MISSISSIPPI RULES OF CRIMINAL PROCEDURE

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Rule 1

General Provisions

Rule 2

Commencement of Criminal Proceedings

Rule 3

Arrest Warrant or Summons upon Commencement of Criminal

Proceedings

Rule 4

Search Warrants

Rule 5

Arrest and Initial Appearance

Rule 6

Preliminary Hearing

Rule 7

Counsel

Rule 8

Release

Rule 9

Trial Setting

Rule 10

Presence of Defendant, Witnesses, and Spectators

Rule 11

Change of the Place of Trial

Rule 12

Mental Examinations

Rule 13

The Grand Jury

Rule 14

Indictment

Rule 15

Arraignment and Pleas

Rule 16

Pre-Trial Motions

Rule 17

Disclosure and Discovery

Rule 18

Trial by Jury; Waiver; Selection and Preparation of Petit Jury;

Prohibited Disclosures

Rule 19

Trial

Rule 20

Duties of Court Reporters

Rule 21

Motions for Directed Verdict

Rule 22

Jury Instructions

Rule 23

Deliberations

Rule 24

Verdict

Rule 25

Post-Trial Motions

Rule 26

Judgment

Rule 27

Probation

Rule 28

Retention of Records and Evidence

Rule 29

Appeals from Justice or Municipal Court

Rule 30

Appeals from County Court

Rule 31

Post-Conviction Collateral Relief

Rule 32

Contempt

Rule 33

Subpoenas

Rule 34

Motions

MISSISSIPPI RULES OF CRIMINAL PROCEDURE

Rule 1 General Provisions

Rule 1.1 Scope.

These are the Mississippi Rules of Criminal Procedure and shall govern the

procedure in all criminal proceedings, from arrest through post-trial motions, in

all trial courts within the State of Mississippi, except as otherwise provided in

these Rules. They may be cited as MRCrP; e.g., MRCrP 1.

Comment

The Mississippi Rules of Criminal Procedure are designed to provide

comprehensive and uniform practice and procedure for criminal proceedings in

all Mississippi trial courts, including justice courts, municipal courts, county

courts, and circuit courts, except as otherwise provided. They replace practice

under formerly applicable provisions of the Uniform Rules of Circuit and

County Court and the Uniform Rules of Procedure for Justice Court.

“It is now well established that ‘the constitutional concept of separation

of powers dictates that it is within the inherent power of this Court to

promulgate procedural rules to govern judicial matters.’ Thus, when a statute

conflicts with this Court’s rules regarding matters of judicial procedure, our

rules control.” State v. Delaney, 52 So. 3d 348, 351 (Miss. 2011) (internal

citations omitted).

Rule 1.2 Purpose and Construction.

These Rules are to be interpreted to provide for the just and speedy

determination of criminal proceedings, to secure simplicity in procedure and

fairness in administration, to eliminate unjustifiable delay and expense, and to

protect the rights of individuals while protecting the public.

Rule 1.3 Computation and Enlargement of Time.

(a) Computation. In computing any period of time prescribed or allowed by

these Rules, by order of court, or by any applicable statute, the day of the act,

event, or default from which the designated period of time begins to run shall

not be included. The last day of the period so computed shall be included, unless

it is a Saturday, a Sunday, or a legal holiday, as defined by statute, or any other

day when the court clerk’s office is in fact closed, whether with or without legal

authority, in which event the period runs until the end of the next day which is

not a Saturday, a Sunday, a legal holiday, or any other day when the court

clerk’s office is in fact closed. In the event any legal holiday falls on a Sunday,

the next day shall be a legal holiday. When the period of time prescribed or

allowed is less than seven (7) days, intermediate Saturdays, Sundays, and legal

holidays shall be excluded in the computation.

(b) Enlargement. When by these Rules or by order of court an act is required

or allowed to be done at or within a specified time, the court may at any time:

(1) with or without motion, and for cause shown, order the period

enlarged if request therefor is made before the expiration of the

period originally prescribed or as extended by a previous order; or

(2) upon motion made after the expiration of the specified period,

permit the act to be done where failure to act was the result of

excusable neglect or good cause shown.

But a court may not, except as provided elsewhere in these Rules, extend the

time for making a motion for directed verdict, a motion for new trial, a motion

to vacate judgment, or for taking an appeal.

any action permitted by these Rules is not affected or limited by the existence

or expiration of a term of court. However, a criminal sentence cannot be

modified, altered, or vacated after the end of the term of court in which the

defendant was sentenced, except as provided by law.

(d) Motions Regarding Computation and Enlargement of Time. A written

motion, other than one which may be heard ex parte, and notice of the hearing

thereof, shall be served not later than five (5) days before the time fixed for the

hearing, unless a different period is fixed by these Rules or by order of the court.

Such an order may, for cause shown, be made on ex parte application. Service

shall be accomplished in accordance with Rule 1.7.

(e) Additional Time After Service by Mail. Whenever a party has the right or

is required to do some act or take some action within a prescribed period after

the service of a notice or other paper and the notice or paper is served by mail,

three (3) days shall be added to the prescribed period.

Comment

Rule 1.3 is derived from Rule 6 of the Mississippi Rules of Civil

Procedure.

Section (b) provides the court with wide discretion to enlarge various time

periods both before and after the actual termination of the allotted time, with the

notable exceptions of motions for directed verdict (Rule 21), motions for new

trial (Rule 25.1), motions to vacate judgment (Rule 25.2), or appeals (Rules 29

and 30). Importantly, such enlargement is to be made only for cause shown. If

the application for additional time is made before the period expires, the request

may be made ex parte; if it is made after the expiration of the period, notice of

the motion shall be given to other parties and the only cause for which extra

time can be allowed is "excusable neglect or good cause shown."

Section (c) does not abolish court terms. This Rule merely provides

greater flexibility to the courts in attending the myriad functions they must

perform, many of which were previously possible only during term time. The

Rule is also consistent with provisions elsewhere herein that prescribe a specific

number of days for taking certain actions rather than linking time expirations to

the opening day, final day, or any other day of a term of court. The rule

recognizes that judges do not have the authority to modify, alter, or vacate a

criminal sentence after the end of the term of court during which the sentence

was given, except as otherwise provided by law. See Creel v. State, 944 So. 2d

891 (Miss. 2006); Miss. Comm’n of Jud. Performance v. Russell, 691 So. 2d

929 (Miss. 1997).

Rule 1.4 Definitions.

Unless otherwise defined in a particular Rule, whenever they appear in these

Rules, the terms below shall have the following meanings:

(a) “Bill of information” means a written statement charging the defendant(s)

named therein with the commission of an indictable offense, made on oath,

signed, and presented to the court by the district attorney, without action by the

grand jury.

(b) “Capias” means a writ commanding law enforcement officers to take into

custody a defendant for whom a grand jury has returned an indictment.

(d) “Charging affidavit” means a written statement made upon oath before a

judge, clerk of the court, or other officer authorized by law to administer oaths,

setting forth essential underlying facts and circumstances constituting an offense

and alleging that the defendant committed the offense.

(e) “Indictment” is a written statement charging the defendant(s) named therein

with the commission of an indictable offense, presented to the court by a grand

jury, endorsed “A True Bill,” and signed by the foreperson. It includes a true

bill from the grand jury or a bill of information in lieu thereof.

(f) “Offense” means conduct for which a fine, a sentence to a term of

imprisonment, or the death penalty may be imposed pursuant to any law of this

State or by any law or ordinance of a political subdivision of this State.

(g) “Pro se” means a party who represents himself or herself and is not

represented by an attorney.

(h) “Prosecuting Attorney” means any municipal or county attorney, district

attorney, attorney general, or other attorney(s) acting under their specific

direction and authority, or such other person appointed or charged by law with

the responsibility for prosecuting an offense.

(i) “Search warrant” means a written order based upon a finding of probable

cause, in the name of the State, county, or municipality, signed by a judge

authorized by law to issue search warrants, directed to any authorized law

enforcement officer, commanding the officer to search for and seize a person

and/or thing.

(j) “Sentencing Court” includes the court which imposes the sentence and any

court to which jurisdiction has been transferred.

(k) “Summons” means a written order notifying an individual that he or she has

been charged with an offense and directing the individual to appear in court to

answer the charge.

Rule 1.5 Information on Each Pleading and Motion.

(a) Pleadings filed by counsel. All pleadings, motions, or other applications

to the court shall bear the name, address, bar association number, email address,

and office phone number of the attorney who will try the case and, if different

from the attorney who will try the case, the name, address, bar association

number, email address, and office phone number of the attorney who will be

prepared to argue the pleading, motion or other application.

(b) Pleadings filed pro se. All pleadings, motions, or other applications to the

court shall bear the name, address, email address, and phone number of the party

proceeding pro se.

Comment

Rule 1.5(a) continues practice under former Rule 1.05 of the Uniform

Rules of Circuit and County Court. Rule 1.5(b) addresses pro se pleadings. See

Miss. Const. art. 3, § 26 (“[i]n all criminal prosecutions the accused shall have

a right to be heard by himself or counsel, or both”).

Rule 1.6 Size of Paper.

All papers filed in any proceeding governed by these Rules shall be on paper

measuring eight and one-half (8½) inches by eleven (11) inches.

Notwithstanding the foregoing, exhibits or attachments to pleadings may be

folded and fastened to pages of the specified size. An exhibit or attachment not

in compliance with the foregoing provisions may be filed only if it appears that

compliance is not reasonably practicable.

Rule 1.7 Service and Filing of Pleadings and Certificate of Service.

(a) Service: When Required. Unless otherwise ordered by the court, any

person filing a pleading, motion, or application to the court, except the initial

pleading or an indictment, shall:

(1) serve a correct copy of that pleading, motion, or application to

the court on all attorneys of record in the case, and any

unrepresented defendant, pursuant to section (b) of this rule; and

(2) file with the court an original certificate of service certifying

that a correct copy of the pleading, motion, or application to the

court has been served on all attorneys of record in the case, and on

any unrepresented defendant, pursuant to section (b) of this rule;

stating the manner of service; and identifying on whom it was

served.

(b) Service How Made

(1) Generally. Whenever under these Rules service is required or permitted to

be made upon a party who is represented by an attorney of record in the

proceedings, the service shall be made upon such attorney unless service upon

the party is ordered by the court. Service upon the attorney or upon a party shall

be made by:

(A) personally handing a copy to the attorney/party;

(B) transmitting it to the attorney/party by electronic means; or

Service by electronic means is complete when the electronic equipment being

used by the attorney or party being served acknowledges receipt of the material.

If the equipment used by the attorney or party being served does not

automatically acknowledge the transmission, service is not complete until the

sending party obtains an acknowledgment from the recipient. Service by mail

is complete upon mailing.

(2) Electronic Court System Service. Where a court has, by local rule, adopted

the Mississippi Electronic Court System, service which is required or permitted

under these Rules shall be made in conformity with the Mississippi Electronic

Court System procedures.

(1) Generally. The filing of pleadings and other papers with the court as required

by these Rules shall be made by filing them with the clerk of the court, except

that the judge may permit the papers to be filed with the judge, in which event

the judge shall note thereon the filing date and forthwith transmit them to the

office of the clerk.

(2) Electronic Filing. A court may, by local rule, allow pleadings and other

papers to be filed, signed, or verified by electronic means in conformity with the

Mississippi Electronic Court System procedures. Pleadings and other papers

filed electronically in compliance with the procedures are written papers for

purposes of these Rules.

Comment

Rule 1.7(a) carries forward applicable provisions of former Rule 2.06 of

the Uniform Rules of Circuit and County Court. Sections (b) and (c) track

provisions in Rule 5(b) and (e) of the Mississippi Rules of Civil Procedure.

Rule 1.8 Interactive Audiovisual Devices.

(a) General Provisions. When the appearance of a defendant or counsel is

required in circuit, county, municipal or justice court, subject to the provisions

of this Rule, the appearance may be made by the use of interactive audiovisual

equipment, including video conferencing equipment. Interactive audiovisual

equipment shall at a minimum operate so as to enable the court and all parties

to view and converse with each other.

(b) Requirements. In using interactive audiovisual equipment, the following are

required:

(1) a full record of the proceedings shall be made as provided in

applicable rules;

(2) the court shall determine that the defendant knowingly,

intelligently, and voluntarily agrees to appear at the proceeding by

interactive audiovisual means; and

(3) provisions shall be made to allow for confidential

communications between the defendant and counsel before and

during the proceeding. Defense counsel shall be present at the

location with the defendant during the proceedings.

including video conferencing, may be permitted in the discretion of the court at

any proceeding except that this Rule shall not apply to any trial, probation

violation hearing, or any felony plea and/or sentencing.

Comment

Section (a) is taken from former Rule 6.08 of the Uniform Rules of Circuit

and County Court. Section (b) preserves a defendant’s right to be present

personally under Rule 10.1(a), by providing that a defendant must consent to

appear by interactive audiovisual means. While section (c) generally puts the

use of such technology in the discretion of the court, Rule 1.8 is inapplicable to

trials, probation violation hearings, and felony pleas and sentencing.

Rule 1.9 Local Court Rules.

(a) When Permissible. Any court by action of a majority of the judges thereof

may hereafter make local rules and amendments thereto concerning practice in

their respective courts not inconsistent with these Rules. In the event there is no

majority, the senior judge shall have an additional vote.

(b) Procedure for Approval. All such local rules shall be submitted to the

Supreme Court of Mississippi for approval before taking effect. Such

submissions shall comply with the requirements of Rule 27(f) of the Mississippi

Rules of Appellate Procedure and should include the text of the proposed new

rule or of the rule to be amended with deletions indicated by strikeouts and

additions shown underlined. The submissions shall also be accompanied by a

copy of the motion and of the proposed rule or rule amendment in an

electronically formatted medium (such as a USB Flash Drive or CD-ROM).

Upon receipt of such proposed rules and before any approval of the same, the

Supreme Court may submit them to the Supreme Court Advisory Committee on

Rules for advice as to whether any such rules are consistent or in conflict with

these Rules or any other rules adopted by the Supreme Court.

be submitted for publication on the Court’s website, in the Southern Reporter

(Mississippi cases), and in the Mississippi Rules of Court.

Comment

Rule 1.9 largely tracks Rule 83 of the Mississippi Rules of Civil

Procedure. Rule 1.9 guarantees the right of trial judges to prescribe local rules

of court, not inconsistent with these Rules. Consistent with Rule 27(f) of the

Mississippi Rules of Appellate Procedure, all local rules shall be filed in motion

form with the Supreme Court of Mississippi and are not effective until approved

by the Supreme Court.

Rule 1.10 Recordation of Proceedings where Official Court Reporter not

Provided.

Any attorney of record or pro se litigant in a court which does not provide an

official court reporter may record or have recorded any court proceeding by

audio-recording device or stenographically. Any expenses incident thereto shall

be borne by the party or parties.

Comment

Rule 1.10 is consistent with current practice and Mississippi Code Section

9-13-32.

Rule 2 Commencement of Criminal Proceedings

Rule 2.1 Commencement of Criminal Proceedings.

(a) Commencement. All criminal proceedings shall be commenced either by

charging affidavit, indictment, or bill of information.

(b) Docketing the Case.

(1) Charging affidavit. Anyone bringing a criminal charge in municipal court

or justice court shall lodge a charging affidavit with the judge or clerk of the

court. The clerk of the court shall record all charging affidavits on the docket.

(2) Indictment. After the grand jury returns an indictment, the circuit clerk shall

mark the indictment “filed” and such entries shall be dated and signed by the

circuit clerk. The circuit clerk shall, within ten (10) days after adjournment of

the term of court, record the indictments in the “Secret Record of Indictments,”

which shall be indexed and kept secret. The circuit clerk shall issue a capias to

the sheriff of the county where the indictment was returned. A copy of the

indictment shall be attached to the capias. Upon the execution of the capias and

the officer’s return thereon, the case shall be assigned a cause number in the

criminal docket and this cause number shall be put on the capias instanter.

Comment

Under Rule 2.1(a), the procedure for commencing a criminal proceeding

is either by charging affidavit or by indictment. By definition, “indictment”

includes “a bill of information in lieu thereof.” See Rule 1.4(e). This is in

accord with article 3, section 27, of the Mississippi Constitution of 1890, and

consistent with Mississippi Code Section 99-1-7.

The procedures for docketing the case provided in (b) are consistent with

Mississippi Code Sections 9-7-175, 99-7-9, 99-7-13, 99-9-1, and 99-33-2.

Additional rules regarding the grand jury are found in Rule 13, and rules

regarding indictments are found in Rule 14.

Rule 2.2 Duty of Judge upon Making of a Charging Affidavit.

