Willie Tyler v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

WILLIE TYLER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-107

OCTOBER 25, 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 98-2617 & CR 99-1064]

HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

AFFIRMED

This is a probation-revocation case. On October 2, 1998, the appellant, Willie Tyler, pleaded guilty to the offense of possession of a controlled substance, and the trial court sentenced him to a three-year term of probation. The State filed a petition to revoke appellant's probation alleging that, on December 22, 1998, he violated the terms of his probation by committing the offenses of aggravated robbery and theft of property. The State also filed an information charging appellant with aggravated robbery, theft of property, possession of a firearm by certain persons, and two counts of aggravated assault. On July 8, 1999, at the conclusion of appellant's trial, a jury acquitted appellant of the five charged offenses, but, after a hearing, the trial court revoked his probation and sentenced him to six years' imprisonment in the Arkansas Department of Correction. On appeal, appellant arguesthat there was insufficient evidence that he violated the terms and conditions of his probation. We affirm because appellant failed to preserve his argument for appellate review.

Appellant's challenge to the sufficiency of the evidence is barred. In order to preserve a challenge to the sufficiency of the evidence supporting revocation for appellate review, an appellant must make a specific motion for dismissal at the close of all the evidence. Miner v. State, 342 Ark. ___, ___ S.W.3d ___ (October 12, 2000). Rule 33.1 of the Arkansas Rules of Criminal Procedure was amended effective April 8, 1999, to require a motion for directed verdict in a non-jury trial and now states in part:

(b) In a non-jury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal.

At the close of the evidence in appellant's revocation hearing, appellant failed to move for dismissal. Therefore, we are precluded from reaching the merits of his argument.

However, even if we were to reach the merits, we would affirm because the trial

court's decision to revoke appellant's probation is not clearly against the preponderance of the evidence. We recognize that in revocation proceedings, the State is only required to prove a violation of a condition of probation by a preponderance of the evidence. Hyde v. State, 59 Ark. App. 131, 953 S.W.2d 911 (1997).

Affirmed.

Robbins, C.J., and Meads, J., agree.