NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE JOSEPHINE LINKER HART

DIVISION I

KEVIN BLAKELEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-356

January 16, 2002

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR 95-198]

HONORABLE FLOYD G. ROGERS,

JUDGE

AFFIRMED

Appellant, Kevin Blakeley, pleaded guilty to the crime of theft by receiving and was placed on probation for five years on September 21, 1995. His probation was, in part, conditioned upon his not violating state law and not possessing or using marijuana. A petition to revoke was filed by the State on February 15, 2000, alleging that appellant had violated his terms of probation by possessing marijuana. After a hearing on October 9, 2000, the court revoked appellant's probation and sentenced him to five years' imprisonment in the Arkansas Department of Correction, with three years suspended.

Appellant's counsel seeks to withdraw as his counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. R. Sup. Ct. 4-3(j)(1)(2001). Alleging that appellant's appeal is without merit, counsel submitted a brief and abstract that listed all rulings adverse to appellant and explained why each adverse ruling does not present ameritorious ground for reversal, as well as an abstract containing all the adverse rulings and other pertinent parts of the

record. Although the appellant was furnished with a copy of counsel's brief and notification of his right to file pro se points for reversal within thirty days, appellant failed to file such points.

There were only two rulings adverse to appellant. First, appellant argued that the State could not revoke his probation because the probationary period expired before his probation was revoked. We note, however, that the petition to revoke probation was filed within the period of his probation. Arkansas Code Annotated section 5-4-309(e) (Supp. 2000) provides as follows:

The statute clearly permits a court to revoke probation after the expiration of the probationary period so long as the petition to revoke was filed within that period. Thus, there is no merit to this issue on appeal.

The second adverse ruling was the court's revocation of appellant's probation. If the trial court finds by a preponderance of the evidence that a defendant has failed to comply with a condition of his probation without excuse, the trial court may revoke the defendant's probation. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). In a revocation proceeding, the burden is on the State to prove the violation of a condition of the suspension by a preponderance of the evidence, and we will affirm the court's decision unless itsfindings are clearly against the preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). We conclude that the trial court's revocation of appellant's probation is not clearly against the preponderance of the evidence.

The State, in its petition and at the hearing, alleged that appellant violated the conditions of his probation by possessing marijuana. The arresting officer testified that he detained appellant after observing appellant fail to obey a stop sign and halt his vehicle in the middle of an intersection. The officer further testified that after he detained appellant, he obtained appellant's consent to search the vehicle. Although the vehicle did not belong to appellant, his clothes and paperwork were scattered throughout the vehicle, and he admitted at the hearing that he regularly borrowed the vehicle once or twice a month. During the search, the officer found next to the driver's seat and in plain view of appellant, a cannister containing viable marijuana seeds.

This case is readily distinguishable from our recent decision in Polk v. State, 75 Ark. App. 338, 57 S.W.3d 781 (2001). There, we held that sufficient evidence existed to establish that the defendant constructively possessed the cocaine found behind the driver's side sun visor in a vehicle borrowed by appellant, but that the evidence was not sufficient to establish that he constructively possessed the handgun underneath the rear passenger floor mat. In order to show that a defendant has possession of contraband, the State must show that the defendant exercised control or dominion over it; however, actual or exclusive possession is not required. Id. at 342. Constructive possession, which may be implied by joint control, may be sufficient and can be established by the exercise of care, control, and managementof the contraband by the accused, and the knowledge of the accused that the matter possessed was contraband. Id. Although the defendant in the present case, just as the defendant in Polk, did not own the vehicle he was driving, the two situations are distinguishable. In Polk, the State had the burden of proving there was substantial evidence to support a criminal conviction. Id. Here, the State only has to prove by a preponderance of the evidence that the appellant violated his probation. Barbee, supra. Also, in Polk, there was no nexus linking the defendant to possession of the handgun because he had only borrowed the car for a short period of time, and the gun was under the floor mat in the backseat of the car and not in plain view. In the present case, appellant admitted that although it did not belong to him, he regularly drove the vehicle. Further, his personal belongings were scattered throughout the vehicle, and according to the arresting officer, the cannister containing the marijuana seeds was in plain view "between the seats ... right next to the driver." Thus, we conclude that the trial court was not clearly erroneous in its determination that the preponderance of the evidence established a nexus linking appellant to the contraband.

Finally, we note that appellant's revocation hearing was not held within sixty (60) days of his arrest. Arkansas Code Annotated section 5-4-310(b)(2) (Repl. 1997) provides that "[t]he revocation hearing shall be conducted by the court that suspended imposition of sentence on the defendant or placed him on probation within a reasonable period of time, not to exceed sixty (60) days, after the defendant's arrest." Appellant's counsel properly concluded that the issue was not preserved for appellate review because the argument wasnot raised below. Cook v. State, 59 Ark. App. 24, 952 S.W.2d 677 (1997). We take this opportunity to remind practitioners that this particular issue must be raised below in order to be preserved for appeal.

After reviewing the record and counsel's brief and abstract, we agree that a meritorious claim does not exist to provide a ground for reversal on the rulings adverse to appellant. Therefore, the request of counsel for appellant to be relieved is granted, and appellant's conviction is affirmed.

Affirmed.

Stroud, C.J., and Neal, J., agree.