(a) Probable Cause Determination. If it appears from the charging affidavit

and the evidence submitted that there is probable cause to believe that the

offense complained of has been committed and that there is probable cause to

believe that the defendant committed it, the judge shall proceed under Rule 3.1.

Before ruling on a request for a warrant, the judge may examine under oath the

affiant and any witnesses the affiant may produce.

(b) Evidence. The finding of probable cause shall be based upon evidence,

which may be hearsay in whole or in part provided there is a basis for believing

the source of the hearsay to be credible and for believing that there is a factual

basis for the information furnished.

Comment

The purposes served by Rule 2.2 are in accord with Mississippi law and

the mandates of the Fourth Amendment to the United States Constitution. As

the United States Supreme Court stated in Giordenello v. United States, 357

U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958):

[t]he purpose of the [charging affidavit], then, is to enable the

[judge] . . . to determine whether the “probable cause” required to

support a warrant exists. The [judge] must judge for himself the

persuasiveness of the facts relied on by a[n] [affiant] to show

probable cause. [The judge] should not accept without question the

[affiant’s] mere conclusion that the person whose arrest is sought

has committed a crime.

Id. at 486. See also Miss. Code Ann. § 99-3-28 (regarding “[w]arrants against

teachers, jail officers or counselors at adolescent offender programs”); State v.

Delaney, 52 So. 3d 348 (Miss. 2011).

Rule 3 Arrest Warrant or Summons upon Commencement of Criminal

Proceedings

Rule 3.1 Issuance of Arrest Warrant or Summons.

(a) Issuance. Upon a finding of probable cause made pursuant to Rule 2.2, or

upon a finding that such a determination has previously been made, the judge

shall immediately cause to be issued an arrest warrant or, where not prohibited

by law, a summons. More than one (1) summons or warrant may issue on the

same charging affidavit.

(b) Summons; Subsequent Issuance of Arrest Warrant.

(1) Summons. Unless otherwise prohibited by law, the judge may issue a

summons if:

(A) the defendant is not in custody;

(B) the offense charged is bailable as a matter of right; and

not obey the summons.

(2) Subsequent Issuance of Arrest Warrant. After the issuance of a summons,

the judge shall issue an arrest warrant if:

(A) the defendant, having been duly summoned, fails to appear;

(B) there is reasonable cause to believe that the defendant will fail

to appear; or

misdemeanor traffic violations shall be as otherwise provided by law.

Comment

Rule 3.1(a) contemplates that a summons, where not prohibited by law,

or arrest warrant shall issue upon a finding that a probable cause determination

has been made, for example, by a competent court of another jurisdiction. See

Miss. Code Ann. § 99-21-1.

Rule 3.1(b) gives the judge discretion to cause a summons to be issued,

where not prohibited by law, in those cases in which an arrest warrant is not

necessary to secure the presence of the defendant and there is little concern that

the defendant will flee. Rule 3.1(b) makes no distinction between felony and

misdemeanor cases.

Rule 3.1(c) provides that these Rules do not affect the use of tickets,

citations, or affidavits for misdemeanor traffic violations. Traffic violations are

governed by statute, e.g., the Uniform Traffic Ticket Law, Miss. Code Ann. §

63-9-21, and not these Rules.

Rule 3.2 Contents of Arrest Warrant or Summons; Execution, Return.

(a) Arrest Warrant. An arrest warrant issued upon a charging affidavit shall

be signed by the issuing judge. The arrest warrant shall:

(1) contain the complete name of the defendant, or if the name is

unknown, any name or description by which the defendant can be

identified with reasonable certainty;

(2) contain the location of the defendant, if known;

(3) state the offense with which the defendant is charged; and

(4) command that the defendant be arrested and brought before the

issuing judge, or, if the issuing judge is unavailable, before the

nearest or most accessible judge having jurisdiction. If the

defendant is bailable as a matter of right, the arrest warrant may

state that the defendant shall be released on his personal

recognizance, subject to the mandatory conditions of release in Rule

8.4(a), and directed to appear at a specified time and place, or be

released via an appearance bond or a secured appearance bond in an

amount predetermined by the court.

(b) Summons. The summons shall be in the same form as the arrest warrant,

except that it shall summon the defendant to appear at a stated time and place

within a reasonable time from the date of issuance.

(1) By Whom. The arrest warrant shall be directed to and may be executed by

any officer authorized by law within the State of Mississippi.

(2) Manner of Execution. An arrest warrant shall be executed by arrest of the

defendant.

(3) Return. After execution, the officer returning an arrest warrant shall write

thereon the manner and date of execution, shall print and sign the officer’s name

and state the officer’s badge number, and shall promptly return the arrest

warrant to the clerk of the court specified in the arrest warrant.

(d) Service of Summons. The summons may be served by personally

delivering a copy of the summons to the defendant by any officer authorized by

law to execute arrest warrants or by delivering a copy of the summons by U.S.

mail, addressed to the defendant at the defendant’s usual residence, business or

post office address. The officer serving the summons shall make return of the

summons in the same manner as provided in Rule 3.2(c)(3) for making return

of an arrest warrant.

(e) Defective Arrest Warrant. An arrest warrant shall not be invalidated nor

shall any person in custody thereon be discharged because of a defect in form.

The arrest warrant may be amended by the court to remedy such defect.

Comment

Where circumstances dictate issuance of an arrest warrant rather than a

summons, yet there is reason for use of recognizance release, Rule 3.2(a) gives

the issuing judge the flexibility of allowing a personal recognizance release,

subject to the mandatory conditions of release in Rule 8.4(a). The release of an

arrested defendant on recognizance would not preclude the defendant’s having

to appear at the initial hearing, but might preclude the defendant’s spending the

night in jail unnecessarily. Alternatively, the issuing judge has discretion to set

an appearance bond or secured appearance bond in the warrant, if the defendant

is bailable as a matter of right.

Rule 3.2(c)(1) states that an arrest warrant be directed to and executed by

“any officer authorized by law within the State of Mississippi.” Mississippi law

authorizes a broad range of officers to make arrests. See Miss. Code Ann. §§

99-3-1(1), 99-3-2.

Rule 3.2(d) is designed to make service of the summons as easy and

expeditious as possible. The function of the summons is solely to apprise the

defendant of the charges and to notify the defendant to appear. Delivery of a

copy of the summons by U.S. mail is similar to the procedure utilized for

summoning persons whose names are drawn for jury duty. See Miss. Code Ann.

§ 13-5-28. A defendant’s failure to respond to a mailed summons does not

provide valid grounds for the issuance of a contempt-based arrest warrant.

Under Rule 3.2(e), a mere defect in form will not invalidate an arrest

warrant. Normally, aliases, fictitious names, and descriptions are matters of

form and may be amended if judicially determined to be incorrect.

Rule 4 Search Warrants

Rule 4.1 Persons or Things Subject to Search and Seizure.

A search warrant may be issued for any of the following:

(1) evidence of a crime;

(2) contraband, fruits of crime, or other things unlawfully

possessed;

(3) thing(s) designed for use, intended for use, or which is being or

has been used in committing a crime; and

(4) a person to be arrested, or who is unlawfully restrained.

Comment

Generally, Rule 4 protects the rights guaranteed by article 3, section 23,

of the Mississippi Constitution (“The people shall be secure in their persons,

houses, and possessions, from unreasonable seizure or search; and no warrant

shall be issued without probable cause, supported by oath or affirmation,

specially designating the place to be searched and the person or thing to be

seized.”). The Rule is broad enough to embrace the issuance of anticipatory

search warrants; a warrant to search for things that are not within the jurisdiction

when the warrant is issued, but that are expected to be within the jurisdiction

when the search is conducted, is valid if it otherwise complies with the United

States Constitution, the Mississippi Constitution, and Rule 4. See United States

v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006).

Rule 4.1 describes the persons and/or things that may be seized with a

lawfully-issued search warrant. Issuance of a search warrant to search for items

of solely “evidential value” is authorized. Warden, Md. Penitentiary v. Haden,

387 U.S. 294, 300-01, 87 S. Ct. 1642, 1647, 18 L. Ed. 2d 782 (1967). Section

(b)(4) permits issuance of a warrant to search for a person under two

circumstances: when there is probable cause to arrest that person or when that

person is being unlawfully restrained. There may be instances in which a search

warrant would be required to conduct a search in either of these circumstances.

Even when a search warrant would not be required to enter a place to search for

a person, a procedure for obtaining a warrant should be available so that law

enforcement officers will be encouraged to resort to the preferred alternative of

acquiring “an objective predetermination of probable cause.” Katz v. United

States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

Rule 4.2 Warrant on Affidavit.

(a) In General. No search warrant shall issue except upon affidavit presented

to the issuing judge authorized by law to issue search warrants, establishing

grounds for issuing the warrant.

(b) Issuance. If the judge finds probable cause exists, the judge shall issue a

warrant naming or describing the person or thing to be seized, and naming or

describing the person or place to be searched.

Comment

Under section (b), probable cause for the issuance of a search warrant

should be assessed under the totality-of-circumstances test. See Jordan v. State,

995 So. 2d 94 (Miss. 2008); Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76

L. Ed. 2d 527 (1983).

Rule 4.3 Contents of Search Warrants.

Every search warrant issued by the court shall:

(1) command the law enforcement officer to search, within a

specified time not to exceed ten (10) days, the person(s) or place(s)

named in the search warrant and to return the warrant and an

inventory of the thing(s) seized to the court as designated in the

warrant;

(2) designate the court to which the warrant and an inventory of the

thing(s) seized shall be returned; and

(3) be signed and dated by the judge, showing the exact time and

date and the name of the law enforcement officer to whom the

warrant was delivered for execution.

Comment

The ten (10) day requirement in section (a) is consistent with the longstanding holding that “some date, within a reasonable time after the issuance of

the warrant, be fixed for its return, and that it should be executed within the time

within which it is, by its terms, a live process.” Taylor v. State, 137 Miss. 217,

102 So. 267, 268 (1924). The Court has also recognized that search warrants

shall be returnable instanter or on a day stated. See Meyer v. State, 309 So. 2d

161, 165-66 (Miss. 1975) (return two (2) days after the search warrant was

served was not a breach of the statutory requirement that warrant be executed

and returned within ten (10) days and was not an unreasonable delay); Jordan

v. State, 147 Miss. 24, 112 So. 590 (1927) (the requirement that the warrant

should be returned instanter only required that it should be executed and

returned within a reasonable time under the circumstances of the case, and that

the execution of a search warrant on the day following the date of its issuance

sufficiently complies with the mandate that it be executed and returned

instanter). The requirement that a search warrant be executed within a

reasonable time prevents the search warrant from being “held by an officer as

a weapon, to be used at his discretion.” Taylor, 102 So. at 268. Pursuant to

Rule 4.3, even an anticipatory search warrant must be executed within ten (10)

days of the date the search warrant was issued.

Rule 4.4 Execution and Return with Inventory; Return of Papers to Court;

Custody of Things.

(a) Receipt and Inventory. The law enforcement officer conducting the search

under the search warrant shall give to the person from whom or from whose

premises the things were taken, or shall leave at the place from which the things

were taken, a copy of the search warrant together with a copy of an inventory

of the things taken. The inventory shall be made in the presence of the person

from whose possession or premises the things were taken, if that person is

present, and shall be verified by the law enforcement officer executing the

search warrant.

(b) Return of Papers to Court. The law enforcement officer executing the

search warrant shall promptly return the search warrant, along with any

inventory of things seized, to the court specified in the search warrant.

Unexecuted search warrants shall be returned to the court.

retained in the custody of the seizing officer or agency, subject to court order.

Comment

Section (a) is intended to make clear that a copy of the warrant and an

inventory receipt for things taken shall be left at the premises at the time of the

search or with the person, if present, from whose premises the things are taken.

Section (b) requires prompt return of the executed warrant and inventory. See

Brown v. State, 534 So. 2d 1019 (Miss. 1988) (describing return as ministerial

act and noting improper return does not invalidate search).

Rule 5 Arrest and Initial Appearance

Rule 5.1 Procedure upon Arrest.

(a) Telephone Call. Any person under arrest shall be afforded a reasonable

opportunity to make a telephone call to, or otherwise make effective

communication with, any person the accused may choose.

(b) On Arrest without a Warrant. A person arrested without a warrant:

(1) may, unless prohibited by law, be released upon the defendant’s

personal recognizance after being notified in writing to appear at a

specified time and place; or

(2) shall be released upon execution of an appearance bond set

according to Rule 8, unless the charge upon which the person was

arrested is not a bailable offense, and directed to appear at a

specified time and place; or

(3) if not released pursuant to subsections (b)(1) or (b)(2), the

accused shall be taken without unnecessary delay, and in no event

later than forty-eight (48) hours after arrest, before a judge for an

initial appearance. If the person arrested is not taken before a judge

as so required then, unless the offense for which the person was

arrested is not a bailable offense, the person shall be released upon

execution of an appearance bond in the amount of the minimum bail

specified in Rule 8, and shall be directed to appear at a specified

time and place.

In the event the defendant is released on the minimum amount provided in the

bail schedule, the prosecuting attorney may file a motion with the court to

reconsider the bond amount and the conditions of release, and the procedures

thereafter shall be in accordance with Rule 8.

(1) If provision for bail or personal recognizance has been made by the judge

issuing the arrest warrant, a person arrested with a warrant shall be released and

directed to appear at a specified time and place.

(2) If the person arrested cannot meet the conditions of release provided in the

warrant, or if no such conditions are prescribed:

(A) if such person was arrested pursuant to a warrant issued on a

charging affidavit, the accused shall be taken without unnecessary

delay, and in no event later than forty-eight (48) hours after arrest,

before a judge for an initial appearance. If the person arrested has

not been taken before a judge as required herein, unless the charge

upon which the person was arrested is not a bailable offense, such

person shall be released upon execution of an appearance bond in

the amount of the minimum bail specified in Rule 8, and shall be

notified in writing to appear at a specified time and place; or

(B) if such person was arrested pursuant to a capias issued upon an

indictment, the accused shall be taken without unnecessary delay

before a judge, who shall proceed as provided in Rule 8.

(3) The defendant shall be given a copy of the charging document.

Comment

Rule 5.1(a) gives official sanction to common existing practice. The

opportunity to make a telephone call represents the minimum requirement and

use of other appropriate means of communication, electronic or otherwise, may

be allowed. Fundamental fairness dictates that a person who has been taken into

custody be allowed to communicate to another that the accused is being held by

the police and charged with a crime. Rule 5.1(a) thus serves to protect an

accused’s state and federal constitutional rights to bail, counsel, and due

process.

Rule 5.1(b) lists the options available to law enforcement officers in the

case of warrantless arrests. An officer may: (1) release the offender on personal

recognizance and issue a notice requiring the person to appear at a specified

time and place; (2) release the offender on execution of an appearance bond set

according to Rule 8 and direct the person to appear at a specified time and place;

or (3) take the offender into custody and provide the person with an opportunity

to make bail. A person may not be released on personal recognizance where

prohibited by law. See, e.g., Miss. Code Ann. § 99-5-37 (regarding arrest for

listed domestic violence offenses).

Under Rule 5.1(b)(3), if a person is taken into custody, the person shall be

taken without unnecessary delay, and in no event later than forty-eight (48)

hours after arrest, before a judge who shall proceed with an initial appearance.

If the person arrested is not taken before a judge within forty-eight (48) hours,

the person detained shall be released on execution of an appearance bond in the

minimum amount set pursuant to Rule 8 and directed to appear at a specified

time and place. Rule 5.1(b)(3) conforms to the United States Supreme Court’s

holdings in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54

(1975), and County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661,

114 L. Ed. 2d 49 (1991).

Rule 5.2 Initial Appearance.

(a) Generally. Every person in custody and not under indictment shall be

taken, without unnecessary delay and in accordance with Rule 5.1, before a

judge for an initial appearance. At the defendant’s initial appearance, the judge

shall:

(1) ascertain the defendant’s true name, age, and address, and

amend the formal charge if necessary to reflect this information,

instructing the defendant to notify the court promptly of any change

of address;

(2) inform the defendant of the charges and provide the defendant

with a copy of the charging affidavit;

(3) if the arrest has been made without a warrant, determine whether

there was probable cause for the arrest and note the probable cause

determination for the record. If there was no probable cause for the

warrantless arrest, the defendant shall be released;

(4) if the defendant is unrepresented, advise of the right to

assistance of an attorney, and that if the defendant is unable to

afford an attorney, an attorney will be appointed as required by law.

