MISSISSIPPI RULES OF

MISSISSIPPI RULES OF

APPELLATE PROCEDURE

1. Scope of Rules.

2. Penalties for Noncompliance with Rules; Suspension of Rules.

3. Appeals as of Right- How Taken.

4. Appeals as of Right- When Taken.

5. Interlocutory Appeal by Permission.

6. Counsel on Appeal in Criminal Cases and Proceedings In Forma Pauperis in

Criminal Cases.

7. [Security for Costs on Appeal in Civil Cases] [Omitted].

8. Stay or Injunction Pending Appeal.

9. Release in Criminal Cases.

10. Content of the Record on Appeal.

11. Completion and Transmission of the Record.

12. Transmission of Original Item From the Trial Court.

13. Docketing the Appeal and Filing the Record.

14. Findings of Facts and Calculations During the Course of an Appeal.

15. Mandamus to Require Trial Court Decision.

16. Jurisdiction of the Supreme Court and the Court of Appeals; Assignment of

Cases to the Court of Appeals.

17. Review in the Supreme Court Following Decision by the Court of Appeals.

18. [Omitted].

19. Appeals From the Public Service Commission.

20. Certified Questions From Federal Court.

21. Writs of Mandamus and Prohibition Directed to a Judge or Judges and Other

Extraordinary Writs.

22. Application for Post-Conviction Collateral Relief in Criminal Cases.

23. Call and Order of Docket.

24. [Omitted].

25. Filing and Service.

26. Computation and Extension of Time.

27. Motions.

28. Briefs.

29. Brief of an Amicus Curiae.

30. Record Excerpts.

31. Filing and Service of Briefs.

32. Form of Briefs, Record Excerpts and Other Papers.

33. Prehearing Conference.

34. Oral Argument.

35-A. Written Opinions and Entry of Judgment in the Supreme Court.

35-B. Written Opinions and Entry of Judgment in the Court of Appeals.

36. Costs.

37. Interest on Judgments.

38. Damages for Frivolous Appeal.

39. Execution of Judgment in Criminal Cases.

40. Motion for Rehearing.

41. Issuance of Mandates; Stay of Mandate.

42. Voluntary Dismissal.

43. Substitution of Parties.

44. Questions Concerning Validity of Statutes and Orders.

45. Duties of the Clerk.

46. Admission, Withdrawal, and Discipline of Attorneys.

47. Prohibition Against Practice.

48. Appellate Procedure Following Denial of Waiver of Consent to Abortion.

48-A Confidential Cases and Sealed Filings.

48B. Proceedings on Motion for Disqualification of Trial Judge.

48C. Disqualification of Justices or Judges of the Appellate Courts.

49. Title.

50. Appellate Mediation.

Appendix 1 Form 1.

Appendix 1 Form 2.

Appendix 1 Form 3.

Appendix 1 Form 4.

Appendix 1 Form 5.

Appendix 1 Form 6.

Appendix 2.

Appendix 3.

MISSISSIPPI RULES OF APPELLATE

PROCEDURE

Adopted Effective January 1, 1995

APPLICABILITY OF RULES

RULE 1. SCOPE OF RULES

These rules govern procedure in appeals to the Supreme Court of Mississippi and the

Court of Appeals of the State of Mississippi; proceedings on petitions for writs; other relief

which the Supreme Court or the Court of Appeals or a justice of the Supreme Court or judge

of the Court of Appeals is empowered to grant; and appeals from county court to circuit

court. When these rules provide for the making of a motion in the trial court, the procedure

for making such motion shall be in accordance with the practice of the trial court.

[Amended effective May 5, 2020.]

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 1 replaced Miss.Sup.Ct.R. 1, embracing

proceedings in the Court of Appeals. 644-647 So.2d XXIII-XXIV (West Miss.Cases 1994).

[Adopted August 21, 1996.]

Comment

Electronic filing in most appellate matters became mandatory on January 1, 2014.

Under Section 1.D. of the Appellate E-Filing Administrative Procedures, “all briefs, motions,

responses, and compliance documents . . . must be filed electronically.” Section 4 exempts

sealed and confidential cases, pro se litigants, and documents other than briefs, motions,

responses and compliance documents, all of which must be filed conventionally.

These rules are not to be construed to extend or limit jurisdiction of the Supreme

Court, except that Rule 5 is intended to expand the occasions upon which the Court may

exercise its power to hear interlocutory appeals. See Southern Farm Bureau Cas. Ins. v.

