ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

SHAWN BARBEE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-486

April 11, 2001

APPEAL FROM THE ASHLEY

COUNTY CIRCUIT COURT

[CR96-30-1]

HONORABLE DON EDWARD

GLOVER, CIRCUIT JUDGE

AFFIRMED

On March 17, 1997, appellant, Shawn Barbee, pleaded guilty to three counts of negligent homicide and was sentenced to five years' probation. One of the conditions of his probation was that his driver's license was revoked for a period of three years. On January 10, 2000, the State filed a petition to revoke Barbee's probation, alleging that he had been driving during the period when his license was revoked. At the revocation hearing, Barbee admitted that he had driven a vehicle, but he asserted that he had driven only after he was informed by the Chicot County Revenue Office that his driving record was clear and he was issued a valid driver's license. The trial judge found that Barbee had violated the terms of his probation, revoked the probation, and sentenced him to six years' incarceration in the Arkansas Department of Correction. Barbee now appeals, arguing that the trial court was clearly erroneous in revoking his probation because the Arkansas Department of Finance and Administration had reinstated his driver's license.

A trial court may revoke a defendant's probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his probation. Ark. Code Ann. § 5-4-309(d) (Supp. 1999). In probation revocation proceedings, the State has the burden of proving that appellant violated the terms of his probation, as alleged in the revocation petition, by a preponderance of the evidence, and this court will not reverse the trial court's decision to revoke probation unless it is clearly against the preponderance of the evidence. Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d 826 (1998).

The facts upon which appellant's probation was revoked are as follows. In December 1998, appellant went to the Chicot County Revenue Office to obtain an identification card in order to get his marriage license. The employee waiting on him informed him that he had a "clean" driving record; therefore, he could only get a driver's license, not an identification card. Because of the conditions of his probation, Barbee asked the clerk to check his record again; she did so and informed him that his driving privileges were not suspended. The State of Arkansas then issued appellant a valid driver's license. At the revocation hearing, the revenue office employee who issued Barbee his driver's license testified that the information in the computer could not be manipulated and that she had no choice but to issue a driver's license to Barbee because his license was not suspended.

On October 21, 1999, Barbee was the driver of a car stopped by Lake Village Police Officer Jason Gregg based on a report of a suspected drunken driver. Officer Gregg testified that he checked Barbee's license, determined that it was valid, found no alcoholic beverages in the vehicle, and allowed him to drive away. Nevertheless, the State filed its petition to revoke Barbee's probation based upon the fact that his driver's license was revoked.

Regrettably, we must affirm the case based upon a procedural matter. On April 8, 1999, our supreme court revised Rule 33.1 of the Arkansas Rules of Criminal Procedure, and such changes were effective immediately. In re Ark. R. Crim. P. 33.1, 337 Ark. 621 (1999). Rule 33.1(b) of the Arkansas Rules of Criminal Procedure (2000) now requires that if a motion for dismissal is to be made in a nonjury trial, it shall be made at the close of all of the evidence (emphasis added). The failure to challenge the sufficiency of the evidence in the manner required by Rule 33.1(b) "will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the judgment or verdict." Ark. R. Crim. P. 33.1(c) (2000). In Miner v. State, 342 Ark. 283, 27 S.W.3d 280 (2000), our supreme court held that this rule is applicable to revocation proceedings.

The State contends that Barbee's motions for directed verdict and dismissal were untimely and cites Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994), in support of this proposition. We must agree. Although Thomas was a jury trial, the supreme court declined to address the appellant's sufficiency of the evidence argument because he failed to renew his motion for a directed verdict until the jury had retired to deliberate, stating that "the whole case had long since closed, and the jury had long since retired." 315 Ark. at 507, 868S.W.2d at 485. Similarly, this court has held that a motion for dismissal pursuant to Rule 33.1(c) was not timely in a nonjury trial when made as part of or during closing argument. J.R. v. State, ___ Ark. App. ___, ___ S.W.3d ___ (April 4, 2001). In the present case, not only did appellant fail to make a motion for directed verdict or dismissal prior to the trial judge's decision to revoke his probation, he did not make his motions until after the trial judge sentenced him to six years in the Arkansas Department of Correction. Because appellant's motions were not timely made, the court is procedurally barred from addressing his argument.

Affirmed.

Pittman and Robbins, JJ., agree.