If the indigent defendant is unrepresented and desires

representation, counsel shall be appointed pursuant to Rule 7.2,

Rule 7.3 and local rule promulgated pursuant to Rule 1.9; and

(5) advise the defendant of:

(A) the right to remain silent and that any statements

made may be used against the defendant;

(B) the right to communicate with an attorney, family

or friends, and that reasonable means will be provided

to enable the defendant to do so; and

may obtain release.

(b) Felony Cases. When a defendant is charged with commission of a felony,

the judge shall also:

(1) inform the defendant of the right to a preliminary hearing and

the procedure by which that right may be exercised; and

(2) if requested, set the time for a preliminary hearing in accordance

with Rule 6.1.

released from custody, or has been indicted by a grand jury, the defendant shall

not be entitled to an initial appearance.

Comment

The purpose of Rule 5.2 is to insert the judicial process between the police

and the defendant at the earliest practicable time in order to minimize the effects

of carelessness, abuse of power, or unavoidable error in the police function.

Rule 5.2 insures procedural compliance with Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Escobedo v. Illinois, 378 U.S. 478,

84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), and provides for the prompt

determination of the conditions for release. This continues the policy contained

in Mississippi Code Section 99-3-17 and former Rule 6.03 of the Uniform Rules

of Circuit and County Court.

Pursuant to Rule 1.8, with the defendant’s consent, initial appearances

may be held via interactive audiovisual devices.

Rule 5.2(c) underscores that a defendant who has been released from

custody, or who has been indicted, is not entitled to an initial appearance. This

continues the practice provided in former Rule 6.05 of the Uniform Rules of

Circuit and County Court.

Rule 6 Preliminary Hearing

Rule 6.1 Right to a Preliminary Hearing; Waiver; Postponement.

(a) Right to a Preliminary Hearing.

(1) Generally. A defendant who has been charged with a felony is entitled to a

preliminary hearing upon request. But a defendant who has been indicted by a

grand jury is not entitled to a preliminary hearing.

(2) When Commenced. The preliminary hearing shall be held within fourteen

(14) days following the demand for preliminary hearing unless:

(A) the charging affidavit has been dismissed;

(B) the hearing is subsequently waived, as provided in section (b);

(D) before commencement of the hearing, an indictment charging

the same offense has been returned by the grand jury.

(b) Waiver. A preliminary hearing, once demanded, may be subsequently

waived in open court or by written waiver, signed by the defendant and

defendant’s counsel, if any.

(1) Release on Recognizance. If a preliminary hearing has not been commenced

within fourteen (14) days as required by subsection (a), unless postponed as

provided in subsection (d), the defendant shall be released on recognizance.

(2) Non-bailable Offenses; Notice to Circuit Court. However, if the defendant

is charged with a non-bailable offense, or if release is prohibited by Article 3,

Section 29(2) of the Mississippi Constitution of 1890, the court, the attorneys,

or the accused, if pro se, shall immediately notify a judge of that circuit of the

delay and the reasons therefor. The circuit judge shall thereupon order the

hearing be set for a specified time.

(d) Postponement. Upon motion of any party, or upon the judge’s own

initiative, the preliminary hearing may be postponed beyond the time limits

specified in subsection (a) upon a finding that circumstances exist that justify

delay and, in that event, the court shall enter a written order detailing the reasons

for the finding, include a date certain for the postponed hearing, and shall give

the parties prompt notice thereof.

Comment

Rule 6.1(a) grants an accused charged with a felony (and not under

indictment) the right to a preliminary hearing upon request. See Mayfield v.

State, 612 So. 2d 1120, 1129 (Miss. 1992) (the principal purpose of a

preliminary hearing is to determine whether probable cause exists). The

provision that a defendant who has been indicted by a grand jury is not entitled

to a preliminary hearing is consistent with former Rule 6.05 of the Uniform

Rules of Circuit and County Court.

Rule 6.1(c) states that if a preliminary hearing is not commenced within

fourteen (14) days as required by subsection (a), and is not postponed as allowed

by subsection (d), the defendant shall be released on recognizance, unless the

offense is non-bailable or release is prohibited by Article 3, Section 29(2) of the

Mississippi Constitution of 1890.

Rule 6.2 Proceedings at Preliminary Hearing.

(a) Procedure. At a preliminary hearing the judge shall determine probable

cause and the conditions for release, if any. All parties shall have the right to

cross-examine the witnesses testifying and, subject to the provisions herein,

introduce evidence. Only evidence relevant to these questions shall be adduced.

At the close of the prosecution’s case, including cross-examination of

prosecution witnesses by the defendant, the judge shall determine and state for

the record or state in open court whether the prosecution’s case establishes

probable cause. The defendant may then make a specific offer of proof,

including the names of witnesses who would testify, or the defendant may

produce the evidence offered.

(b) Process. Unless otherwise ordered by the court for good cause shown,

process shall issue to secure the attendance of witnesses requested by the

defendant or the prosecuting attorney.

evidence, which may be hearsay, in whole or in part, provided there is a basis

for believing the source of the hearsay to be credible and for believing that there

is a factual basis for the information furnished.

(d) Suppression Motions Inapplicable. Objections to evidence on the ground

that it was acquired by unlawful means are not properly made at the preliminary

hearing.

(e) Amendment of Charging Affidavit. The charging affidavit may be

amended at any time to conform to the evidence, unless substantial rights of the

defendant would be prejudiced.

(f) Binding Over the Case to the Grand Jury. If, from the evidence, it

appears that there is probable cause to believe that a felony has been committed,

and that the defendant committed it, the judge shall bind the defendant over to

await action of the grand jury.

(g) Discharge of the Defendant. If, from the evidence, it appears that there is

no probable cause to believe that a felony has been committed or that the

defendant committed it, the defendant shall be discharged from custody. The

discharge of the defendant shall not preclude the state from presenting the same

offense to a grand jury.

Comment

Rule 6.2(a) limits the issues at a preliminary hearing to probable cause and

the conditions of release. A defendant is permitted to cross-examine witnesses

and present testimony and evidence. Rule 6.2(b) complements these rights by

providing defendants with process to secure the attendance of witnesses, unless

otherwise ordered by the court on a showing of good cause.

Rule 6.2(c) notes the admissibility of hearsay, which is in accord with

Rule 1101(b)(4) of the Mississippi Rules of Evidence (except for rules

pertaining to privileges, the rules of evidence are inapplicable in probable cause

hearings in criminal cases). There is no constitutional requirement that hearsay

evidence be excluded from a probable cause hearing. See Conerly v. State, 760

So. 2d 737, 740-41 (Miss. 2000) (determination of probable cause may be based

on corroborated and substantiated hearsay); Costello v. United States, 350 U.S.

359, 76 S. Ct. 406, 100 L. Ed. 397 (1956) (upholding a grand jury indictment

based solely on hearsay testimony).

Rule 7 Counsel

Rule 7.1 Right to Counsel; Waiver.

(a) Right to be Represented by Counsel. A defendant shall be entitled to be

represented by counsel in any criminal proceeding. The right to be represented

shall include the right to consult in private with an attorney or the attorney’s

agent, without unnecessary delay, after a defendant is taken into custody, at

reasonable times thereafter, and sufficiently in advance of a proceeding to allow

adequate preparation therefor.

(b) Right to Appointed Counsel. An indigent defendant shall be entitled to

have an attorney appointed in any criminal proceeding which may result in

punishment by loss of liberty, in any other criminal proceeding in which the

court concludes that the interests of justice so require, or as required by law.

The determination of the right to appointed counsel, and the appointment of

such counsel, is to be made no later than at the indigent defendant’s first

appearance before a judge.

to act as his/her own attorney, the court shall conduct an on-the-record

examination of the defendant to determine if the defendant knowingly and

voluntarily desires to act as his/her own attorney. The court shall inform the

defendant that:

1. The defendant has a right to an attorney, and if the defendant

cannot afford an attorney, then the court will appoint one free of

charge to defend or assist the defendant in his/her defense.

2. The defendant has the right to conduct the defense and may elect

to do so and allow whatever role (s)he desires to his/her attorney.

3. The court will not relax or disregard the rules of evidence,

procedure or courtroom protocol for the defendant and that the

defendant will be bound by and have to conduct himself/herself

within the same rules as an attorney, that these rules are not simple

and that without legal advice his/her ability to defend

himself/herself will be hampered.

4. The right to proceed pro se usually increases the likelihood of a

trial outcome unfavorable to the defendant.

5. Other matters as the court deems appropriate.

After informing the defendant and ascertaining that the defendant understands

these matters, the court will ascertain whether the defendant still wishes to

proceed pro se or if the defendant desires an attorney to assist him/her in his/her

defense. If the defendant desires to proceed pro se, the court should determine

whether the defendant has exercised this right knowingly and voluntarily and,

if so, make the finding a matter of record. At the time of accepting a

defendant’s waiver of the right to counsel, the court shall inform the defendant

that the waiver may be withdrawn and counsel appointed or retained at any stage

of the proceedings. Additionally, the court may appoint an attorney to assist the

defendant on procedure and protocol, even if the defendant does not desire an

attorney. Such advisory counsel shall be given notice of all matters of which the

defendant is notified.

(d) Withdrawal of Waiver. A defendant may withdraw a waiver of the right to

counsel at any stage of the proceedings but will not be entitled to repeat any

proceeding previously held or waived solely on the grounds of the subsequent

appointment or retention of counsel.

(e) Unreasonable Delay in Retaining Counsel. If a non-indigent defendant

appears without counsel at any proceeding after having been given reasonable

time to retain counsel, the cause may proceed. If an indigent defendant who has

refused appointed counsel in order to obtain private counsel appears without

counsel at any proceeding after having been given reasonable time to retain

counsel, the court shall appoint counsel unless the indigent defendant waives the

right under section (c). If the indigent defendant continues to refuse appointed

counsel, the cause may proceed.

Comment

Rule 7.1 establishes guidelines for the representation of both indigent and

non-indigent criminal defendants. The basis of Rule 7.1 is the right of an

accused to be represented by counsel in all criminal prosecutions. See U.S.

Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the

right . . . to have the assistance of counsel for his defence.”); Miss. Const. art.

3, § 26 (“In all criminal prosecutions the accused shall have a right to be heard

by himself or counsel, or both . . . .”).

For the purposes of subsection (a), the term “criminal proceeding”

includes any stage of the criminal process, without regard to whether a “criminal

proceeding” has or has not been commenced under Rule 2.1. The provision that

a defendant may consult with the attorney’s agent is added for the attorney’s

convenience.

Rule 7.1(b) is adopted from Gideon v. Wainwright, 372 U.S. 335, 83 S.

Ct. 792, 9 L. Ed. 2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct.

2006, 32 L. Ed. 2d 530 (1972); and Mississippi Code Section 99-15-15. See

also Alabama v. Shelton, 535 U.S. 654, 661-62, 122 S. Ct. 1764, 1769-70, 152

L. Ed. 2d 888 (2002).

Under section (b), there are two pertinent inquiries in determining when

counsel is to be appointed to represent an indigent defendant. The first inquiry

is whether the right to appointed counsel arises at all. See Dunn v. State, 693

So. 2d 1333, 1339 (Miss. 1997) (citing Scott v. Illinois, 440 U.S. 367, 374, 99

S. Ct. 1158, 1162, 59 L. Ed. 2d 383 (1979)). The second inquiry is if the

defendant is entitled to appointed counsel, at what point in the process is counsel

to be appointed. Regarding this second inquiry, Mississippi law provides that

“[t]he accused shall have such representation at every critical stage of the

proceedings . . . where a substantial right may be affected.” Miss. Code Ann.

§ 25-32-9(2). Specifically:

[u]nder Mississippi law, the right to counsel attaches earlier than

does the sixth amendment right. Williamson [v. State], 512 So. 2d

[868,] 876 [(Miss. 1987)]; Page v. State, 495 So. 2d 436, 439

(Miss. 1986). This right attaches “once the proceedings against the

defendant reach the accusatory stage.” Williamson, 512 So. 2d at

876; Page, 495 So. 2d at 439. The “accusatory stage” is defined by

Mississippi law to occur when a warrant is issued or, “by binding

over or recognizing the offender to compel his appearance to

answer the offense, as well as by indictment or affidavit.” Miss.

Code Ann. § 99-1-7 (1972). This right to counsel [also] “attaches

at the point in time when ‘the initial appearance . . . ought to have

been held. . . .’” Veal [v. State], 585 So.2d [693,] 699 [(Miss.

1991)] (emphasis added).

Ormond v. State, 599 So. 2d 951, 956 (Miss. 1992). See also Weeks v. State,

804 So. 2d 980, 995 (Miss. 2001); Sanders v. State, 801 So. 2d 694, 700 (Miss.

2001) (citing Johnson v. State, 631 So. 2d 185, 187-88 (Miss. 1994)) (“The

Sixth Amendment right to counsel attaches once the proceedings reach the

accusatory stage.”).

Rule 7.1(c) provides the standards for waiver of the right to counsel,

applicable throughout these rules. It is derived from former Rule 8.05 of the

Uniform Rules of Circuit and County Court and adopts the constitutional

standard set down in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed.

1461 (1938); Von Moltke v. Gillies, 332 U.S. 708, 68 S. Ct. 316, 92 L. Ed. 309

(1948); and Argersinger, and followed by the Mississippi Supreme Court in

Conn v. State, 251 Miss. 488, 170 So. 2d 20 (1964). See also Bradley v. State,

58 So. 3d 1166, 1170 (Miss. 2011); Patton v. State, 34 So. 3d 563, 565-69

(Miss. 2010).

Subsection (c) also allows, but does not require, the court to appoint

advisory or standby counsel. Although a criminal defendant has an absolute

right to defend pro se under the Sixth Amendment, there may be instances

where a court will deem the appointment of standby counsel advisable and in the

defendant’s best interest. See Patton, 34 So. 3d at 567; McKaskle v. Wiggins,

465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); Faretta v. California,

422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); United States v.

Theriault, 474 F. 2d 359 (5th Cir. 1973), cert. denied, 411 U.S. 984 (1973).

Under Rule 7.1(d), the defendant can decide at any stage of the

proceedings that it was a mistake to waive counsel. The court should encourage

an unrepresented defendant, at all stages, to obtain counsel. But while the

defendant’s right to withdraw waiver of counsel is unlimited, a defendant is not

allowed to use late appointment or retention of counsel to disrupt orderly and

timely processing of the case. Thus, a defendant cannot delay a scheduled

proceeding, nor repeat one already held, solely because of a change of heart

concerning the need for counsel.

Rule 7.1(e) protects the court against dilatory tactics by the defendant in

retaining counsel while at the same time preserving the defendant’s right to

counsel. See Sample v. State, 320 So. 2d 801, 804 (Miss. 1975) (“We recognize

that the defendant must be given a reasonable opportunity to employ and consult

with the attorney of his choosing.”). It allows an indigent defendant the

opportunity to make a good faith, though unsuccessful, effort to obtain private

counsel, even though the proceeding may be delayed. See McConnell v. United

States, 375 F. 2d 905 (5th Cir. 1967); Cleveland v. United States, 322 F. 2d 401

(D.C. Cir. 1963), cert. denied, 375 U.S. 884 (1963).

Rule 7.2 Procedure for Appointment of Counsel for Indigent Defendants;

Appearance; Withdrawal.

(a) Procedure for Appointment of Counsel for Indigent Defendants.

(1) Generally. A procedure shall be established in each circuit, county,

municipal, and justice court for the appointment of counsel for each indigent

defendant entitled thereto.

(2) Appointment of Multiple Attorneys. In all death penalty trial proceedings, the

court shall appoint two (2) attorneys pursuant to the standards in Rule 7.4. At

the time of the appointment, and subject to court approval, the appointed

attorney may recommend co-counsel so long as co-counsel is willing to accept

the appointment and meets all of the requirements of Rule 7.4. If the appointed

attorney does not recommend co-counsel upon accepting an appointment, the

court shall select co-counsel. In non-death penalty cases, the appointment of

multiple attorneys is within the discretion of the court.

(b) Entry of Appearance. At or before a first appearance in any court on behalf

of a defendant, an attorney, whether privately retained or court-appointed, shall

file an entry of appearance or, in lieu thereof, the court shall note the attorney’s

appearance on the record.

any stage shall continue to represent that defendant in all further proceedings in

the case, including filing a notice of appeal, unless counsel is allowed to

withdraw for good cause as approved by the court and new counsel is retained

or appointed (unless the right to counsel has been properly waived pursuant to

Rule 7.1(c)).

(d) Withdrawal. When an attorney makes an appearance for any party in a

case, that attorney will not be allowed to withdraw as attorney for the party

without the permission of the court. The attorney making the request shall give

notice to his/her client and to all attorneys in the cause and certify the same to

the court in writing. The court shall not permit withdrawal without prior notice

to his/her client and all attorneys of record.