Holland, 469 So. 2d 55, 62-64 (Miss. 1985), (Anderson, J., concurring). The jurisdictional

statute permits interlocutory appeals "in cases particularly provided for by law." Miss. Code

Ann. § 9-3-9 (Supp. 1994). These rules are "law." See Newell v. State, 308 So. 2d 71 (Miss.

1975).

Appeals from county court to circuit court are controlled, in part, by the Mississippi

Rules of Appellate Procedure. Van Meter v. Alford, 774 So. 2d 430, 432 (Miss. 2000)

(quoting Am. Inv’rs, Inc. v. King, 733 So. 2d 830, 832 (Miss. 1999)).

Rules which provide for the making of a motion in the trial court include Rules 4(g),

extension of time to appeal; 6, determination of in forma pauperis status; 8(b), stay on appeal

to be first sought in trial court; and 10(e) correction of record on appeal. Trial court practice

is governed by the Mississippi Rules of Civil Procedure, Mississippi Rules of Evidence,

Mississippi Rules of Criminal Procedure, applicable uniform rules, and local rules where

adopted pursuant to M.R.C.P. 83 or MRCrP 1.9. The term "trial court" in these rules

includes a circuit or chancery court sitting as an appellate court. Rule 46(b) concerning the

admission of foreign attorneys governs admission in trial courts, in administrative agencies,

and in the appellate courts.

The Mississippi Rules of Appellate Procedure, effective January 1, 1995, are based

on the Mississippi Supreme Court Rules and were adopted to include procedure in the Court

of Appeals of the State of Mississippi pursuant to Miss. Code Ann. §9-4-1 et seq. (Supp.

1994).

[Comment amended effective October 25, 2018, to address electronic filing; amended

effective May 5, 2020.]

RULE 2. PENALTIES FOR NONCOMPLIANCE WITH RULES;

SUSPENSION OF RULES

(a) Dismissal of Appeal.

(1) Mandatory Dismissal. An appeal shall be dismissed if the notice of appeal was

not timely filed pursuant to Rules 4 or 5.

(2) Discretionary Dismissal. An appeal may be dismissed upon motion of a party or

on motion of the appropriate appellate court (i) when the court determines that there is an

obvious failure to prosecute an appeal; or (ii) when a party fails to comply substantially with

these rules. When either court, on its own motion or on motion of a party, determines that

dismissal may be warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give

written notice to the party in default, apprising the party of the nature of the deficiency. If

the party in default fails to correct the deficiency within fourteen (14) days after notification,

the appeal shall be dismissed by the clerk of the Supreme Court. The attorney for the party

in default has the burden to correct promptly any deficiency or to see that the default is

corrected by the appropriate official.

(b) Other Sanctions. The Supreme Court or the Court of Appeals may, after

reasonable notice given by the clerk of the Supreme Court and opportunity to show cause to

the contrary, and after hearing, if requested, impose such sanctions as may be appropriate on

any party, court reporter, trial court clerk, or attorney who fails to comply with these rules

or any order issued pursuant to these rules. Trial court judges have concurrent jurisdiction

to sanction any party, court reporter, trial court clerk, or attorney who fails to comply with

Rules 3, 10, and 11. A copy of any such sanction order shall be served on the clerk of the

Supreme Court and may be reviewed by the Supreme Court for abuse of discretion.

(c) Suspension of Rules. In the interest of expediting decision, or for other good

cause shown, the Supreme Court or the Court of Appeals may suspend the requirements or

provisions of any of these rules in a particular case on application of a party or on its own

motion and may order proceedings in accordance with its direction. The time for taking an

appeal under Rules 4 or 5 may be extended in criminal and post-conviction cases, but not in

civil cases.

[Amended effective January 1, 1999; June 29, 2017; June 19, 2026.]

Advisory Committee Historical Note

Effective January 1, 1999, Rule 2(a)(2) was amended to provide that motions for

additional time will not be entertained after notice of deficiency has issued. 717-722 So.2d

XXVII (West Miss.Cases 1998).

Effective January 1, 1999, Rule 2(b) was amended to effect a technical change. 717722 So.2d XXVII (West Miss.Cases 1998).

Effective July 1, 1997, the Comment to Rule 2 was amended to reflect the

promulgation of new Rule 4(h). 689-692 So.2d LXVI (West Miss. Cases 1997).

