Miner v. State

• Decision Date: 12 October 2000
• Docket Number: 00-564
• Citation: 28 S.W.3d 280
• Parties: Teresa Lynn MINER v. STATE of Arkansas CR 00-564 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Teresa Lynn MINER v STATE of Arkansas

CR 00-564 ___ S.W.3d ___

Opinion delivered October 12, 2000

Supreme Court of Arkansas

Appeal from Sebastian Circuit Court; Mark Hewitt, Judge; affirmed; Arkansas Court of Appeals affirmed.

1. Appeal & error -- petition for review -- matter reviewed as if originally filed in supreme court. -- When the supreme court grants a petition to review a case decided by the court of appeals, it reviews it as if it had been filed originally in the supreme court.

2. Criminal procedure -- revocation proceeding -- defendants not entitled to full panoply of rights. -- Defendants in a revocation proceeding are not entitled to the full panoply of rights that attend a criminal prosecution.

3. Criminal procedure -- revocation proceeding -- evidentiary rules not applied strictly. -- Certain rules of evidence, including the hearsay rule, do not apply strictly to a revocation hearing as they would in a trial.

4. Criminal procedure -- revocation proceeding -- burden of proof varies. --The burden of proof varies in a revocation proceeding; in a criminal trial, the State must prove its case beyond a reasonable doubt, but the burden of proof in a revocation proceeding is by a preponderance of the evidence.

5. Criminal procedure -- revocation proceeding -- speedy-trial rules vary. --Speedy-trial rules vary between criminal trials and revocation proceedings.

6. Appeal & error -- unsupported arguments not considered. -- The supreme court does not consider arguments without convincing argument or citation to authority in support, where it is not apparent without further research that these arguments are well-taken.

7. Appeal & error -- arguments raised for first time on appeal not addressed. -- The supreme court will not address arguments raised for the first time on appeal.

8. Criminal procedure -- revocation proceeding -- defendant required to move for dismissal to preserve sufficiency question. -- The supreme court held that Ark. R. Crim. P. 33.1, as amended, requires a defendant in a revocation proceeding to move for dismissal, stating the specific grounds therefor, in order to preserve the question of the sufficiency of the evidence to support the verdict or judgment.

9. Criminal procedure -- probation revocation affirmed where appellant failed to move for dismissal -- appellate court's decision affirmed. -- Where appellant failed to make a specific motion for dismissal, the supreme court affirmed both the trial court's order revoking her probation and the decision of the court of appeals. [wbj]

R. Paul Hughes III, Sebastian County Public Defender's Office, for appellant.

Mark Pryor, Att'y Gen., by: Leslie Fisken, Ass't Att'y Gen., for appellee.

W.H. "Dub" Arnold, Chief Justice.

Appellant, Teresa Lynn Miner, brings the instant appeal challenging the Sebastian County Circuit Court's order revoking her probation and sentencing her to five years' imprisonment in the Arkansas Department of Correction with an additional five years' suspended sentence. Miner initially appealed the decision to the Arkansas Court of Appeals and argued that the trial court erred in granting the State's petition because there was insufficient evidence that she had violated the terms and conditions of her suspended sentence. In an opinion dated April26, 2000, the Court of Appeals affirmed the circuit court's order. See Miner v. State, 70 Ark. App. 142, 15 S.W.3d 356 (2000). Pursuant to Ark. R. Sup. Ct. 1-2(e) and 2-4 (2000), we granted appellant's petition for review. The State contends that Miner's arguments are procedurally barred by Ark. R. Crim. P. 33.1. We agree, and we affirm the trial court's order revoking Miner's probation.