Comment

Rule 7.2(a) requires that each circuit shall establish governing local

procedures for the appointment of counsel for indigent defendants. Local court

rules are promulgated pursuant to Rule 1.9.

Rule 7.2(c) effectuates a defendant’s right to be represented by counsel in

any criminal proceeding and through all stages of the criminal process. See

MRCrP 7.1(a) & cmt. Apart from court-approved withdrawal, counsel will

continue to represent the defendant through all stages of the case, including

filing a notice of appeal. See M.R.A.P. 6(b). In addition to being familiar with

the case, continued representation guarantees that a defendant’s right of appeal

is not lost in the period between termination of trial counsel’s responsibilities

and retention or appointment of appellate counsel.

Nothing in Rule 7.2 limits the ability of a court to establish a procedure

pursuant to Rule 7.2(a)(1) for appointing an attorney to represent a defendant

for a limited purpose or time, after which another attorney is appointed or

retained to represent the defendant for subsequent proceedings. In that event,

trial counsel should be substituted as soon as practicable and continuous

representation must be preserved.

Rule 7.2(d) is consistent with former Rule 1.13 of the Uniform Rules of

Circuit and County Court Practice. If the court allows counsel to withdraw, the

court shall see that new counsel is retained or appointed before granting

permission to withdraw, unless the right to counsel has been properly waived

pursuant to Rule 7.1(c). In this way, subsection (d) maintains the integrity of the

trial date, while also protecting the interests of the defendant and aiding the trial

court in providing continuity in legal representation.

Rule 7.3 Determination of Indigency; Appointment of Counsel;

Compensation.

(a) Standard for Indigency. The term “indigent” as used in these Rules means

a person who is financially unable to employ counsel.

(b) Affidavit or Sworn Testimony of Substantial Hardship. A defendant

desiring to proceed as an indigent may complete an affidavit concerning the

defendant’s financial resources on a court-approved form. In lieu of an

affidavit, or together with an affidavit, the defendant may be examined under

oath regarding defendant’s financial resources by the judge responsible for

determining indigency. Before said questioning, the defendant shall be advised

of the penalties for perjury as provided by law.

if there has been a material change in circumstances, the defendant, the

appointed attorney, or the prosecutor may move for reconsideration.

(d) Order of Appointment. Whenever counsel is appointed, the court shall

enter an order to that effect, a copy of which shall be provided to the defendant,

the appointed attorney, and the prosecutor.

(e) Appointment of Public Defender. In counties or municipalities which have

a public defender, the public defender shall represent all defendants entitled to

appointed counsel whenever authorized by law and able to do so.

(f) Other Appointments. If the public defender is not appointed, a private

attorney shall be appointed to the case. All criminal appointments shall be made

in a manner fair and equitable to the members of the bar, taking into account the

skill likely to be required in handling a particular case.

(g) Appointment of Counsel During Appeal Following Withdrawal. When

prior counsel is permitted to withdraw, the trial or appellate court shall appoint

new counsel for a defendant legally entitled to such representation on appeal.

(h) Compensation. A private attorney appointed to represent an indigent

defendant is entitled to compensation for services rendered as provided by law.

Other than compensation for services rendered as provided by law, no appointed

counsel may request or accept any payment or promise of payment for assisting

in the representation of a defendant.

(i) Expenses. Appointed counsel shall be entitled to reasonable and necessary

expenses incurred in defense of an indigent client, including fees and expenses

of expert or professional persons, provided that such expenses are approved in

the sound discretion of the court. Extraordinary expenses, including expert

expenses, shall be approved in advance by the court.

Comment

Rule 7.3 establishes a procedure for the determination of indigency. In

making a determination of indigency, the court should consider factors such as

the defendant’s income and sources of income; employment status; real or

personal property owned; outstanding obligations; and the number and age(s)

of any dependant(s). See Miss. Code Ann. § 25-32-9(1). The court shall not

consider the fact that the defendant has been released on bond, or the financial

ability of friends or relatives not legally responsible for the defendant.

Rule 7.3(e) establishes the rule for appointment of public defenders rather

than private counsel in counties or municipalities that have a public defender’s

office. See Miss. Code Ann. § 25-32-9(1). When the public defender’s office

cannot represent an indigent defendant (e.g., when there is a conflict of interest

or the public defender is unable to provide prompt and adequate representation),

private counsel shall be appointed. See Miss. Code Ann. § 25-32-13.

Rule 7.3(g) provides for continuity of representation by requiring the trial

or appellate court to appoint new counsel for a defendant legally entitled to such

representation on appeal, when prior counsel is permitted to withdraw. See

M.R.A.P. 6(b); Jones v. State, 355 So. 2d 89, 91 (Miss. 1978) (“An accused is

not only entitled to counsel at trial, but he is entitled to counsel on appeal from

a conviction on the merits. If he is indigent and unable to afford an attorney,

then he is entitled to a court-appointed attorney at trial and on appeal.”).

Rule 7.3(h) is consistent with existing law regarding the compensation of

appointed counsel. See Miss. Code Ann. § 99-15-17. Rule 7.3(i) addresses the

reimbursement of reasonable and necessary expenses to appointed counsel. See

Miss. Code Ann. §§ 99-15-17, 99-15-21; Howell v. State, 989 So. 2d 372, 390

(Miss. 2008) (quoting Ruffin v. State, 447 So. 2d 113, 118 (Miss. 1984)) (“[a]n

indigent’s . . . right to defense expenses . . . is conditioned upon a showing that

such expenses are needed to prepare and present an adequate defense”); Hansen

v. State, 592 So. 2d 114, 125 (Miss. 1991) (State must pay for “non-legal

personnel needed by the defense” on showing of “substantial need”); Wilson v.

State, 574 So. 2d 1338, 1341 (Miss. 1990).

Rule 7.4 Standards for Appointment of Trial and Appellate Counsel in

Death Penalty Cases.

(a) In General. To be eligible for appointment in a death penalty case, an

attorney:

(1) shall have been a member in good standing of the State Bar of

Mississippi for at least five (5) years immediately preceding the

appointment, or admitted pro hac vice pursuant to an order entered

under Rule 46 of the Mississippi Rules of Appellate Procedure and

be a member in good standing of that attorney’s home jurisdiction

for a like period immediately preceding the appointment;

(2) shall have practiced in the area of state criminal litigation for

three (3) years immediately preceding the appointment;

(3) shall have in the three (3) years before appointment completed

twelve (12) hours of training or educational programs in the area of

death penalty defense through a program accredited by the

Mississippi Commission on Continuing Legal Education or the

American Bar Association; and

(4) shall have demonstrated the necessary proficiency and

commitment to zealous advocacy which exemplify the quality of

representation appropriate to death penalty cases.

(b) Additional Qualification Requirements.

At least one (1) appointed attorney must meet the qualifications set forth in

section (a) and the following:

(1) shall have practiced in the area of state criminal litigation for

five (5) years immediately preceding the appointment; and

(2) shall have been counsel in at least five (5) felony jury trials that

were tried to completion, including at least one (1) death penalty

murder jury trial that was tried to completion in which the attorney

participated.

behalf of a defendant sentenced to death, an attorney must meet the

qualifications set forth in section (a) and, within five (5) years immediately

preceding the appointment, have been counsel in an appeal or post-conviction

proceeding in a case in which a death sentence was imposed, as well as have

experience as counsel in the appeal of at least three (3) felony convictions.

Alternatively, an attorney must have been counsel in the appeal of at least six (6)

felony convictions, at least two (2) of which were appeals from murder

convictions.

(d) Exceptional Circumstances. In exceptional circumstances enumerated by

the trial judge on the record, an attorney may be appointed who does not meet

the qualifications set forth in sections (a)(1)-(3), (b) and/or (c), provided that the

attorney’s experience, stature and record in a different type of practice (e.g.,

civil litigation, academic work, or work for a court or prosecutor) enable the

court to conclude that the attorney’s ability meets or exceeds the standards set

forth in this Rule.

Comment

The purpose of Rule 7.4 is to establish standards for appointment of

counsel for indigent defendants in the trial and appellate stages of capital

litigation. The provisions of this rule generally parallel the qualifications set

forth in Rule 22 of the Mississippi Rules of Appellate Procedure regarding

qualifications for capital post-conviction counsel.

Rule 7.4(b) establishes elevated standards for at least one (1) of the

appointed attorneys. Rule 7.4(c) sets out standards for counsel in appellate

proceedings. (Of course, Rule 22 of the Mississippi Rules of Appellate

Procedure, not Rule 7.4(c), governs appointment of capital post-conviction

counsel.) Rule 7.2(a)(2) requires that co-counsel be appointed in all death

penalty trial proceedings; co-counsel should ordinarily be appointed at the

appellate stage as well.

Rule 8 Release

Rule 8.1 Definitions and Requirements.

Whenever the terms below appear in these Rules, they shall have the following

meanings:

(a) Personal Recognizance. A release on defendant’s “personal recognizance”

means release without any condition relating to, or a deposit of, security.

(b) Unsecured Appearance Bond. An “unsecured appearance bond” is an

undertaking to pay a specified sum of money to the clerk of the circuit, county,

justice, or municipal court, for the use of the State of Mississippi or the

municipality, on the failure of a person released to comply with its conditions.

bond secured by deposit with the clerk of security equal to the full amount

thereof.

(d) Cash Deposit Bond. A “cash deposit bond” is an appearance bond secured

by deposit with the clerk of security, in the form of a cash deposit or certified

funds, in an amount set by the judge. The following requirements shall be met

for a cash deposit bond:

(1) The accused must never have been convicted in any court of this

state, another state or a federal court, of a crime punishable by more

than one (1) year’s imprisonment, currently is not charged with or

previously been convicted of escape, or had an order nisi entered on

a previous bond;

(2) The amount of the bond must be set by the proper authority;

(3) A return date must be set by the proper authority;

(4) The accused must tender to the clerk of the circuit court ten

percent (10%) of the amount of the bond as set, in cash, or $250.00

in cash, whichever is greater;

(5) The accused must sign an appearance bond guaranteeing his/her

appearance and binding himself/herself unto the State of

Mississippi in the full amount of the bond as set to be used in the

case of default;

(6) The accused, by affidavit duly notarized, must swear in

substantially the following form:

State of Mississippi

County of __________

Personally appeared before me, the undersigned authority in and for

said county and state, __________, who after being duly sworn

states:

(a) I have never been convicted in any court of this

state, another state, or a federal court of a crime

punishable by more than one (1) year’s imprisonment.

I am not charged with escape and I have never been

convicted of escape. I have had no order nisi entered on

a bail bond executed by me.

(b) The proper authority has set the sum of $_______

as the amount of bail bond to be executed by me. This

bond was set by __________.

date is __________ and was set by __________.

(d) I have tendered to the clerk of the Circuit Court of

__________ County, Mississippi, ten percent (10%) of

the amount of said bond in cash, which sum is not less

than $250.00. Said cash is my property. I authorize the

clerk of said court to dispose of the same as follows: If

the bond is forfeited, the cash tendered will be paid by

the clerk, less a fee of not more than $10.00, to the

county, and the amount so paid will be credited on the

bond forfeited. If I appear on the return day and a final

disposition is made of the case, the amount deposited

with the clerk, less a fee of not more than $10.00 to be

retained by the clerk, will be disposed of as ordered by

the court.

(e) I agree to report to the clerk of the court by

telephone, or in person, and in writing on the first

Monday of each month as to my current address and

telephone number. If I fail to do so, I agree that the

bond may be declared in default.

(7) The amount of money tendered under this rule shall not be

disbursed to any person except on written order of the court. The

money deposited with the clerk shall be disbursed in the following

manner: first, to pay any court costs assessed against the defendant;

second, to pay any restitution the defendant has been ordered to

make; third, to pay any fines imposed against the defendant; fourth,

to pay any assignment of the sum made by the defendant to

defendant’s attorney; and fifth, any refund to the defendant or other

disbursements as allowed by the court.

(e) Security. “Security” is cash, certified funds, or a surety’s undertaking

deposited with the clerk to secure an appearance bond.

(f) Surety. A “surety” is someone (other than the person seeking release) who

executes an appearance bond and is therefore bound to pay its amount, if the

person released fails to appear for any proceeding as ordered by the court. A

surety, except one governed by Mississippi Code Section 83-39-1 et. seq., shall

file with the appearance bond an affidavit or sworn certification:

(1) stating that the surety is not an attorney, judicial official, or

person authorized to accept bail;

(2) stating that the surety owns property in this state, which

property, standing alone or when aggregated with that of other

sureties, is worth the amount of the appearance bond (provided, that

the property shall be exclusive of property exempt from execution

and its value equaling the amount of the appearance bond shall be

above and over all liabilities, including the amount of all other

outstanding appearance bonds entered into by the surety) and

specifying that property and the exemptions and liabilities thereon;

and

(3) specifying the number and amount of other outstanding

appearance bonds entered into by the surety.

Generally, an attorney, judicial official, or person authorized to accept bail (e.g.,

a sheriff) may not be a surety. However, an attorney, judicial official, or person

authorized to accept bail may be a surety for a member of the surety’s immediate

family. For purposes of this Rule, the term “immediate family” shall be limited

to include only: a spouse, a sibling, a spouse’s sibling, a lineal ancestor or

descendant, a lineal ancestor or descendant of a spouse, or a minor or

incompetent person dependent upon the surety for more than one-half (½) of

his/her support. In such cases, the attorney, judicial official, or person

authorized to accept bail shall file with the appearance bond an affidavit stating

the surety’s position, the surety’s relationship to the person seeking release, and

the information required in Rule 8.1(f)(2) and (3).

(g) Bail. “Bail” is a monetary amount for or condition of pretrial release from

custody, normally set by a judge at the initial appearance.

(h) Insurer. The terms “insurer,” “professional bail agent,” “soliciting bail

agent,” “bail enforcement agent,” and “personal surety agent” shall be defined

as in Mississippi Code Section 83-39-1, et seq.

(i) Compliance Required. All agents and insurers shall comply fully with

Mississippi Code Sections 83-39-1, et seq., and 99-5-1, et seq., and all related

statutes and regulations.

Comment

Rule 8.1 provides definitions for use in Rule 8 and throughout these

Rules, and replaces practice under former Rule 6.02 of the Uniform Rules of

Circuit and County Court. The statutory provisions currently governing

professional bail bond companies regulated by the Mississippi Commissioner

of Insurance, as provided in Mississippi Code Section 83-39-1 et seq., are

unaffected by Rule 8. This Rule is intended to complement existing statutory

provisions governing bail matters in the courts, as provided in Mississippi Code

Section 99-5-1 et seq. The forms required by Mississippi Code Sections 99-5-1

and 99-5-3 are unaffected.

A release on personal recognizance pursuant to section (a) is

distinguishable from release conditioned on the posting of bond or other

security.

Section (b) describes a type of bond not previously used in state court

practice, but used extensively in federal criminal cases pursuant to 18 U.S.C.

§ 3142(b).

Sections (c) and (d) reflect current practice. See Miss. Code Ann. §

99-5-9. The form of a cash deposit bond previously prescribed by Rule 6.02(C.)

of the Uniform Rules of Circuit and County Court is retained.

Section (f) clarifies the procedure when a person is arrested and permitted

to post an appearance bond secured by sureties who may own equity in real

property.

Sections (h) and (i) make clear that the statutory requirements and

procedures related to professional bond companies and their bail bonds continue

in full force.

Rule 8.2 Right to Pretrial Release on Personal Recognizance or on Bond.

(a) Right to Release. Any defendant charged with an offense bailable as a

matter of right shall be released pending or during trial on the defendant’s

personal recognizance or on an appearance bond unless the court before which

the charge is filed or pending determines that such a release will not reasonably

assure the defendant’s appearance as required, or that the defendant’s being at

large will pose a real and present danger to others or to the public at large. If

such a determination is made, the court shall impose the least onerous

condition(s) contained in Rule 8.4 that will reasonably assure the defendant’s

appearance or that will eliminate or minimize the risk of harm to others or to the

public at large. In making such a determination, the court shall take into account

the following:

(1) the age, background and family ties, relationships and

circumstances of the defendant;

(2) the defendant’s reputation, character, and health;

(3) the defendant’s prior criminal record, including prior releases on

recognizance or on unsecured or secured appearance bonds, and

other pending cases;

(4) the identity of responsible members of the community who will

vouch for the defendant’s reliability;

(5) violence or lack of violence in the alleged commission of the

offense;

(6) the nature of the offense charged, the apparent probability of

conviction, and the likely sentence, insofar as these factors are

relevant to the risk of nonappearance;

(7) the type of weapon used (e.g., knife, pistol, shotgun, sawed-off

shotgun, assault or automatic weapon, explosive device, etc.);

(8) threats made against victims or witnesses;

(9) the value of property taken during the alleged commission of the

offense;

(10) whether the property allegedly taken was recovered or not, and

damage or lack of damage to the property allegedly taken;

(11) residence of the defendant, including consideration of real

property ownership, and length of residence in the defendant’s

domicile;

(12) in cases where the defendant is charged with a drug offense,

evidence of selling or distribution activity that should indicate a

substantial increase in the amount of bond;

(13) consideration of the defendant’s employment status and

history, the location of defendant’s employment (e.g., whether

employed in the county where the alleged offense occurred), and the

defendant’s financial condition;

(14) sentence enhancements, if any, included in the charging

document; and

(15) any other fact or circumstance bearing on the risk of

nonappearance or on the danger to others or to the public.