Effective January 1, 1995, Miss.R.App.P. 2 replaced Miss.Sup.Ct.R. 2, embracing

proceedings in the Court of Appeals. 644-647 So.2d XXIV-XXVI (West Miss.Cases 1994).

Effective March 17, 1994, Miss.Sup.Ct.R. 2(a)(2) was amended to provide that if the

party in default fails to correct the deficiency within 14 days after notification, the appeal

shall be dismissed by the clerk. 632-635 So.2d XLII-XLIII (West Miss.Cases 1994).

Comment

Perpetuating the spirit underlying the former rules of the Mississippi Supreme Court,

the present rules will be construed to facilitate the just and efficient disposition of causes

brought before the Supreme Court and the Court of Appeals. Accordingly, compliance with

even the most technical requirements of the rules is encouraged.

Under Rule 2(a)(1), if an appeal is not taken within the time specified in Rules 4 or

5, either court, on its own motion or on motion of party, shall dismiss it. Rule 4(g) states

when an extension of time may be granted by the trial court. Rule 2(c) provides for the

suspension of Rule 2(a)(1) in criminal and post-conviction cases.

Where dismissal appears warranted for any other reason, the rule provides for the

clerk to give written notice of the deficiency to counsel for the defaulting party. Specifically,

the clerk will notify counsel that the party is in default in some manner and has 14 days to

correct the noted deficiency. If the deficiency is not corrected within 14 days after

notification, the appeal shall be dismissed by the clerk. In pro se proceedings, notification

of deficiency shall be sent to the party. The rule recognizes that deficiencies may result from

actions of third parties, such as court officials. The primary responsibility, however, for

assuring correction of the deficiency remains with the defaulting party.

Rule 2(b) states the inherent disciplinary authority of either appellate court over

parties and officers of the court. Because Rules 3, 10, and 11 involve actions to be taken in

the trial court to prepare the appellate record, the rule recognizes the concurrent jurisdiction

of the trial court to impose sanctions for noncompliance with those rules. See Wilson v.

State, 461 So. 2d 728, 729 (Miss. 1984).

Rule 2(c) provides for suspension of the rules for reasons of expedition or good cause

shown. It is important to note that in civil cases, under Rule 2(c), the Court may not extend

the time for taking an appeal except as provided by Rule 4 (g) or (h). This is a departure

from prior law. See Clark v. City of Pascagoula, 473 So.2d 477 (Miss.1985); but see Roberts

v. Grafe Auto Co., Inc., 653 So.2d 250, 250-251 (Miss. 1994) (The Court held that several

verdict forms signed by the trial court were not "final judgments" triggering the 30-day time

for appeal. The Court further stated that "[e]ven assuming arguendo that the forms could be

construed to be final judgments, [appellant] was never notified of their existence, and her

right to due process would protect her from losing her right to appeal since she was not aware

of the jury verdict forms and was not notified of their existence.") Where a party has filed

an otherwise timely notice of appeal which is ineffective under Rule 4(d) or 4(e), the Court

may, however, suspend the operation of 4(d) or 4(e) to prevent manifest injustice. This is not

an extension of the "time for taking" the appeal. Also, because procedures for criminal

appeals apply to post-conviction relief proceedings, Miss. Code Ann. § 99-39-25(1), the

Supreme Court may suspend the rules and extend the time for taking an appeal in those

proceedings. Rules 2(c) and 4(g) thus supplant the procedure described in Jones v. State, 355

So.2d 89, 90 (Miss.1978).

[Amended effective July 1, 1997; June 29, 2017.]

APPEALS FROM TRIAL COURTS

RULE 3. APPEAL AS OF RIGHT - HOW TAKEN

(a) Filing the Notice of Appeal. In all cases, both civil and criminal, in which an

appeal is permitted by law as of right to the Supreme Court, there shall be one procedure for

perfecting such appeal. That procedure is prescribed in these rules. All statutes, other sets

of rules, decisions or orders in conflict with these rules shall be of no further force or effect.

An appeal permitted by law as of right from a trial court to the Supreme Court shall be taken

by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule

4. Failure of an appellant to take any step other than the timely filing of a notice of appeal

does not affect the perfection of the appeal, but is ground only for such action as the

Supreme Court deems appropriate, which may include dismissal of the appeal. Interlocutory

appeals by permission shall be taken in the manner prescribed by Rule 5.

