Michael Chatt v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CACR01-62

SEPTEMBER 12, 2001

MICHAEL CHATT AN APPEAL FROM THE CRITTENDEN

APPELLANT COUNTY CIRCUIT COURT [CR-95-368R]

v.

STATE OF ARKANSAS HON. JOHN NELSON FOGLEMAN,

APPELLEE CIRCUIT JUDGE

AFFIRMED

Appellant, Michael Chatt, appeals the revocation of his suspended sentence by the Crittenden County Circuit Court. On appeal, he argues that the trial court erred in revoking his suspended sentence because no evidence of the written conditions were received into evidence. We interpret this argument as a challenge to the sufficiency of the evidence. We affirm because Chatt failed to preserve the argument for appellate review.

On April 11, 1996, Michael Chatt pled guilty to possession of a controlled substance. He received a five-year sentence in the Arkansas Department of Correction and five years' suspended sentence conditioned upon his good behavior. On August 4, 2000, the State filed a petition to revoke the suspended sentence because of allegations of domestic battery, possession and use of alcohol, public intoxication, and possession of a controlled substance. On October 9, 2000, a hearing was held on the petition to revoke Chatt's suspended sentence. During the hearing, the State presented evidence that Chatt had been involved in a fight with his girlfriend, Norma Edwards. Officer Brian Shelton, one of the arresting officers, testified that based on Chatt's slurred speech, unsteadiness, and the smell of alcohol on Chatt's person, he determined Chatt was intoxicated. Shelton also testified that while transporting Chatt to jail, he was informed that Chatt was concealing crack cocaine in his pants. He further testified that after removing Chatt from his patrol car, he found crack cocaine in the back seat.

During the hearing, Chatt admitted grabbing Ms. Edwards by the shirt. Chatt also testified that he had consumed three beers earlier that day. He denied having possession of the crack cocaine. Chatt's counsel failed to move for directed verdict at either the close of the State's or defense's case. The court found that Chatt had violated his suspended sentence and revoked the suspended sentence. The court sentenced Chatt to thirty-six months in the Arkansas Department of Correction.

Sufficiency of the Evidence

On appeal, Chatt argues the trial court erred in revoking the suspended sentence because no evidence of the written conditions were received into evidence. This argument is actually a challenge to the sufficiency of the evidence. In criminal proceedings, to preserve the issue of sufficiency of the evidence for appellate review, Arkansas Rule of Criminal Procedure 33.1(b) requires: "that in a non-jury trial a motion for directed verdict be made at the close of all the evidence. If the defendant moved for dismissal at theconclusion of the prosecution's evidence, then the motion must be renewed at the close of all the evidence." In Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000), our supreme court held that Rule 33.1 applied to revocation proceedings. Id. In Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000), handed down the same day as Thompson, the court held that in order to preserve the question of the sufficiency of the evidence to support the verdict or judgment, Rule 33.1 requires a defendant in a revocation proceeding to move for dismissal, stating the specific grounds therefor. Id.

On appeal Chatt argues Miner and Thompson do not apply because they were handed down three days after his hearing, therefore, he should be allowed to challenge the sufficiency of the evidence for the first time on appeal. We do not agree with his argument. On April 8, 1999, Arkansas Rule of Criminal Procedure 33.1 was amended so as to require motions for directed verdict in both jury and non-jury trials. Miner v. State, 70 Ark. App. 142, 15 S.W.3d 356 (2000); In re Rule 33.1, 337 Ark. Appx. 621. Because appellant failed to make a motion for directed verdict at the conclusion of the State's case and again at the conclusion of his case, he cannot challenge the sufficiency of the evidence for the first time on appeal. Amended Rule 33.1 went into effect immediately. See In re Rule 33.1, supra. Arkansas Rule of Criminal Procedure 1.7(a) states "[t]hese rules shall apply to all criminal proceedings commenced upon or after the effective date hereof, and all appeals and other post-conviction proceedings relating thereto." Because our supreme court views revocation hearings as criminal proceedings, as of April 8, 1999, a specific motion for directed verdict is required to preserve a sufficiency of the evidence challenge in revocation proceedings. See Thompson, supra. Chatt failed to make a motion for directed verdict at the conclusion of the State's case and again at the conclusion of his case. Hence, we do not reach the merits of his appeal and affirm. Accordingly, we affirm.

Stroud, C.J., and Griffen, J., agree.