(b) Specific statutory limits apply. When a statute limits a judge’s bail

authority, such statutory limits shall apply to the extent any of the amounts listed

in section (c) are in conflict therewith.

county, justice, and municipal courts in setting bail for persons charged with

bailable offenses. Except in situations where release is required in the minimum

scheduled amount pursuant to Rule 5.1(b) or (c), or any other Rule, courts may

and should exercise discretion in setting bail above or below the scheduled

amounts, as supported by consideration of the factors listed in Rule 8.2(a).

SECURED OR UNSECURED APPEARANCE BOND GUIDELINES

Recommended Range

FELONIES:

Capital felony

$25,000 to No Bail Allowed

Manslaughter (or any other

non-capital crime involving

loss of human life)

$10,000 to $1,000,000

Drug Distribution and Trafficking

$ 5,000 to $1,000,000

All other non-capital felonies

- punishable by maximum 20 years or more

$20,000 to $250,000

- punishable by maximum 10 years to 20 years $10,000 to $100,000

- punishable by maximum up to 10 years

$ 5,000 to $50,000

MISDEMEANORS (not included elsewhere in the schedule):

- punishable by maximum 1 year

$500 to $2,000

- punishable by maximum 6 mos.

$250 to $1,000

- punishable by less than 6 mos.

$100 to $500

- punishable by fine only

$50 to Max. Fine/Costs*

Misdemeanor DUI and DWLS

$500 to $2,000

Municipal Ordinance Violations

$100 to $1,000

*Maximum amount of fine(s), court costs, and statutory assessments which

might be due upon conviction.

Comment

Rule 8.2 embodies the guarantee against excessive bail provided by article

3, section 29, of the Mississippi Constitution, within the limitations stated

therein. Rule 8.2 is based on the presumption of innocence of the accused, the

constitutional right of a defendant charged with a noncapital offense to be

released on bail, and the policy that a defendant should be released pending trial

whenever possible. Under section (a), a defendant charged with an offense that

is bailable as a matter of right is eligible for a personal recognizance release

unless the judge determines that the defendant’s presence would not be

reasonably assured or that the defendant poses a real and present danger of harm

to others. See United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L.

Ed. 2d 697 (1986) (upholding the constitutionality of pretrial detention based

on dangerousness). Section (a) makes it possible to release on bail indigent

defendants on non-financial conditions that make it reasonably likely that the

defendant will appear. See Bandy v. United States, 81 S. Ct. 197, 5 L. Ed. 2d

218 (1960) (questioning constitutionality of holding indigent defendant in

custody for no reason other than the inability to raise money for bail).

Sections (a)(1) - (15) provide detailed guidance for the judge setting bond

as to the range of inquiries that should be made prior to setting the conditions

on, or the amount of, any personal recognizance or appearance bond. While no

prior rule or statute required the inquiry described in section (a), such an inquiry

has always been within the sound discretion and inherent power of a court

setting terms of release. See Lee v. Lawson, 375 So. 2d 1019, 1024 (Miss. 1979)

(suggesting similar inquiry). Section (a) is intended to provide a helpful, nonexhaustive list for any court making such an inquiry, and is written to ensure

that a judge not give inordinate weight to the nature of the present charge.

Section (b) provides that, in the event of a conflict with the amounts listed

in (c), statutory limits on a judge’s bail authority will control. See, e.g., Miss.

Code Ann. § 99-5-37 (defendant charged with certain domestic violence

offenses).

While section (c) makes clear that the judge retains discretion to set any

amount of bail above or below the suggested range, the bond guidelines set forth

in section (c) should help reduce the disparities between courts who previously

set bail without the guidance of a scheduled range. “Capital felony” is defined

in Mississippi Code Section 1-3-4.

Rule 8.3 Release after Conviction and Sentencing.

A convicted defendant shall be entitled to bail pending appeal as prescribed by

Mississippi Code Section 99-35-115. A condition of the appeal bond shall be

that the defendant will obey every order and judgment of the Supreme Court or

Court of Appeals or every order and judgment of the trial court affirmed by the

Supreme Court or Court of Appeals. The sheriff shall not accept the appeal

bond unless the appeal has been perfected. If a defendant is admitted to bail

pending appeal, the trial court clerk shall so notify the clerk of the Supreme

Court.

Comment

Rule 8.3 generally tracks former Rule 12.01 of the Uniform Rules of

Circuit and County Court. Release after conviction and sentencing is governed

by statute and uniform rule. See, e.g., Rules 29 (Appeals from Justice or

Municipal Court), 30 (Appeals from County Court), and M.R.A.P. 9 (Release

in Criminal Cases).

Rule 8.4 Conditions of Release.

(a) Mandatory Conditions. Every order of release under this Rule shall contain

the conditions that the defendant:

(1) appear in court, when required, and comply with all orders of

the court;

(2) commit no crime;

(3) promptly notify the court of any change of address; and

(4) meet with your public defender or retained attorney, as directed.

(b) Additional Conditions. An order of release may include any one (1) or

more of the following conditions reasonably necessary to secure a defendant’s

appearance or to protect the public:

(1) execution of an appearance bond in an amount specified by the

court, either with or without requiring that the defendant deposit

with the clerk security in an amount as required by the court;

(2) execution of a secured appearance bond;

(3) placing the defendant in the custody of a designated person or

organization agreeing to supervise the defendant;

(4) restrictions on the defendant’s travel, associations, or place of

abode during the period of release;

(5) restrictions on the defendant’s direct or indirect contact with any

specified person(s);

(6) return to custody after specified hours;

(7) participation in, and successful completion of, any drug, alcohol,

anger management, mental health, or other treatment required by

the court, and/or substance testing;

(8) participation in General Educational Development (GED®)

classes and testing or in any other educational activities required by

the court;

(9) electronic monitoring; or

(10) any other conditions which the court deems reasonably

necessary.

Comment

Rule 8.4 adds specific conditions of release drawn from portions of 18

U.S.C. § 3142(c) and from practice in various Mississippi courts in the exercise

of their discretion and experience in such matters. Section (b)(10) vests the

judge setting bond conditions with broad latitude to insure appearance of the

defendant and protection of the public, and gives the judge flexibility in

fashioning conditions of release.

Rule 8.5 Procedure for Determination of Release Conditions.

(a) Initial Decision. When a defendant is brought before a court for initial

appearance, a determination of the conditions of release shall be made. The

judge shall issue an order containing the conditions of release and shall inform

the defendant of the conditions, the possible consequences of their violation, and

that a warrant for the defendant’s arrest may be issued immediately upon report

of a violation.

(b) Amendment of Conditions. The court may, for good cause shown, on its

own initiative or on application of either party, modify the conditions of release,

after first giving the parties an adequate opportunity to respond to the proposed

modification.

commencement of each term of circuit court in which criminal cases are

adjudicated, the official(s) having custody of felony defendants being held for

trial, grand jury action, or extradition within the county (or within the county’s

judicial districts in which the court term is to be held) shall provide the presiding

judge, the district attorney, and the clerk of the circuit court the names of all

defendants in their custody, the charge(s) upon which they are being held, and

the date they were most recently taken into custody. The senior circuit judge, or

such other judge as the senior circuit judge designates, shall review the

conditions of release for every felony defendant who is eligible for bail and has

been in jail for more than ninety (90) days.

Comment

Rule 8.5 establishes a mechanism for setting bail, and for periodically

reviewing bail which has been set but has not been posted. These notice and

review requirements should enhance the procedure for ensuring speedy trials or

other timely dispositions of criminal cases, and should help avoid the possibility

that a person in detention is overlooked by those having custody of that person.

The conditions of release will usually be set on the arrest warrant at the

time of its issuance, pursuant to Rule 3.2(a). If not, or if the defendant cannot

meet the conditions, the defendant will be afforded a release hearing at the initial

appearance as provided by Rules 5.1 and 5.2. Thereafter, under section (b), the

conditions can be modified, to be made either more or less stringent, depending

on the circumstances. Section (c) is particularly important in requiring that the

court and other interested personnel in the judicial system receive notice prior

to each court term of the identities of those being held in custody, either without

bail or without the ability to post bail. The clerk of the circuit court shall

maintain the lists required by section (c). Section (c) also requires a review of

the detention or bail status of those who have remained in custody for more than

ninety (90) days.

Rule 8.6 Review of Conditions; Revocation of Bail.

(a) Issuance of Warrant. If it is alleged that a defendant previously released

has committed a material breach of the conditions of release, then the court

having jurisdiction over the defendant may procure the defendant’s presence in

court by issuing an order to appear before the court to show cause, or by issuing

an arrest warrant under Rule 3.1. Such action shall be predicated upon a motion

of the prosecuting attorney, or the court’s own motion, which states with

particularity:

(1) the facts or circumstances alleged to constitute a material breach

of the conditions of release;

(2) that material misrepresentations or omissions of fact were made

in securing the defendant’s release; or

(3) that revocation is otherwise required by law.

If action is taken on motion of the prosecuting attorney, then a copy of the

motion shall be served with the order or warrant, and a hearing shall be held on

the motion without unnecessary delay.

(b) Hearing; Review of Conditions; Revocation of Release. If, after a hearing

on the matters set forth in the motion, the court finds that the released defendant

has materially breached the conditions of release, the court may modify the

conditions or revoke the release. If a ground alleged for revocation of the release

is that the defendant has committed a criminal offense or has made

misrepresentations or omissions in informing the court of other charges pending

against the defendant, the court may modify the conditions of release or revoke

the release, if the court finds that there is probable cause to believe that the

defendant committed the other pending offense(s).

Constitution. In cases governed by Article 3, section 29(2) of the Mississippi

Constitution of 1890, on motion of the prosecuting attorney or on the court’s

own motion, a court having jurisdiction over the defendant may revoke the

defendant’s bail.

Comment

Rule 8.6(a) permits either a warrant or a summons to be issued to take the

person into custody for bail review or revocation proceedings. Section (c) is in

accordance with article 3, section 29(2) of the Mississippi Constitution and

governs situations where one previously admitted to bail for a felony has been

charged with a new felony offense punishable by more than five (5) years of

imprisonment. Upon finding probable cause for the new offense, either by the

reviewing court or another court with jurisdiction (such as the court in which the

new charge has been filed), this constitutional provision requires revocation of

the prior bail and directs that the person will not be admitted to further bail. See

Dendy v. State, 931 So. 2d 608, 614-15 (Miss. Ct. App. 2005), cert. denied, 933

So. 2d 303 (Miss. 2006).

Rule 8.7 Transfer and Disposition of Bond.

(a) Transfer Upon Supervening Indictment. An appearance bond or release

order issued to assure the defendant’s presence for proceedings following the

filing of a charging affidavit shall automatically be transferred to the same,

related, or lesser charge subsequently prosecuted by indictment unless,

following indictment, the judge presiding, for good cause, shall order revocation

or modification of the conditions of release, as provided in Rule 8.6(a) and (b).

(b) Filing and Custody of Appearance Bonds and Security. Appearance

bonds and security shall be filed with the clerk of the court in which the case is

pending. Whenever the case is transferred to another court, any appearance bond

and security shall be transferred also.

surety shall be governed by Mississippi Code Sections 99-5-27 and 99-5-29. In

the event that a Professional Bail Agent, Soliciting Bail Agent, or Insurer has

provided a surety bond or other form of bail for a defendant without first

obtaining payment in full for the premium on the bond, that defendant may not

be surrendered because the defendant, or anyone assuming financial

responsibility for the bond premium on the defendant’s behalf, has failed to

make any payment to the surety following release of the defendant.

(d) Forfeiture. If at any time it appears to the court that a defendant has failed

to appear, the court shall proceed as appropriate pursuant to Mississippi Code

Sections 99-5-25, 21-23-8, or 99-5-11, and any related statutes or regulations

which may apply.

(e) Cancellation of Bond. At any time that the court finds there is no further

need for an appearance bond, the court shall cancel the appearance bond and

order the return of any security deposited with the clerk.

Comment

Rule 8.7(a) is consistent with current Mississippi practice regarding

appearance bonds. The last sentence of section (c) addresses the situation where

a bail bond company attempts to surrender the principal solely on the basis of

nonpayment of the fee or commission, or any portion thereof, which was not

collected at the time of issuance of the bond. Mississippi Code Section 8339-25 plainly directs that the professional bail agent “shall charge and collect”

the premium, commission, or fee due. However, if the bail agent nevertheless

elects to contract with the principal to issue bail on the payment of less than the

full amount due, any subsequent collection effort is merely a contractual matter

which may be resolved in civil court, not in criminal court by means of

incarceration for nonpayment. See Brooks v. Pennington, 995 So. 2d 733

(Miss. Ct. App. 2007). The statutes governing bail permit wide latitude to the

surety to surrender a person on bail; however, nonpayment of a contractual

obligation between the principal and professional bail agent is not, standing

alone, a proper basis for surrender. Section (d) defers to the extensive statutory

procedure governing forfeiture of bail bonds provided in Mississippi Code

Sections 99-5-25, 21-23-8, and 99-5-11.

Rule 9 Trial Setting

(a) Trial Docket. Within sixty (60) days after arraignment (or waiver thereof),

the court shall enter an order setting a date for trial. Trial shall be set for no later

than two-hundred-and-seventy (270) days after arraignment (or waiver thereof).

A docket of cases set for trial shall be maintained by the clerk or the court

administrator. Cases set by the judge for trial must be ready at the appointed

time.

(b) Criminal Docket to Have Priority. Insofar as is practicable, trials of

criminal cases shall have priority over trials of civil cases.

granted by written order of the court on its own motion, or on the motion of a

party stating, with specificity, the reasons for the continuance.

Rule 10 Presence of Defendant, Witnesses, and Spectators

Rule 10.1 Right of Defendant to be Present; Waiver.

(a) Right to Be Present. The defendant has the right to be present at the

arraignment and at every stage of the proceedings. A corporate criminal

defendant may appear by counsel for all purposes at any proceeding.

(b) Waiver of the Right to Be Present.

(1) Except as provided in subsection (2), a defendant may waive the right to be

present at any proceeding in the following manner:

(A) with the consent of the court, by a knowing, intelligent, and

explicit waiver in open court or by a written waiver executed by the

defendant and by the defendant’s attorney of record, filed in the

case; or

(B) by the defendant’s absence from any proceeding, if the court

finds that such absence was voluntary and constitutes a knowing

and intelligent waiver of the right to be present.

(2) A defendant may not waive the right to be present:

(A) during the imposition of his/her sentence in a felony case; or

(B) if the defendant is not represented by counsel, except in minor

misdemeanor cases where the potential punishment is a fine only

and carries no potential for the loss of liberty.

to completion, including the return of the verdict.

(d) Unexcused Defendant. If a defendant is not present at the trial, or any stage

of the proceedings, and the defendant’s presence has not been waived or the

absence has not been excused, the court, by order, may direct law enforcement

officers forthwith to bring the defendant before the court.

Comment

The right of the defendant to be present protects various rights of the

accused. See Miss. Const. art. 3, § 26 (“In all criminal prosecutions the accused

shall have a right to be heard by himself or counsel, or both [and] to be

confronted by the witnesses against him”).

Section (b) allows a defendant to waive the right to be present, consistent

with prior practice. The standards for waiver are those required for waiver of

other constitutional rights. See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct.

1019, 82 L. Ed. 1461 (1938) (“an intentional relinquishment or abandonment of

a known right or privilege”).

The defendant may make an express waiver or the defendant may waive

the right through voluntary absence from the proceeding. See Wales v. State,

73 So. 3d 1113 (Miss. 2011); Taylor v. United States, 414 U.S. 17, 94 S. Ct.

194, 38 L. Ed. 2d 174 (1973).

A defendant deemed to have waived the right to be present pursuant to

subsection (b)(1)(B) might still be involuntarily absent and should be permitted

to prove that fact in a subsequent or collateral proceeding. The decision to

proceed in light of a voluntary waiver pursuant to subsection (b)(1)(B) is

discretionary with the court. The court is in no instance required to proceed.