(b) Joint or Consolidated Appeals. If two or more persons are entitled to appeal

from a judgment or order of a trial court and their interests are such as to make joinder

practicable, they may file a joint notice of appeal, or may join in appeal after filing separate

timely notices of appeal, and they may thereafter proceed on appeal as a single appellant.

Appeals may be consolidated by order of the Supreme Court (or of the Court of Appeals in

cases assigned to the Court of Appeals) upon its own motion or upon motion of a party, or

by stipulation of the parties to the several appeals.

(c) Content of the Notice of Appeal. The notice of appeal shall specify the party or

parties taking the appeal and the party or parties against whom the appeal is taken, and shall

designate as a whole or in part the judgment or order appealed from. An appeal shall not be

dismissed for informality of form or title of the notice of appeal.

(d) Service of the Notice of Appeal. The clerk of the trial court shall serve notice

of the filing of a notice of appeal by mailing a copy of the notice to counsel of record for

each party other than the appellant, or, if a party is not represented by counsel, to the last

known address of that party, and to the court reporter; and the clerk shall transmit to the clerk

of the Supreme Court forthwith a copy of the notice of appeal, together with the docket fee

as provided in Rule 3(e), and, with cost to the appellant, a certified copy of the trial court

docket as of the date of the filing of the notice of appeal, a certified copy of the opinion, if

any, and a certified copy of the judgment from which the appeal is being taken and a certified

copy of the Civil Case Filing Form in civil cases or the Notice of Criminal Disposition Form

in criminal cases. When an appeal is taken by a defendant in a criminal case, the clerk shall

also serve a copy of the notice of appeal upon the defendant, either by personal service or by

mail addressed to the defendant. The clerk shall note on each copy served the date on which

the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the

perfection of the appeal. Service shall be sufficient notwithstanding the death of a party or

the party's counsel. The clerk shall note in the docket the names of the parties to whom the

clerk mails copies with the date of mailing.

(e) Payment of Fees. Upon the filing of any separate or joint notice of appeal from

the trial court, the appellant shall pay to the clerk of the trial court the docket fee to be

received by the clerk of the trial court on behalf of the Supreme Court.

[Adopted to govern matters filed on or after January 1, 1995; amended June 21, 1996.]

Advisory Committee Historical Note

Effective June 21, 1996, Rule 3(d) was amended to require the clerk of the trial court

to transmit the Civil Case Filing Form or the Notice of Criminal Disposition Form to the

clerk of the Supreme Court. 673-678 So.2d XXXVII (West Miss. Cases 1996).

Effective January 1, 1995, Miss.R.App.P. 3 replaced Miss.Sup.Ct.R. 3, embracing

proceedings in the Court of Appeals. Rule 3(d) was further amended to require the clerk of

the trial court to transmit additional documents to the clerk of the Supreme Court. 644-647

So.2d XXVI-XXVII (West Miss.Cases 1994).

Effective July 1, 1994, the Comment to Miss.Sup.Ct.R. 3 was amended to note that

the fee to be paid under Rule 3(e) is provided by statute. 632-635 So.2d V (West Miss.Cases

1994).

[Adopted August 21, 1996; amended effective July 1, 1997; July 1, 1998.]

Comment

Rule 3 and Rule 4 combine to set forth the procedures and time frame for perfecting

an appeal. The same procedures are to be used for appeals in civil and criminal cases. Rules

10 and 11 state how the content of the record on appeal is determined and how the record is

completed and transmitted to the Court.

Subdivision 3(a) departs from prior practice and provides that the only absolutely

necessary step in the process is the timely filing of the notice of appeal. Form 1 in the

Appendix of Forms is a suggested form of a notice of appeal. If the notice of appeal is not

filed within the time specified in Rule 4, either the Supreme Court or the Court of Appeals,

on its own motion or on motion of a party, will dismiss it. Failure to take any step, other than

the timely filing of a notice of appeal, is ground for such action as either appellate court

deems appropriate, which may include dismissal of the appeal. Steps which must be taken

within seven days after filing the notice of appeal include the designation of the record under

Rule 10(b)(1) and deposit of cost estimate under Rule 11(b)(1).

