Timothy Bly Osborne v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION I

TIMOTHY BLY OSBORNE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-750

September 5, 2001

APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT COURT

[NO. CR91-76A]

HON. JOHN D. KEMP, JR.,

CIRCUIT JUDGE

AFFIRMED

The appellant was convicted of burglary and sentenced to eight years' supervised probation. The State subsequently filed a petition to revoke his probation alleging that appellant had violated the conditions of his probation. After a bench trial on January 6, 2000, appellant was found to have violated the conditions of his probation and was sentenced to five years' imprisonment. From that decision, comes this appeal.

Appellant's sole point for reversal is that the evidence is insufficient to support the trial court's finding that he violated the conditions of his probation. We are unable to address this issue, however, because there is no indication that appellant moved to dismiss on the grounds of insufficiency of the evidence. See Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999).

As modified in 1999, Rule 33.1 of the Arkansas Rules of Criminal Procedure requires a defendant to challenge the sufficiency of the evidence in both jury and nonjury trials. Rule 33.1 applies to revocation hearings. Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000). In the absence of any indication in the abstract to show that the trial judge was afforded an opportunity to address the issue of sufficiency, we are constrained to hold that appellant's sufficiency argument cannot be addressed, and we must affirm. See Jones v. State, 327 Ark. 85, 937 S.W.2d 633 (1997); Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994).

Affirmed.

Hart and Roaf, JJ., agree.