]: Yes, sir. [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. THE COURT: Are you now under the influence of alcohol, drugs or medication? [SECOND CO-DEFENDANT]: No, sir. [FIRST CO-DEFENDANT]: No, sir. MR. PARKER: No, sir. THE COURT: Do you know that you have a right to enter a plea of not guilty, be faced by your accusers, examine them, and present witnesses and other evidence in your behalf? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: You understand that you have a right to plead not guilty to every charge filed against you? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: And you understand that if you plead not guilty, you have the right to testify or not to testify, as you choose; that you cannot be required to testify and that if you do not testify, the Jury cannot take that as evidence against you? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: Do you understand that if you plead not guilty, you would be presumed to be innocent and that before you can be convicted, the prosecution will have the duty of proving your guilt beyond a reasonable doubt? [FIRST CO-DEFENDANT]: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. THE COURT: Now, has anyone made any promises or threats to you to cause you to plead guilty? [FIRST CO-DEFENDANT]: No, sir. MR. PARKER: No, sir. [SECOND CO-DEFENDANT]: No, sir. THE COURT: You can now let them enter their plea at this time. Now, you’re pleading guilty freely and voluntarily? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. STINES: Your Honor, the facts would show in this case that back on the 10th day of September, 1992, agents from the Moultrie/Colquitt County Drug Squad made a stop up at the Zippy Mart in Doerun, found three persons involved, that they had 136 hits of LSD on them. They made statements indicating that the intent was to distribute this. This happened in Colquitt County, Georgia. NOTE: (Defendants enter their pleas of guilty.) MR. STINES: Your Honor, as to case number 93-CR-34, the Defendants Kenneth Andrew Parker, [first co-defendant], and [second co-defendant], have all entered their guilty pleas by signing the place provided on the back of the indictment along with their attorneys, Mr. Fowler for [second co-defendant], Mr. Mullís for Mr. Parker, and Mr. May for [first co-defendant]. THE COURT: Okay. Now, it’s the sentence of the Court that each one of you serve 10 years and I’m going to let you servé thát ten years on probation, provided you pay a fine of [190] $3,000. And also, there will be a search clause in there that they can stop you and search you at any time, any law enforcement officer, or the probation officer at any time can bring you in for a search. They can also test you to see if you’re using drugs at any time. Now, here again, on the two — not all of them are first offender, are they? MR. MULLIS: No, sir. The two young lady’s [sic] are. THE COURT: Now, you heard me tell the other ones awhile ago about that first offender. You’re only getting 10 years but if during that 10 year period they catch you using drugs, then they bring you into court and you get 30 years on this charge; not on the new charge but on this one here. You just go off to prison for 30 years, no trial or anything. I just adjudicate you guilty. But if during this period you don’t violate the law, your record’s clear, the same as if you’d never been in Court with a charge against you. Do you understand that? [FIRST CO-DEFENDANT]: Yes, I understand. [SECOND CO-DEFENDANT]: Yes, sir. THE COURT: But, like I say, if they test you and you test positive for marijuana or any other kind of drug, then you come back into Court and you go off automatically for 30 years. [SECOND CO-DEFENDANT]: I understand. [FIRST CO-DEFENDANT]: I understand. THE COURT: And LSD, y’all didn’t get to use any of it, did you? [SECOND CO-DEFENDANT]:. No, sir. THE COURT: I mean, see, that’s an old drug they came out with years ago when they first started using it, it started out in California. That just destroys your brain, if you ever get — I mean, you just don’t know nothing, you’re just crazy the rest of the time. You don’t give anybody else any trouble because you don’t have sense enough to give anybody trouble with LSD. That’s the way it works because I’ve had some around me over there that tried it and they’re just crazy the rest of the time until they die, is what happens. Of course, most of them’s not around now because at the time, it’ll kill you, is what it’ll do. You don’t have to use it but one or two times and that’s what it does to you. Now, you’re working and doing good. Also, you’ve got to reimburse the county for your attorney fees. Do you understand that? [FIRST CO-DEFENDANT]: Yes, sir. MR. PARKER: Yes, sir. [SECOND CO-DEFENDANT]: Yes, sir. MR. MULLIS: Your Honor, also, I talked to the District Attorney. This plea was contingent on reserving our right to appeal a motion to suppress we’d had earlier and I was wanting to get that on the record also. I am also going to need to get that transcript. I don’t know if I need to do a motion to you to get the transcript of that hearing. THE COURT: That’ll be all right. But now you’re working, you’re doing all right, and you need to forget about drugs. MR. MULLIS: Thank you, Your Honor. MR. FOWLER: Thank you, Your Honor. MR. MAY: Thank you, Your Honor. . . . (Plea and Sentencing Concluded.)” (Emphasis supplied.)
The question presented is: Did the trial court in stating “[t] hat’ll [191] be all right” comply with the procedural mandate of Mims v. State, 201 Ga. App. 277, 278 (1), 279, supra, and “expressly [approve] the reservation of the issue and [accept] the guilty plea with that condition . . .” or was the trial court responding to defense counsel’s statement “I don’t know if I need to do a motion to you to get the transcript of that hearing?” This Court cannot presume from the record before us, in the case sub judice, that the trial court has made and expressly set forth the critical determination that it “approves the reservation of the issue and accepts the guilty plea with that condition.”
Due to the ambiguity on the face of the record in the case sub judice, the trial court’s judgment as to defendant Parker must be vacated, his guilty plea vacated and the case remanded to the trial court for a plea hearing at which the trial court may clearly exercise its discretion in accordance with Mims v. State, 201 Ga. App. 277, 278 (1), 279, 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. Otherwise, defendant must be provided a trial before a jury or the court sitting without a jury, followed by a new appeal if necessary. In any event, the trial court shall assure that an appropriate record of the proceedings be preserved for any appellate review.
Judgment vacated and case remanded.
Pope, C. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. Beasley, P. J., Cooper and Blackburn, JJ., dissent.