ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

JOSEPH A. STOCKS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1313

SEPTEMBER 5, 2001

APPEAL FROM THE WHITE

COUNTY CIRCUIT COURT

[NO. CR 2000-118]

HONORABLE WILLIAM PICKENS

MILLS, CIRCUIT JUDGE

AFFIRMED

John B. Robbins, Judge.

Appellant Joseph A. Stocks was convicted of driving while intoxicated, third offense, and was sentenced to one year in the White County Detention Center with six months suspended. In addition, he received a fine of $1200.00. Mr. Stocks now appeals.

For reversal, Mr. Stocks does not challenge his DWI conviction, but argues that the trial court erred in finding him guilty of a third offense rather than a second offense. He contends that, as applied to the facts of this case, enhancement of his penalty violates his due process rights and the prohibition against ex post facto law. We affirm.

Mr. Stocks committed the DWI in the present case on

August 27, 1999. His two previous DWI offenses were committed on August 26, 1997, and September 15, 1995. He concedes that the August 26, 1997, DWI could be considered for enhancement purposes because it was committed within three years of his current offense. However, he argues that the September 15, 1995, offense was erroneously used to enhance his punishment because it was committed more than three years earlier.

Arkansas Code Annotated section 5-65-111(b) (Repl. 1997) provided that, for enhancement purposes, the State was allowed to use prior DWI offenses from the past three years. However, the statute was revised and currently provides that the State may use DWI offenses that occurred within five years, as long as the current offense did not occur before July 30, 1999. See Ark. Code Ann. § 5-65-111(b) and (c) (Supp. 1999). Mr. Stocks argues that his September 15, 1995, DWI offense expired under previous law on September 15, 1998, and cannot be revived by the revision enacted by the legislature in 1999. He asserts that the statutory amendment was substantive, rather than procedural, and that its retroactive application violated his constitutional rights.

We reject Mr. Stocks's contention that his sentenceenhancement constituted a prohibited application of an ex post facto law. This precise argument was raised and rejected in our recent opinion in Berry v. State, 74 Ark. App. 141, 45 S.W.3d 435 (2001). In that case, we relied on Sims v. State, 262 Ark. 288, 556 S.W.2d 141 (1977), and held that, since the appellant committed his DWI after the amendment became effective on July 30, 1999, he was on notice that his offense would subject him to the increased penalties provided for in the amendment. Similarly, in the instant case, Mr. Stocks was on notice of the new provision that additional offenses would subject him to the increased penalties when he committed his most recent offense on August 27, 1999. Therefore the trial court's enhancement of his conviction to third-offense DWI was not error.

Mr. Stocks also argues that his due process rights were violated because the result reached in this case "is unfair and violates an agreement the State had implicitly made with appellant to allow the State to use a DWI for enhancement purposes against him which the State had stated through legislature it would not use against him." However, Mr. Stocks's due process argument is unsupported by any authorityor convincing argument, and for that reason it need not be considered on appeal. See Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000). Nevertheless, our supreme court has stated that due process requires only fair warning, and not actual notice. See Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). Mr. Stocks was given adequate warning that the amendment to the DWI enhancement statute applied to offenses committed after July 30, 1999, because the amendment itself indicates that only offenses that are committed prior to that date are to be decided under prior law.

Affirmed.

Bird and Vaught, JJ., agree.