Eddie David Swanigan v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CACR00-285

OCTOBER 31, 2001

EDDIE DAVID SWANIGAN AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT v. [CR99-2664]

STATE OF ARKANSAS HON. JOHN W. LANGSTON,

APPELLEE CIRCUIT JUDGE

AFFIRMED

In a bench trial, Eddie David Swanigan was convicted of residential burglary and theft of property. The court found that he had four previous felony convictions and sentenced him to twenty years in the Arkansas Department of Correction for the residential-burglary offense and one year in the Pulaski County jail for the theft-of-property offense. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Swanigan's counsel filed a motion to withdraw on the grounds that the appeal is without merit. The motion was accompanied by a brief referring to everything in the record that might arguably support an appeal. The clerk of this court furnished Swanigan with a copy of counsel's brief and notified him of his rightto file pro se points for reversal. Swanigan did not file points for reversal. We hold that there were no adverse rulings at trial that would support a meritorious appeal.

The only ruling adverse to Swanigan was the trial court's denial of his motion to dismiss for lack of sufficient evidence. Arkansas Rule of Criminal Procedure 33.1(b) provides:

In a nonjury 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 the evidence.

The issue of sufficiency of the evidence was not preserved for appellate review. At the close of the State's case, Swanigan made the following motion: "We'd move to dismiss on the basis of we feel the State's not met its burden of proof by a sufficiency of the evidence." Swanigan's motion fails to state specific grounds for dismissal; therefore, it did not comply with the specificity requirement of Rule 33.1. Also after the court denied the motion, Swanigan testified in his own behalf. At the conclusion of all the evidence, he failed to renew his motion. Because of Swanigan's failure to comply with Rule 33.1, the issue of sufficiency of the evidence was not preserved for appellate review.

The record has been reviewed in accordance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. We conclude that there were no errors with respect to rulings adverse to Swanigan and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Pittman and Vaught, JJ., agree.