Background

On March 3, 1993, Miner pled guilty to felony overdraft and received a five-year suspended sentence with two years' probation. Additionally, she was ordered to make restitution in the amount of $2,243.94 and to pay fines and costs of $639.75. Approximately two years later, on March 16, 1995, Miner again pled guilty to felony overdraft, received a five-year suspended sentence and two years' probation, and was ordered to pay $2,638.58 in restitution and $1,147.75 in fines and costs. After Miner failed to make several payments, including monthly probation fees and restitution payments, and after she committed another offense of felony overdraft, the State petitioned to revoke her 1993 and 1995 suspended sentences. Following an August 11, 1999 hearing, the trial court found that Miner had violated the terms and conditions of her probation and granted the State's petition to revoke. She was sentenced to five years' imprisonment in the Arkansas Department of Correction with an additional five years' suspended sentence.

Following the appellate court's affirmance, we granted Miner's petition for review.¹ When we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)). We first consider whether Rule 33.1 applies in a revocation proceeding and procedurally bars Miner's appeal.

Rule 33.1

Appellant's first point on appeal queries whether Ark. R. Crim. P. 33.1 applies in the context of a revocation proceeding. The relevant portions of Rule 33.1 provide:

(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. . . .

(Emphasis added.)

Miner's argument that Rule 33.1 does not apply to revocation proceedings amounts to a discussion of the ways that trials differ from revocation hearings. For example, defendants in a revocation proceeding are not entitled to the "full panoply of rights that attend a criminal prosecution." Morrissey v. Brewer, 408 U.S. 471 (1972). Certain rules of evidence, including the hearsay rule, do not apply strictly to a revocation hearing as they would in a trial. Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981). Further, the burden of proof varies. In a criminal trial, the State must prove its case beyond a reasonable doubt, but the burden of proof in a revocation proceeding is "by a preponderance of the evidence." Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Finally, speedy-trial rules vary between the two proceedings. Dority v. State, 329 Ark. 631, 951 S.W.2d 559 (1997). In light of these distinctions and the language of Rule 33.1, Miner claims that the rule is limited on its face to "trials." Miner urges us to construe the rule by giving the words their plain meanings and conclude that it cannot apply to revocation hearings. See Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993).

In response, the State argues that Miner is procedurally barred from challenging the sufficiency of the evidence because she failed to move for a directed verdict at either the close of the State's case or at the close of all evidence as required by Rule 33.1. The State reasons that the rule is clearly applicable because revocation proceedings are "criminal cases" and the Arkansas Rules of Criminal Procedure "govern the proceedings in all criminal cases in the Supreme Court and in circuit courts of the State of Arkansas." Ark. R. Crim. P. 1.2 (2000). Moreover, Ark. R. Crim. P. 1.7 (2000) proclaims that the Rules of Criminal Procedure "shall apply to all criminal proceedings commenced upon or after the effective date hereof, and all appeals and other post-conviction proceedings relating thereto."

Further, the State explains that the rule should apply because a judge acts as fact-finder in a revocation hearing just as he would in a nonjury trial; therefore, the two proceedings are equivalent for purposes of Rule 33.1. Notably, in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995), we considered this argument and reached a different conclusion. In fact, we determined that directed-verdict motions were superfluous when there is a trial without a jury. Strickland, 322 Ark. at 317, 909 S.W.2d at 320-21. We explained that the judge would only be directing his own verdict, and the entire purpose of a bench trial is to have the judge, rather than a jury, ascertain the sufficiency of the evidence to convict. Id. Of course, at the time of our decision in Strickland, the procedural rule did not require a defendant to move for dismissal in nonjury-trial cases. Given that fact, we reasoned that where a judge is sitting as the trier of fact and would be sufficiently aware of the evidence and the elements of the crime, no such motion would be necessary. Id., 322 Ark. at 318, 909 S.W.2d 321. In sum, we held that a defendant in a nonjury trial need not challenge sufficiency of evidence, via a directed-verdict motion, to preserve the issue for appeal. Id.

However, Rule 33.1 was amended in 1999 by per curiam opinion. In Re: Rule 33.1, Rules of Criminal Procedure, 337 Ark. Appx. 621 (1999). This recent amendment resolves the issue before us and compels us to agree with the State. The Reporter's Note to the 1999 amendment indicates that subsection (a) applies to jury trials, subsection (b) applies to nonjury trials, and subsection (c) applies to both. The comment also states that in...