Smith.E2 v. State (Majority)

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.t Cite as 201,2 Ark. App. 618 ARKANSAS COURT OF APPBALS DIVISION I tro. CACR1,2-705 opinionDelivered October 31., 201,2 EDWARD VINCENT SMITH APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, FIFTH DIVISION [NO. CR-10-s36] STATE OF ARKANSAS HONORABLE WENDELL GRIFFEN, APPELLEE JUDGE AFFIRMED WAYMOND M. BROWN, Judge The Pulaski Counry Circuit Court convicted appellant Edward Smith of criminal attempt to commit capital murder, aggravated robbery, aggravated residential burglary, two counts of battery in the first degree, and theft of property. Smith was sentenced to an aggregate of 298 months' imprisonment. This sentence was to run concurrently with the sentence Smith received in an unrelated case. Smith argues on appeal that the evidence does not support his theft-of-property conviction, for which he was sentenced to ten years' imprisonment.'We affirm.1 rThis is the second time the case is before 'We us. initialiy dismissed Smith's appeal with instructions because he attempted to appeal two unrelated cases in a single appeal. See Smith u. State,2012 Ark. App.223. A person commits theft of properry if he takes or exercises unauthorized control over rhe properry of another person with the purpose of depriving the owner of the properry.2 It is a Class C felony if the properry's value is more than $500 but less than $2,500.3 Smith contends that the State failed to introduce any evidence that the stolen propeffy had any value at all. He acknowledges that he did not raise this issue to the trial court, but argues that we should address the merits ofhis argument for the first time on appeal because it deals with the issue of an illegal or otherwise void sentence. Rule 33.1(b) of the Arkansas Rules of Criminal Procedure provides that, in trial, "if a motion for dismissal is a bench to be made, it shall be made at the close of all of the evidence." Such motion must state the specific grounds for dismissal. Subsection (c) of Rule 33.1 states that failure to challenge the sufficiency of the evidence "at the times and in the manner required in subsection ... (b) above will constitute a waiver ofany question pertaining to the sufficiency of the evidence to support ... the judgment." Here, Smith made no such motion, but contends that since the State failed to provide any evidence "whatsoever" of the value of the property, he is allowed to collaterally attack it on direct appeal. It is well settled that an appellant may challenge an illegal sentence for the first time on appeal.u 'W.e view an issue of a void or illegal sentence as being an issue of 2Ark. Code Ann. 5-36-103 (Repl. 2006). $ tld. Under the new statute, it would have been a Class A misdemeanor. Code Ann. $ 5-36-103 (S"pp. 2011). oRichie See Ark. u. state,2009 Ark. 602,357 S.'W.3d 909 (citing Cantrell u. state,2009 Ark. 456, 343 S.'W.3d 591; Donaldson u. State, 370 Ark. 3, 257 S.'W.3 d 74 (2007); Sulliuan u. state,366 Ark. 183, 234 S.W.3d 295 (2006)). -2- subject-matterjurisdiction, which we may review whether or not an objection was made in the trial court.S A sentence is void or illegal when the trial court lacks authoriry to impose it.6 Smith's contention that this court may address his argument on appeal because it involves a void or illegal sentence, rather than the sufficiency of the evidence supporting his theft-of-properry conviction, is without merit. We hold that Smith's argument is not preserved for appellate review because he failed to make a motion for dismissal ofhis theft-of- properry charge on the ground that the State did not prove the value element of the offense. Therefore, we affirm. Affirmed. VAUGHT, CJ,, and WvNNE, J., agree. tRichie, supra. 6Id. -3-

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