Rule 10.2 Consequences of Defendant’s Disruptive Behavior.

(a) Disruptive Conduct. A defendant who engages in disruptive or disorderly

conduct may be removed and shall forfeit the right to be present at that

proceeding.

(b) Restoration of Right. The court shall grant any defendant so removed

reasonable opportunities to return to the court upon the defendant’s personal

assurance of good behavior and/or such other conditions as the court may

require. Any subsequent disruptive conduct on the part of the defendant may

result in removal.

means to enable a defendant removed from a proceeding under this Rule to hear,

observe or be informed of the further course of the proceeding, and to consult

with counsel at reasonable intervals.

Comment

Rule 10.2 is based upon Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25

L. Ed. 2d 353 (1970), r’hg den. 398 U.S. 915. Under Rule 10.2(a), a defendant,

by disruptive conduct, may forfeit the right to be present, even in circumstances

where the right could not be waived under Rule 10.1(b)(2). If the defendant is

pro se, the court should consider appointing advisory counsel even if the

defendant had refused to accept appointed counsel.

Section (c) is intended to encourage use of any practical audiovisual

devices in communicating the progress of the proceeding to the defendant.

The court’s contempt power also is applicable to such situations. See Rule

32.

Rule 10.3 Presence of Witnesses and Spectators.

(a) Witnesses. Pursuant to Rule 615 of the Mississippi Rules of Evidence, the

court may, and at the request of either party shall, exclude prospective witnesses

from the courtroom. The court also shall direct witnesses not to communicate

with each other concerning the case until all have testified. If the court finds that

a party’s claim that a person is a prospective witness is not made in good faith,

the person may be allowed to remain in the courtroom. Once a witness has

testified on direct examination and has been made available to all parties for

cross-examination and excused by the court, the witness shall be allowed to

remain in the courtroom unless the court finds, upon application of a party or

witness, that the presence of the witness would be prejudicial to a fair trial. This

Rule does not authorize excluding a person whose presence a party shows to be

essential to presenting the party’s claim or defense.

(b) Spectators.

(1) Proceedings to be Open. All proceedings shall be open to the public unless

the court finds, upon application of the defendant, that an open proceeding

presents a danger to the defendant’s right to a fair trial by an impartial jury.

(2) Exception for Certain Crimes. Pursuant to Article 3, Section 26 of the

Mississippi Constitution, the court may exclude from the courtroom all persons

except those necessary in the conduct of the trial.

(3) Victims. Pursuant to Article 3, Section 26A of the Mississippi Constitution,

the alleged victim has the right to be present throughout all criminal proceedings

when authorized by law. If the alleged victim is a witness, then Rule 10.3(a)

controls.

engaging in disorderly, disruptive, or contemptuous conduct, or when their

conduct or presence constitutes a threat or menace to the court, parties,

attorneys, witnesses, jurors, officials, members of the public, or a fair trial.

(d) Electronic Coverage of Proceedings. Electronic coverage of judicial

proceedings shall be governed by the Mississippi Rules for Electronic and

Photographic Coverage of Judicial Proceedings.

Comment

Rule 10.3(a) is consistent with Rule 615 of the Mississippi Rules of

Evidence. The policy underlying the sequestration rule is that, by preventing a

witness from hearing the testimony of another witness, the risk of fabrication,

collusion, inaccuracy, and shaping of testimony is minimized. Because it is only

at the designated phases where exclusion promotes the truth-finding process,

prospective witnesses are permitted to attend during other phases, such as jury

selection and legal argument. It is believed that the rule harmonizes the interest

of a fair trial with the interest of witnesses in being personally present at the

trial. The trial court retains discretion to exclude witnesses from the courtroom

in those rare cases where it can be demonstrated that a fair trial cannot be held

without such exclusion.

Rule 10.3(b)(1) sets forth the right of a defendant to a public trial as

guaranteed by Article 3, Section 26, of the Mississippi Constitution, and

subsection (b)(2) sets forth the exception for certain crimes contained therein.

Rule 10.3(b)(3) embodies an alleged victim’s right to be present set forth in

Article 3, Section 26A, of the Mississippi Constitution and Mississippi Code

Section 99-43-21. Mississippi Code Section 99-43-3(t) defines “victim” to

mean “a person against whom the criminal offense has been committed, or if the

person is deceased or incapacitated, the lawful representative.” Mississippi

Code Section 99-43-3(h) defines “criminal proceeding” as “a hearing, argument

or other matter scheduled by and held before a trial court but does not include

a lineup, grand jury proceeding or other matter not held in the presence of the

court.”

Section (c) gives the judge clear authority to clear the courtroom of any

and all persons whose conduct is disruptive of the proceedings or whose

presence poses a threat to others or to the proceedings.

Rule 11 Change of the Place of Trial

Rule 11.1 Change of Venue.

(a) Grounds. The trial judge, for good cause, may grant the defendant a change

of venue. Good cause includes a satisfactory showing made to the court in

writing, supported by the affidavits of two (2) or more credible persons, that the

defendant cannot have a fair and impartial trial in the county where the offense

is charged to have been committed.

(b) Prejudicial Pretrial Publicity. Whenever the grounds for change of venue

are based on pretrial publicity, the trial judge shall consider the level of adverse

publicity (both in extent of coverage and its inflammatory nature) and the

potential effect of such publicity on the venire.

the earliest opportunity after learning of the cause for challenge.

(d) Venue Upon Remand. When an action is remanded by an appellate court

for a new trial or jury sentencing, all rights to request a change of venue may be

asserted de novo.

Comment

Rule 11.1(a) is in accord with Article 3, Section 26 of the Mississippi

Constitution, Mississippi Code Section 99-15-35, and former Rule 6.06 of the

Uniform Rules of Circuit and County Court. If the request for a change of

venue is based on pretrial publicity, section (b) requires the trial judge to

consider the level of adverse publicity and its potential effect on the venire. See

McCune v. State, 989 So. 2d 310, 317 n.14 (Miss. 2008).

Under section (d), an application for change of venue may be made when

the matter is remanded by an appellate court for a new trial or jury sentencing.

See Maye v. State, 49 So. 3d 1124, 1133 (Miss. 2010) (citing State v. Caldwell,

492 So. 2d 575, 577 (Miss. 1986)).

Rule 11.2 Transfer to Another County.

(a) Proceedings on Transfer. If a change of venue is granted pursuant to Rule

11.1, the judge shall direct that a certified copy of the order granting the change

of venue be transmitted to the circuit clerk of the county to which the venue has

been changed. The circuit clerk of the county to which the venue has been

changed must file the certified order and designate a docket number for said

case for future reference. Unless otherwise directed by the judge, all pleadings,

motions, orders of the court, and other matters thereafter filed shall bear both the

original number of the county of original venue and the assigned number of the

county of changed venue, and shall be filed with the circuit clerk of the county

of original venue. The judge may hear or determine all pretrial and post-trial

matters in the county to which venue has been changed or in any county of the

judge’s district.

(b) Place of Trial. In all cases in which venue has been changed, it shall be

within the judge’s discretion, after the jury has been selected, to conduct the trial

in the county of original venue or in the county to which venue has been

transferred.

including the cost of transporting the jury from one county to another where the

same is ordered, shall be borne by the county of original venue. The clerk of the

county of original venue shall handle any appeal.

Comment

Rule 11.2 continues the practice under former Rule 6.06 of the Uniform

Rules of Circuit and County Court, as well as prior statutory practice. See Miss.

Code. Ann. §§ 99-15-37, 99-15-45.

Rule 12 Mental Examinations

Rule 12.1 Mental Competency; Definition.

(a) Mental Competency. There is a presumption of mental competency. In

order to be deemed mentally competent, a defendant must have the ability to

perceive and understand the nature of the proceedings, to communicate

rationally with the defendant’s attorney about the case, to recall relevant facts,

and to testify in the defendant’s own defense, if appropriate. The presence of

a mental illness, defect, or disability alone is not grounds for finding a defendant

incompetent to stand trial. If as a result of mental illness, defect, or disability,

a defendant lacks mental competency, then the defendant shall not be tried,

convicted, or sentenced for a criminal offense.

(b) Mental Illness, Defect, or Disability. Mental illness, defect, or disability

means a psychiatric or neurological disorder that is evidenced by behavioral or

emotional symptoms, including congenital mental conditions, conditions

resulting from injury or disease, or developmental disabilities.

Comment

“[T]he criminal trial of an incompetent defendant violates due process.”

Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S. Ct. 1373, 1376, 134 L. Ed. 2d

498 (1996) (citation omitted). See also Caylor v. State, 437 So. 2d 444, 445

(Miss. 1983) (citing Emanuel v. State, 412 So. 2d 1187, 1188 (Miss. 1982)).

The Mississippi Supreme Court has outlined the requisite abilities for a

defendant to be deemed mentally competent. See Jay v. State, 25 So. 3d 257,

261 (Miss. 2009); Martin v. State, 871 So. 2d 693, 697-98 (Miss. 2004). In that

analysis, there is a presumption of mental competency. See Evans v. State, 725

So. 2d 613, 660 (Miss. 1997). Rule 12.1 addresses only the defendant’s

competency to stand trial, and not the defendant’s possible insanity at the time

of the alleged offense. See Parker v. State, 30 So. 3d 1222, 1230-31 (Miss.

2010); Medina v. California, 505 U.S. 437, 448, 112 S. Ct. 2572, 2579, 120 L.

Ed. 2d 353 (1992) (“there are significant differences between a claim of

incompetence and a plea of not guilty by reason of insanity.”); Caylor, 437 So.

2d at 447 n.1. If reasonable grounds exist to doubt the defendant’s competence

to stand trial, the procedures in Rules 12.2 through 12.6 should be followed.

Rule 12.2 Examination of Defendant’s Mental Condition.

(a) Competency to Stand Trial or Be Sentenced. If at any time before or after

indictment, the court, on its own motion or the motion of any party, has

reasonable grounds to believe that the defendant is mentally incompetent, the

court shall order the defendant to submit to a mental examination.

(b) Insanity Defense. If the defendant has timely raised a defense of insanity

pursuant to Rule 17.4(b), the court, on its own motion or the motion of any

party, may order the defendant to submit to a mental examination to investigate

the defendant’s mental condition at the time of the offense.

on its own motion or the motion of any party, has reasonable grounds to believe

that the defendant’s intellectual disability bars imposition of a sentence of death,

the court may order the defendant tested and/or examined to determine whether

the defendant is intellectually disabled.

(d) Contents of Motion; Order. The motion shall state the facts upon which

the mental examination is sought. The mental examination shall be conducted

by a competent psychiatrist and/or psychologist approved by the court.

(e) Medical and Criminal History Records. All available medical and

criminal history records shall be provided to the examining mental health expert

as and when ordered by the court. A certificate of compliance shall be filed with

the court documenting that the records were submitted as ordered.

Comment

Rule 12.2 includes standards provided in former Rules 9.06 and 9.07 of

the Uniform Rules of Circuit and County Court. The determination of the

defendant’s mental competency should be made at the earliest practicable date.

The United States Supreme Court has held that the failure to make a

determination of competency when there are reasonable grounds to doubt such

is fundamental constitutional error. See Drope v. Missouri, 420 U.S. 162, 95 S.

Ct. 896, 43 L. Ed. 2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S. Ct.

836, 15 L. Ed. 2d 815 (1966). See also House v. State, 754 So. 2d 1147, 1152

(Miss. 1999).

Sections (a) and (b) make clear that the determination of the defendant’s

competency to stand trial is separate and distinct from the determination of the

defendant’s sanity at the time of the offense. An examination to investigate

competency may be combined with an examination to investigate the

defendant’s sanity at the time of the offense, provided that the judicial order

makes a clear distinction between the two purposes for evaluation to ensure that

the correct legal criteria are applied. While the test for competency is distinct,

as a matter of law, from the test for sanity at the time of the offense, the reports

prepared may contain information having a substantial bearing on both issues.

Section (c) extends this process to cases in which there are reasonable

grounds to believe the defendant’s intellectual disability precludes the

imposition of a death sentence. See Chase v. State, 873 So. 2d 1013, 1027

(Miss. 2004) (citing Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L.

Ed. 2d 335 (2002)).

Rule 12.3 Appointment of Experts.

(a) Grounds for Appointment. If the court determines that reasonable grounds

for a mental examination exist, it shall appoint a competent psychiatrist and/or

psychologist to examine the defendant and, if necessary, to testify regarding the

defendant’s mental condition. The court has discretion to appoint more than one

(1) examiner.

(b) Examination; Commitment. The court may order that a defendant be

examined in an appropriate mental health facility, and it may commit a

defendant to the Mississippi State Hospital or other appropriate mental health

facility for no longer than reasonably necessary to conduct the examination if:

(1) the defendant cannot be examined on an outpatient basis;

(2) examination in an outpatient setting is unavailable; or

(3) commitment for examination is indispensable to a clinically

valid diagnosis and report.

The examination and inpatient consultation shall be in the least restrictive

appropriate setting.

(1) Opinion on Competency. A psychiatrist and/or psychologist appointed by

the court pursuant to this Rule shall submit a report containing an opinion as to

whether the defendant is competent, and the basis therefor. The report may also

include additional findings and opinions concerning whether the defendant’s

mental condition creates a present danger to the defendant and/or others.

(2) Cause and Treatment of Incompetency. If the opinion referenced in (c)(1)

is that the defendant is incompetent under the standards in Rule 12.1, the report

shall also state the psychiatrist’s and/or psychologist’s opinion of:

(A) the condition causing the defendant’s incompetency and the

nature thereof;

(B) the treatment, if any, required for the defendant to attain

competency;

defendant’s therapeutic needs and potential danger to the defendant

and/or others, and an explanation of appropriate treatment

alternatives;

(D) the likelihood of the defendant’s attaining competency under

treatment and the probable duration of the treatment; and

(E) the availability of the various types of acceptable treatment in

the local geographic area, specifying the agencies or the settings in

which the treatment might be obtained and whether the treatment

would be available on an outpatient basis.

(3) Opinion on Mental Condition at Time of the Offense. In addition, if the court

so orders, the report shall contain a statement of the psychiatrist’s and/or

psychologist’s opinion of the following:

(A) the mental condition of the defendant at the time of the alleged

offense;

(B) if the psychiatrist’s and/or psychologist’s opinion is that at the

time of the alleged offense the defendant suffered from a mental

disease or defect, the relation, if any, of such to the alleged offense,

including:

(i) whether the defendant knew the nature and quality

of the defendant’s actions; and

(ii) if so, whether the defendant knew that the actions

were wrong.

and

(4) Opinion on Intellectual Disability in Death Penalty Cases. In addition, if the

court so orders in a death penalty case, the report shall contain a statement of the

psychiatrist’s and/or psychologist’s opinion as to whether the defendant is

intellectually disabled and, if so, to what extent.

(d) Additional Expert Assistance. For good cause shown, the court may

appoint additional experts and order the defendant to submit to physical,

neurological, psychiatric, or psychological examinations, if necessary for an

adequate determination of the defendant’s mental condition.

(e) Costs. Any cost or expense in connection with the court-ordered mental

examination(s) shall be paid by the county in which such criminal action

originated.

Comment

Consistent with former Rule 9.06 of the Uniform Rules of Circuit and

County Court and Mississippi Code Section 99-13-11, Rule 12.3(a) provides

that where “reasonable grounds” exist, the court must appoint a competent

psychiatrist and/or psychologist to examine the defendant and testify regarding

the defendant’s mental condition.

Section (b) ensures that a defendant will not be subjected to confinement

in a mental health facility, unless a less restrictive alternative (such as local

outpatient services) is unavailable, and it ensures that any confinement will be

for only the minimum time required to conduct necessary examinations. See

Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972)

(indefinite commitment based solely on incompetence to stand trial is

unconstitutional). Once a court-ordered examination is completed, the

examiner’s report shall be filed with the court clerk, as provided in Rule 12.4.

Because the Rule 12.3 examination may also provide information

concerning a possible insanity defense, the psychologist and/or psychiatrist may

be required, pursuant to Rule 12.3(c)(3), to report on the mental condition of the

defendant at the time of the alleged offense and on the relationship, if any, of the

defendant’s mental disease or defect to the alleged criminal act. Rule 12.3(c)(3)

is not intended to establish a new legal test for insanity, or to change the test that

was in use before adoption of these Rules. See Nolan v. State, 61 So. 3d 887,

895-97 (Miss. 2011) (citations omitted) (“Mississippi follows the M’Naghten

standard for determining whether a defendant was sane at the time of the

crime[,]” and has repeatedly declined to abandon that standard). Rule 12.3

merely requires the psychiatrist and/or psychologist to describe the defendant’s

mental condition in broad medical language. See Roundtree v. State, 568 So.

