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Buck v. State10/29/2003
NOT DESIGNATED FOR PUBLICATION
Gary Mark Buck was convicted in Pulaski County Municipal Court of driving while intoxicated, careless driving, refusing a breath test, disorderly conduct, and endangering the welfare of a minor. He was fined $750 and his driver's license was suspended for six months. He appealed his conviction to Pulaski County Circuit Court, where he was tried before the bench. The circuit court convicted him of DWI, disorderly conduct, refusal to submit to chemical test, and careless driving. He was sentenced to twelve months in jail on the DWI conviction and to thirty days for disorderly conduct. Buck now appeals his circuit-court conviction, raising two points. He contends that there was insufficient evidence to support the conviction of driving while intoxicated, and that the trial court erred by imposing a sentence exceeding the one imposed by the municipal court without setting forth specific reason. We affirm both points.
Sufficiency of the Evidence
Buck moved for a directed verdict when the State rested its case against him, and the motion was denied. The defense then presented its case through the testimony of Buck and his girlfriend, who was with him at the time of his arrest. Buck did not renew his motion for CACR03-238a directed verdict at the conclusion of all the evidence.
Rule 33.1(b) of Ark. R. Crim. Pro. (2003) provides:
(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 non-jury 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.
A defendant's failure to make a motion for dismissal at the time specified in Rule 33.1 constitutes a waiver of any question pertaining to the sufficiency of the evidence. See J. R. v. State, 73 Ark. App. 194, 40 S.W.3d 342 (2001). Because Buck failed to renew his motion for dismissal at the close of all the evidence, we will not consider his challenge to the sufficiency of the evidence on appeal.
Imposition of Sentence by the Circuit Court
Buck complains that his alleged use of foul language to the arresting officer was the only reason given by the circuit court for increasing his sentence from that given by the municipal court. He cites Marshall v. State, 265 Ark. 302, 578 S.W.2d 32 (1979), and Hudgens v. State, 324 Ark. 168, 919 S.W.2d 939 (1996), for the principle that a more severe sentence may not be imposed because of any vindictiveness of the court arising from an appeal of the first sentence. We note, however, that Buck acquiesced in the trial court's authority to impose a sentence upon him more severe than that previously imposed in municipal court.
The record reveals that the following colloquy took place between defense counsel and the circuit court before sentence was pronounced:
Mr. Vess: I'd ask the Court to sentence him as the lower court did.
The Court: I'm sorry?
Mr. Vess: I'd ask for the same sentenc
Page 1 2 Arkansas DUI Attorneys
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