2d 1173 (Miss. 1990). Whether a person is mentally ill, and to what extent, is

a medical judgment that a psychologist and/or psychiatrist should make; whether

the defendant is sufficiently ill to be exonerated of criminal responsibility, i.e.,

whether the defendant is legally insane, is a legal judgment for the jury or trier

of fact to make after proper instructions. Section (c)(4) extends these

procedures to the question of the defendant’s possible intellectual disability in

death penalty cases. See Chase v. State, 873 So. 2d 1013, 1027 (Miss. 2004)

(citing Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335

(2002)).

Section (e) expressly provides for payment of the expenses of such

professionals, within limits provided by law. See Miss. Code Ann. § 99-13-11.

Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), which

holds that an indigent defendant is constitutionally entitled to a psychiatrist

provided at state expense, is applicable when the defendant demonstrates to the

trial judge that the defendant’s sanity (or insanity) at the time of the offense is

to be a significant factor at trial or that the defendant’s mental state is likely to

be a significant factor. Where a defense-consultant psychologist and/or

psychiatrist is constitutionally required, such an expert may be appointed under

Rule 12.3(a).

Rule 12.4 Disclosure of Mental Health Evidence; Reports of Appointed

Experts.

(a) Generally. The reports of experts made pursuant to Rule 12.3 shall be

submitted to the court clerk within ten (10) working days of the completion of

the examination. All original reports shall be filed with the clerk, under seal.

Upon receipt, the clerk shall copy and distribute the expert’s report to the trial

judge and to defense counsel. Defense counsel may redact any statements of the

defendant (or summaries thereof) concerning the offense charged. A copy of the

redacted report must be returned to the clerk within five (5) working days of its

receipt and made available to the State. Any dispute regarding the extent of

redaction shall be resolved by the trial judge.

(b) Mandatory Disclosure. If the defendant raises the affirmative defense of

insanity, the State shall be furnished unredacted copies of the reports of experts

made pursuant to Rule 12.3.

Comment

Under Rule 12.4, all expert reports produced pursuant to Rule 12 are to be

disclosed to the court, to the defendant’s attorney, and to the prosecuting

attorney. Only one item of the report is excepted -- the defendant’s statements

concerning the actual offense charged. The United States Supreme Court has

recognized that use of a defendant’s statements during a court-ordered

examination may compromise the defendant’s right against self-incrimination.

See Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981)

(defendant’s privilege against self-incrimination was violated when he was not

advised of right to remain silent during court-ordered examination and

prosecution introduced statements). See also MRE 503 cmt. (“No statement

made by an accused in the course of an examination into competency to stand

trial is admissible on the issue of guilt”). Thus, the prosecution may not make

use of evidence obtained by compulsory mental examination of the defendant

unless the defendant offers, either directly or through cross-examination,

evidence in support of the affirmative defense of insanity. See Powell v. Texas,

492 U.S. 680, 683-84, 109 S. Ct. 3146, 3149, 106 L. Ed. 2d 551 (1989)

(defendant waives the privilege if the defendant introduces expert testimony on

mental condition).

Rule 12.5 Hearing and Orders.

(a) Hearing. After submission of the reports, the court, upon its own motion

or the motion of any party, shall promptly hold a hearing to determine the

defendant’s competency. The parties may introduce other evidence regarding

the defendant’s mental condition or, by stipulation (either written or stated on

the record in open court), submit the matter on the experts’ reports.

(b) Procedure. The competency hearing is a critical stage of the proceedings,

at which the defendant shall be represented by counsel. The defendant shall be

afforded an opportunity to testify, to present evidence, to subpoena witnesses,

and to confront and cross-examine witnesses who appear at the hearing.

to stand trial, then the court shall make the finding a matter of record and order

the case to proceed to trial.

(d) Finding of Incompetence. If the court finds that the defendant is

incompetent to stand trial, then the court may commit the defendant to the

Mississippi State Hospital, other appropriate mental health facility, or other

place of treatment, either inpatient or outpatient, based on the report of a

psychiatrist or psychologist pursuant to Rule 12.3(c)(2)(C) and (E). The order

of commitment shall be filed with the court clerk and shall require that the

defendant be examined by staff psychiatrist(s) and/or psychologist(s), and a

written report be furnished to the court not less than every four (4) calendar

months, stating:

(1) Whether there is a substantial probability that the defendant will

become mentally competent to stand trial within the foreseeable

future; and

(2) Whether progress toward competency is being made.

(e) Release from Commitment. If, within a reasonable time after entry of a

commitment order, there is neither a determination that there is a substantial

probability that the defendant will become mentally competent to stand trial nor

progress toward competency, the court shall order that civil proceedings as

provided in Mississippi Code Section 41-21-61, et. seq., be instituted. Said

proceedings shall advance notwithstanding that the defendant has criminal

charges pending against him/her. The defendant shall remain in custody until

determination of the civil proceedings.

Comment

Under Rule 12.5(a), upon the court’s own motion or the motion of any

party, a competency hearing shall be conducted. But in the absence of such

motion, a hearing is permissible, but not mandatory. This represents a

departure from practice under former Rule 9.06 of the Uniform Rules of Circuit

and County Court.

Under section (d), if the court finds the defendant to be incompetent, it

shall commit the defendant to an appropriate mental health facility or other place

of treatment. No order made under this section is to be effective for longer than

four (4) months, thereby insuring a frequent review of each incompetent

defendant’s status and progress. See O’Connor v. Donaldson, 422 U.S. 563,

575, 95 S. Ct. 2486, 2493, 45 L. Ed. 2d 396 (1975) (“even if . . . involuntary

confinement was initially permissible, it could not constitutionally continue after

that basis no longer existed”); Jackson v. Indiana, 406 U.S. 715, 720, 92 S. Ct.

1845, 1849, 32 L. Ed. 2d 435 (1972) (a state “cannot constitutionally commit [a]

petitioner for an indefinite period simply on account of his incompetency to

stand trial on the charges filed against him”). Sections (d) and (e) largely

continue the procedure applicable under former Rule 9.06 of the Uniform Rules

of Circuit and County Court.

Rule 12.6 Subsequent Hearings.

(a) Grounds. The court shall hold a hearing to assess the defendant’s

competency:

(1) on receiving a written report from a treating mental health

professional stating that, in his/her opinion, the defendant has

become competent to stand trial;

(2) on motion of either party, accompanied by the certificate of a

mental health expert stating that, in the expert’s opinion, the

defendant is competent to stand trial; or

(3) on the court’s own motion.

The parties may, by stipulation (either written or stated on the record in open

court), submit the matter on the experts’ reports.

(b) Finding of Competency. If the court finds that the defendant is competent

to stand trial, the regular proceedings shall recommence without delay. The

defendant shall be entitled to a rehearing of any proceeding if there are

reasonable grounds to believe the defendant was prejudiced by the defendant’s

previous incompetency.

remains incompetent, the court shall proceed in accordance with Rules 12.5(d)

or (e).

Comment

Section (c) directs the court, upon finding that the defendant remains

incompetent, to reconsider the alternatives presented in Rules 12.5(d) and (e).

Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), held

that the continuing commitment of a defendant must be justified by an

appropriate showing by the state. Accordingly, the initial findings of the trial

court are not relevant at this point, and questions regarding the continued

incompetency of the defendant are to be considered by the trial court de novo.

Rule 13 The Grand Jury

Rule 13.1 Selection and Preparation of Grand Jurors.

(a) Summons. Grand jurors shall be summoned and impaneled as provided by

law.

(b) Service of Grand Jury.

(1) Generally. Grand juries may be impaneled and serve both in term time and

vacation.

(2) Number of Grand Jurors. The grand jury shall consist of at least fifteen (15)

persons, but not more than twenty-five (25) persons, the exact number to be

within the discretion of the judge impaneling the jury. If during the service of

a grand jury the number of grand jurors able to serve on the grand jury shall

become less than fifteen (15), then the circuit judge may have additional grand

jurors summoned, impaneled, and charged in the same manner as the original

grand jurors.

(3) Convening the Grand Jury. Upon impanelment, a grand jury may be

convened and reconvened by order of the court. The grand jury will continue to

serve until the next grand jury is impaneled and it may return indictments to

court in term time or vacation notwithstanding intervening terms of court

between the time the grand jury is impaneled and the time an indictment is

returned.

grand jurors shall be examined by the court, on oath, touching their

qualifications. After the grand jurors have been sworn and impaneled, no

objection shall be raised, by plea or otherwise, to the grand jury, but the

impaneling of the grand jury shall be conclusive evidence of its competency and

qualifications. However, any party interested may challenge or except to the

array for fraud.

Comment

“Historically and at present, a grand jury is an independent body

empowered with the authority to investigate potential crimes and, if probable

cause is found, to indict for criminal offenses.” Entergy Mississippi, Inc. v.

State, 132 So. 3d 568, 572 (Miss. 2014).

Rule 13.1 follows former Rule 7.02 of the Uniform Rules of Circuit and

County Court, and incorporates the procedure for summoning and impaneling

grand juries provided in Mississippi Code Section 13-5-1, et. seq. See Miss.

Const. art. 14, § 264 (“The Legislature shall, by law, provide for the

qualifications of grand and petit jurors. The Legislature shall provide, by law,

for procuring a list of persons so qualified, and the drawing therefrom of grand

and petit jurors”). Rule 13.1(c) tracks the language in Mississippi Code Section

13-5-43.

Rule 13.2 Instructions, Duties, and Powers of Grand Jury.

(a) Charge to the Grand Jury.

(1) By Whom. Only the circuit judge may deliver the charge to the grand jury,

except that the circuit clerk or deputy court clerk may read the charge as

proposed by the circuit judge when the judge shall be unable to deliver the

charge by reason of physical infirmity.

(2) Charge. The circuit judge shall charge the grand jury according to the

matters required by law as the judge deems fit and proper. A sample charge

which may be used is attached as an Appendix to these Rules.

(b) Examination of County Records. The grand jury shall have free access at

all proper hours to the papers, records, accounts and books of all county officers

for all examinations which it may see fit to make, and may make report to the

court in relation thereto.

Comment

Rule 13.2(a) is largely derived from former Rule 7.01 of the Uniform

Rules of Circuit and County Court. Rule 13.2(b) incorporates the provisions of

Mississippi Code Section 13-5-57. See also Entergy Mississippi, Inc. v. State,

132 So. 3d 568, 572 (Miss. 2014) (quoting Ex parte Jones County Grand Jury,

First Judicial Dist., 705 So. 2d 1308, 1315 (Miss. 1997)) (“Grand juries have

‘broad investigative power and wide latitude in conducting an investigation’”).

Rule 13.3 Grand Jury Foreperson.

(a) Selection of Foreperson; Oath.

(1) Foreperson. The court shall appoint a foreperson of the grand jury to whom

the following oath shall be administered in open court, in the presence of the

other grand jurors:

You, as foreperson of this grand inquest, shall diligently inquire

into, and true presentment make, of all such matters and things as

shall be given you in charge, or otherwise come to your knowledge,

touching the present service. The counsel of the state, your fellows,

and your own you will keep secret. You shall not present any

person through malice, hatred or ill will, nor shall you leave any

person unpresented through fear, favor or affection, or for any

reward, hope or promise thereof, but in all your presentments, you

shall present the truth, the whole truth, and nothing but the truth, to

the best of your skill and understanding. So help you God.

(2) Oath of Other Grand Jurors. The following oath shall be administered to

the other grand jurors:

The same oath that your foreperson has now taken before you on

the foreperson’s part, you, and each of you, shall well and truly

observe, and keep on your respective parts. So help you God.

(3) Replacement of Foreperson. If a foreperson becomes unable to continue

service as a grand juror, the court shall appoint another member of the grand

jury as replacement. The fact that the original foreperson was replaced shall not

be grounds for attacking the validity of the acts or indictments of the grand jury.

(b) Powers and Duties of Foreperson. The foreperson is empowered to

preside over the grand jury proceedings, issue or cause to be issued subpoenas

(ad testificandum and duces tecum), and swear all witnesses. A record shall be

kept by the foreperson and returned to court, certified and signed by the

foreperson, of the names of all witnesses sworn before the grand jury. The

foreperson shall also submit a written report of the proceedings of the grand jury

to the court or clerk; endorse any indictment returned by the grand jury as a

“True Bill” and sign the foreperson’s name thereto; and return a “No True Bill”

list to the circuit clerk, to be kept under seal, although the clerk is allowed to

disclose to a defendant that his/her case has received a “No True Bill.”

Comment

Rule 13.3 is based, in part, on former Rule 7.02 of the Uniform Rules of

Circuit and County Court. The oaths in this Rule are taken from Mississippi

Code Section 13-5-45. Such oaths may be administered to all grand jurors at the

same time. The powers and duties of the foreperson are derived from

Mississippi Code Section 13-5-63 and Entergy Mississippi, Inc. v. State, 132

So. 3d 568, 574 (Miss. 2014). They should be included in the charge to the

grand jury.

Rule 13.4 Recalcitrant Witnesses; Contempt.

(a) Recalcitrant Witnesses. When a witness under examination before the

grand jury refuses to testify, to answer a question or to give evidence, the

foreperson and/or the district attorney shall present to the court the question or

evidence requested and the refusal of the witness. If, after inquiry, the court

decides that the witness is bound to testify, answer, or give the evidence, the

court shall so inform the witness. If the witness persists in refusing to testify,

answer the question, or give evidence, the court shall proceed with the witness

as in cases of similar refusal in other judicial proceedings.

(b) Request for Contempt Proceedings. The foreperson and/or the district

attorney may request the court to initiate a contempt proceeding against any

person whose conduct violates these Rules or disrupts the grand jury

proceedings.

Comment

Rule 13.4(a) is derived from former Rule 7.05 of the Uniform Rules of

Circuit and County Court. Rule 13.4(b) authorizes the foreperson and/or the

district attorney to request the court to employ its enforcement powers to secure

compliance with these Rules through a contempt proceeding under Rule 32.3.

Rule 13.5 Persons Authorized to be Present During Sessions of the Grand

Jury; Grand Jury Secrecy.

(a) Persons Authorized to be Present. No person other than the grand jurors,

the witness under examination, prosecutors authorized to present evidence, and

the interpreter, if any, shall be present during sessions of the grand jury. No

person other than the grand jurors shall be present during their deliberation and

voting.

(b) Grand Jury Secrecy.

(1) Generally. A grand juror, except when called as a witness in court, shall

keep secret the proceedings and actions taken in reference to matters brought

before the grand jury for six (6) months after final adjournment of the grand

jury, and the name and testimony of any witness appearing before the grand jury

shall be kept secret.

(2) Announcements Concerning Deliberations Prohibited. No attorney general,

district attorney, county attorney, other prosecuting attorney, or other officer of

the court shall announce to any unauthorized person what the grand jury will

consider in its deliberations. If such information is disclosed, the disclosing

person may be found in contempt of court punishable by fine or imprisonment.

(3) Disclosure of Indictments Prohibited. No grand juror, witness, attorney

general, district attorney, county attorney, other prosecuting attorney, clerk,

sheriff or other officer of the court shall disclose to any unauthorized person that

an indictment is being found or returned into court against a defendant or

disclose any action or proceeding in relation to the indictment before the finding

of an indictment, within six (6) months thereafter, or before the defendant is

arrested or gives bail or recognizance.

Comment

Rule 13.5(b) preserves former Rule 7.04 of the Uniform Rules of Circuit

and County Court and Mississippi Code Section 13-5-61. Rule 13.5(b)(2)

authorizes the court to employ its contempt powers pursuant to Rule 32.3 to

punish unauthorized disclosure of grand jury deliberations. See Miss. Code

Ann. § 13-5-61. Rule 13.5(b)(3) does not preclude a prosecutor from informing

a victim on the status of a charge, pursuant to Mississippi Code Section 99-7-9.

Rule 13.6 Grand Jury Proceedings.

(a) Number of Grand Jurors Necessary to Indict; Grand Jury Not To Do

Certain Things. A grand jury has the power to indict any person upon

affirmative vote of twelve (12) or more grand jurors. The grand jury report

should not accuse any person by name of an offense, malfeasance, or

misfeasance unless an indictment is returned. If accusations are included in a

grand jury report, the comments may be expunged upon the motion of the

individual or on motion of the court.

(b) Return of Indictment. When an indictment is found, it must be endorsed

“A True Bill,” shall be signed by the foreperson, and may be signed by one of

the prosecuting attorneys.

and grand jury reports must be presented to the clerk of the circuit court by the

foreperson or the foreperson’s designee, must be endorsed with the foreperson’s

name, and must be accompanied by the foreperson’s affidavit that all

indictments were concurred in by twelve (12) or more members of the grand

jury and that at least fifteen (15) grand jurors were present during all

deliberations. Indictments and grand jury reports must be marked “filed,” and

such entries must be dated and signed by the clerk. Unless the party indicted is

in custody or on bond or recognizance, entry of the indictment shall be by

number only, and no publicity may be given to the existence of the indictment.

An arrest warrant (capias) for the person indicted shall immediately issue and

be served. After the arrest of the person indicted, and before arraignment, a

copy of the indictment shall be served on such person.

(d) Notice of Indictment. If the defendant has previously been released on

bond or recognizance, or had an initial appearance under Rule 5.2, the court or

the circuit clerk may notify the defendant, defendant’s counsel, and/or

defendant’s bondsperson of the indictment in lieu of arrest.

(e) Failure to Return an Indictment. If the grand jury fails to return an

indictment on a charge presented to it, the foreperson shall promptly so report

to the court in writing. Unless the court shall order otherwise, the defendant:

(1) if held in custody, shall be released forthwith; or

(2) if previously conditionally released, shall be relieved of any

obligation made in connection with such conditional release, along

with the surety.

Comment

Rule 13.6(a) preserves former Rule 7.03 of the Uniform Rules of Circuit

and County Court. See also Miss. Code Ann. § 99-7-11. Rule 13.6(c) largely

embodies the statutory requirements contained in Mississippi Code Section

99-7-9.

Rule 13.7 Appearance of Persons Under Investigation; Immunity and

Privilege.

(a) Appearance. A person under investigation by the grand jury may be invited

or compelled to appear before the grand jury or, upon that person’s written

request, may be permitted by the grand jury to appear. Unless immunity has

been granted to the person under investigation as provided in section (b), he/she

shall be advised:

(1) of the right to remain silent, that anything he/she says may be

used against him/her in a court of law;

(2) that he/she has the right to consult in private with an attorney

outside the grand jury room at reasonable intervals while giving

testimony;

(3) that, if he/she is unable to employ counsel because of indigency

as defined in Rule 7.3, the court will appoint an attorney to

represent him/her, and

(4) that he/she may at any time stop giving testimony and refuse to

answer further questions.

(b) Immunity and Privilege. In any investigation before a grand jury, the

prosecuting attorney may present, for court approval, a written agreement for a

person under investigation to be granted immunity from prosecution for the

offense(s) under investigation and any related or lesser-included offense(s)

thereof.

Comment

Rule 13.7(a) permits a person under investigation by the grand jury to

appear before that body by written request. See United States v. Levinson, 405

F. 2d 971, 980 (6th Cir. 1968), cert. denied, 395 U.S. 958, 89 S. Ct. 2097, 23 L.

Ed. 2d 744 (1969) (“One accused of crime may oftentimes, by himself testifying

before the grand jury, clear up the charges against him so that no indictment is

returned”). The rule is discretionary, and does not create an absolute right on

the part of a person under investigation to appear before the grand jury. Federal

courts have long held that a potential defendant has no absolute right to appear

before a grand jury. See, e.g., Duke v. United States, 90 F. 2d 840, 841 (4th Cir.

1937), cert. denied, 302 U.S. 685, 58 S. Ct. 33, 82 L. Ed. 528 (1937) (“There is

no right on the part of one whose conduct is being investigated by a grand jury

to petition the grand jury or to appear before it, which is guaranteed by the

Constitution or otherwise”). Consistent with practice in federal courts, a person

under investigation is given the right to consult with an attorney outside the

grand jury room, as a means of safeguarding the right against self-incrimination.

See, e.g., United States v. Corallo, 413 F. 2d 1306, 1329-30 (2d Cir. 1969), cert.

denied, 396 U.S. 958, 90 S. Ct. 431, 24 L. Ed. 2d 422 (1969).

Section (b) provides that the prosecuting attorney shall furnish any

immunity agreement to the court, in writing, for approval. See Miss. Code Ann.

§ 99-15-53; Wright v. McAdory, 536 So. 2d 897, 899 (Miss. 1988)

(enforceability of immunity agreement predicated upon obtaining “approval of

the circuit court”). Transactional immunity is extended to the person under

investigation in such circumstances. See Wright, 536 So. 2d at 904-05 (“we

hold that Article 3, Section 26 of the Mississippi Constitution requires a

transactional immunity grant[,]” as “[o]nly such broad immunity will make the

individual as secure as if he had remained silent”; the lone exception pertains to

perjury); Kellum v. State, 194 So. 2d 492, 493 (Miss. 1967) (“Witnesses who

voluntarily appear before grand juries and other investigative bodies have a

constitutional right not to be required to testify against themselves”); State v.

Milam, 210 Miss. 13, 48 So. 2d 594, 596 (1950) (“It is well settled in

Mississippi and elsewhere that the constitutional privilege against selfincrimination applies to proceedings before a grand jury”).

A person under investigation granted immunity may not refuse to testify

based on the privilege against self-incrimination. See Wright, 536 So. 2d at

903-04. The enforcement of this duty to testify is pursuant to the court’s

contempt powers under Rule 32.

Rule 14 Indictment

Rule 14.1 Nature and Contents.

(a) Contents Generally.

(1) Elements and Notice. The indictment upon which the defendant is to be tried

shall be a plain, concise and definite written statement of the essential facts and

elements constituting the offense charged and shall fully notify the defendant of

the nature and cause of the accusation. Formal and technical words are not

necessary in an indictment, if the offense can be substantially described without

them.

(2) Other Matters. An indictment shall also include the following:

(A) the name of the accused;

(B) the date on which the indictment was filed in court;

the authority of the State of Mississippi;

(D) the county and, in two-district counties, the judicial district in

which the indictment is brought;

(E) the date and, if applicable, the time at which the offense was

alleged to have been committed;

(F) the signature of the foreperson of the grand jury issuing it; and

(G) the words “against the peace and dignity of the state.”

(3) Surplusage. The court, upon motion, may strike from the indictment any

surplusage, including unnecessary allegations or aliases.

(b) Enhanced Punishment for Subsequent Offenses. When an indictee may

be eligible for enhanced punishment because of one (1) or more prior

convictions, the State shall either:

(1) specify such prior conviction(s) in the indictment, identifying

each such prior conviction by the name of the crime, the name of

the court in which each such conviction occurred and the cause

number(s), the date(s) of conviction, and, if relevant, the length of

time the accused was incarcerated for each such conviction; or

(2) after indictment, and at least thirty (30) days before trial or entry

of a plea of guilty, file with the court formal notice of such prior

conviction(s). The notice shall be served upon the defendant or the

defendant’s attorney and shall contain the same information

specified in subsection (1) of this rule. An untimely-filed formal

notice is permitted only when the thirty (30) day requirement is

expressly waived, in writing, by the defendant. Clerical mistakes

in such formal notice may, with leave of the court, be amended

prior to the pronouncement of sentence.

of the statute or other provision of law which the defendant is alleged to have

violated.

(d) Incorporation by Reference. A count may incorporate by reference facts

alleged in a previous count.

(e) Notice of Necessarily Included Offenses. Specification of an offense in an

indictment shall constitute notice of a charge of that offense and of all lesser

offenses included therein.

(f) Admonishment. The indictment shall neither be shown to the jury, admitted

into evidence, nor sent into the jury room.

Comment

Rule 14.1(a) is based upon former Rule 7.06 of the Uniform Rules of

Circuit and County Court. The rule now provides that, in addition to the

essential facts constituting the offense charged, the indictment must also include

the essential elements of the offense charged. This includes all facts and

elements necessary to enhance a sentence that are required to be found by a jury.

See Apprendi v. United States, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63,

147 L. Ed. 2d 435 (2000) (“Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to the jury, and proved beyond a reasonable doubt”). See,

e.g., Miss. Code Ann. § 41-29-142 (providing an enhanced penalty for drug

crimes that occur in close proximity to a school, church, public park, etc.).

Ten (10) counties contain two (2) judicial districts. Rule 14.1(a)(2)(D)

requires the indictment to state whether it is brought in the first or second

judicial district of that county.

Rule 14.1(b) builds on practice under former Rule 11.03 of the Uniform

Rules of Circuit and County Court. Prior conviction(s) utilized to enhance

punishment shall be included in either the indictment or a formal notice filed at

least thirty (30) days before trial or the entry of a guilty plea, absent written

waiver of the thirty (30) day requirement by the defendant.

Rule 14.1(e) provides that allegations of facts constituting an offense will

also encompass all lesser offenses, without the need for an explicit statement to

that effect. See Downs v. State, 962 So. 2d 1255 (Miss. 2007); Porter v. State,

616 So. 2d 899 (Miss. 1993).

Rule 14.2 Multi-Count Indictments; Joinder of Defendants.

(a) Joinder of Offenses. The indictment may charge a defendant in separate

counts with two (2) or more offenses triable in the same court if the offenses

charged – whether felonies, misdemeanors or both – are:

(1) based on the same act or transaction; or

(2) connected with or constitute parts of a common scheme or plan.

(b) Joinder of Defendants. Two (2) or more defendants may be charged in the

same indictment upon which they are to be tried when:

(1) Each defendant is charged with accountability for each offense

charged;

(2) Each defendant is charged with conspiracy and some of the

defendants are also charged with one (1) or more offenses alleged

to have been committed in furtherance of the conspiracy; or

(3) All defendants are not charged in each count, but it is alleged

that the several offenses charged were part of a common scheme or

plan.

(1) Where two (2) or more offenses are properly charged in separate counts of

a single indictment, all such charges may be tried in a single proceeding.

(2) The trier of fact shall return a separate verdict for each count of an

indictment drawn under section (a).

(d) Sentencing. When a defendant is convicted of two (2) or more offenses

charged in separate counts of an indictment, the court shall impose separate

sentences for each such conviction. Nothing contained in this Rule, however,

shall be construed to prohibit the court from exercising its authority to suspend

either the imposition or execution of any sentence(s) or to prohibit the court

from exercising its discretion to impose such sentences to run either

concurrently with or consecutively to each other or to any other sentence(s)

previously imposed upon the defendant.

Comment

Rule 14.2 largely continues prior practice under former Rules 7.07 and

7.08 of the Uniform Rules of Circuit and County Court.

Rule 14.3 Severance.

(a) Severance Generally.

(1) Severance in Death Penalty Cases. The court shall order a severance of

defendants in cases in which the State seeks the death penalty.

(2) Severance in Non-Death Penalty Cases. The court may, on motion of the

state or a defendant, grant a severance of defendants or offenses if it is deemed

appropriate to promote the fair determination of a defendant’s guilt or innocence

of each offense.

(b) Timeliness and Waiver. A defendant’s motion to sever offenses and/or

defendants must be made at the earliest opportunity. The right to move for

severance may be deemed to have been waived if a proper motion is not timely

made.

ordered after trial has commenced unless the defendant consents or a mistrial

has properly been declared as to such offense or defendant. Severance of

offense(s) during trial, upon motion of the defendant or with the defendant’s

consent, shall not bar a subsequent trial of that defendant on the offense(s)

severed.

Comment

When deciding whether severance is appropriate, “the trial court should

consider the following factors: (1) the time period between the offenses, (2)

whether the evidence proving each count would be admissible to prove each of

the other counts, and (3) whether the crimes are interwoven.” Richardson v.

State, 74 So. 3d 317, 324 (Miss. 2011) (citation omitted).

Rule 14.4 Amendment of Indictments; Defects in Indictments.

(a) Amendment of Indictments. For good cause shown, indictments may be

amended as to form but not as to the substance of the offense charged.

Amendment may be allowed only if the defendant is afforded a fair opportunity

to present a defense and is not unfairly surprised.

(b) Raising Defect in Indictment. Defects respecting the indictment shall be

raised by written motion.

Comment

“No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury. . . .” U.S. Const.

amend. V. See also Miss. Const. art. 3, § 27.

Rule 14.4(a) allows an indictment to be amended as to form only upon a

showing of good cause.

Under Rule 14.4(b), issues previously raised by demurrer or motion to

quash the indictment may be brought in a motion to dismiss. See Miss. Code

Ann. §§ 99-7-21, 99-7-23. A motion to dismiss the indictment also may be

based upon objections to the composition of the grand jury, the legal

insufficiency of, or a defect in, the indictment, or the failure of the indictment

to charge an offense.

Rule 14.5 Waiver of Indictment; Proceeding by Information. No person

shall, for any felony, be proceeded against without indictment, except by means

of an information where a defendant represented by counsel waives indictment

by sworn statement in writing.

Comment

Rule 14.5 is consistent with Article 3, Section 27 of the Mississippi

Constitution. A properly executed waiver of indictment vests the trial court with

full authority to dispose of the felony offense for which indictment was waived.

See Williams v. State, 708 So. 2d 1358, 1364 (Miss. 1998).

Rule 14.6 Dismissal.

(a) By the Prosecutor. The prosecuting attorney may, with leave of the court

having jurisdiction, dismiss an indictment or any count thereof.

(b) Unnecessary Delay. The court may dismiss an indictment or any count

thereof, if unnecessary delay occurs in bringing a defendant to trial.

to the commencement of another prosecution, unless the court orders that the

interests of justice require that the dismissal be with prejudice.

(d) Release of Defendant; Discharge of Bond. When a prosecution is

dismissed, the defendant shall be released from custody, unless the defendant

is in custody on some other charge, and any bail shall be released and held for

naught and/or sureties discharged, or money deposited in lieu thereof shall be

refunded.

Comment

Rule 14.6(a) and (b) are derived from Federal Rule of Criminal Procedure

48. Rule 14.6(a) requires the prosecuting attorney to seek permission of the

court to dismiss a prosecution, which is consistent with Mississippi Code

Section 99-15-53. Rule 14.6(b) recognizes the court retains some discretion in

determining what constitutes unnecessary delay.

Under Rule 14.6(c), the dismissal of a charge is without prejudice unless

the court so specifies. See Conwill v. State, 94 So. 3d 1173, 1176 (Miss. Ct.

App. 2011); Beckwith v. State, 615 So. 2d 1134, 1147 (Miss. 1992).

Rule 15 Arraignment and Pleas

Rule 15.1 Necessity of Arraignment.

(a) Service of Indictment. Before arraignment, a copy of the indictment shall

be served on the defendant. Arraignment, unless waived by the defendant, shall

be held within thirty (30) days after the defendant is served with the indictment.

When arraignment cannot be held within the time specified because the

defendant is in custody elsewhere, it shall be held as soon as possible.

(b) In General. An arraignment, unless waived, shall be conducted in open

court and must consist of:

(1) ensuring that the defendant has a copy of the indictment;

(2) reading the indictment to the defendant or stating to the

defendant the substance of the charge;

(3) asking the defendant to plead to the indictment;

(4) determining whether the defendant is represented by counsel

and, if not, appointing counsel, if appropriate, under Rule 7;

(5) reviewing the bond previously set, if appropriate; and

(6) setting reasonable deadlines for the filing and hearing of all

pretrial motions. Pretrial motions shall include, but are not limited

to, motions: to dismiss, to suppress evidence, to request discovery,

for continuance, for severance, for appointment of experts, for

mental examination, or for any other matters which may delay the

trial.

if the defendant is represented and attended by counsel.

(d) Waiving Appearance.

A defendant need not be present for the

arraignment if the defendant, in a written waiver signed by both the defendant

and the defendant’s attorney, has waived appearance and has affirmed that the

defendant received a copy of the indictment and that the plea is not guilty.

(e) Video Conferencing. Video conferencing may be used to arraign a

defendant pursuant to Rule 1.8.

(f) Codefendants. Defendants who are jointly charged may be arraigned

separately or jointly. If codefendants are arraigned at the same time and charged

with the same offense, the indictments need be read only once, with stated

identification of each defendant.

(g) Waiving Arraignment. Arraignment is deemed waived when the defendant

proceeds to trial or enters a guilty plea without objection.

Comment

Rule 15.1 is largely derived from former Rules 8.01 and 8.02 of the

Uniform Rules of Circuit and County Court. Section (a) requires that, whenever

possible, arraignment be held within thirty (30) days after service of the

indictment. The date of arraignment is an important point of reference for

setting the date of trial under Rule 9(a) which, like former Rule 8.01 of the

Uniform Rules of Circuit and County Court, provides that “[w]ithin sixty (60)

days after arraignment (or waiver thereof), the court shall enter an order setting

a date for trial. Trial shall be set for no later than two-hundred-seventy (270)

days after arraignment (or waiver thereof).”

Section (b)

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