The appellant is required by M.R.C.P. 5(a) to serve on all parties a copy of the notice

of appeal as submitted to the trial court clerk. Rule 3(d) requires the clerk to transmit to all

parties and to the Supreme Court clerk copies of the notice of appeal indicating the date on

which the notice of appeal was filed. Ordinarily, the appellant should supply the trial court

clerk with a sufficient number of copies of the notice of appeal to accomplish this. The clerk

may alternatively prepare the copies at the appellant's expense. The failure of the appellant

or the trial court clerk to serve copies of the notice does not affect the perfection of the

appeal.

The fee to be paid under Rule 3(e) is set by statute. See Miss. Code Ann. § 25-7-3

(1994).

RULE 4. APPEAL AS OF RIGHT - WHEN TAKEN

(a) Appeal and Cross-Appeals in Civil and Criminal Cases. Except as provided

in Rules 4(d) and 4(e), in a civil or criminal case in which an appeal or cross-appeal is

permitted by law as of right from a trial court to the Supreme Court, the notice of appeal

required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date

of entry of the judgment or order appealed from. If a notice of appeal is mistakenly filed in

the Supreme Court, the clerk of the Supreme Court shall note on it the date on which it was

received and transmit it to the clerk of the trial court and it shall be deemed filed in the trial

court on the date so noted.

(b) Notice Before Entry of Judgment. A notice of appeal filed after the

announcement of a decision or order but before the entry of the judgment or order shall be

treated as filed after such entry and on the day of the entry.

(c) Notice by Another Party. If a timely notice of appeal is filed by a party, any

other party may file a notice of appeal within 14 days after the date on which the first notice

of appeal was filed, or within the time otherwise prescribed by this rule, whichever period

last expires.

(d) Post-trial Motions in Civil Cases. If any party files a timely motion of a type

specified immediately below the time for appeal for all parties runs from the entry of the

order disposing of the last such motion outstanding. This provision applies to a timely

motion under the Mississippi Rules of Civil Procedure (1) for judgment under Rule 50(b);

(2) under Rule 52(b) to amend or make additional findings of facts, whether or not granting

the motion would alter the judgment; (3) under Rule 59 to alter or amend the judgment; (4)

under Rule 59 for a new trial; or (5) for relief under Rule 60 if the motion is filed no later

than 10 days after the entry of judgment. A notice of appeal filed after announcement or

entry of the judgment but before disposition of any of the above motions is ineffective to

appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the

entry of the order disposing of the last such motion outstanding. Notwithstanding the

provisions of Appellate Rule 3(c), a valid notice of appeal is effective to appeal from an

order disposing of any of the above motions.

(e) Post-trial Motions in Criminal Cases. If a defendant makes a timely motion (1)

for judgment of acquittal notwithstanding the verdict of the jury, or (2) for a new trial under

MRCrP 25.1, the time for appeal for all parties shall run from the entry of the order denying

such motion. Notwithstanding anything in this rule to the contrary, in criminal cases the 30

day period shall run from the date of the denial of any motion contemplated by this

subparagraph, or from the date of imposition of sentence, whichever occurs later. A notice

of appeal filed after the court announces a decision, sentence, or order but before it disposes

of any of the above motions, is ineffective until the date of the entry of the order disposing

of the last such motion outstanding, or until the date of the entry of the judgment of

conviction, whichever is later. Notwithstanding the provisions of Appellate Rule 3(c), a

valid notice of appeal is effective to appeal from an order disposing of any of the above

motions.

(f) Parties Under Disability. In the case of parties under a disability of infancy or

unsoundness of mind, the various periods of time for which provision is made in this rule and

within which periods of time action must be taken shall not begin to run until the date on

which the disability of any such party shall have been removed. However, in cases where

the appellant infant or person of unsound mind was a plaintiff or complainant, and in cases

where such a person was a party defendant and there had been appointed for him or her a

guardian ad litem, appeals to the Supreme Court shall be taken in the manner prescribed in

this rule within two years of the entry of the judgment or order which would cause to

commence the running of the 30 day time period for all other appellants as provided in this

rule.

(g) Extensions. The trial court may extend the time for filing a notice of appeal upon

motion filed not later than 30 days after the expiration of the time otherwise prescribed by

this rule. Any such motion which is filed before expiration of the prescribed time may be

granted for good cause and may be ex parte unless the court otherwise requires. Notice of

any such motion which is filed after expiration of the prescribed time shall be given to other

parties, and the motion shall be granted only upon a showing of excusable neglect. No such

extension shall exceed 30 days past such prescribed time or 10 days from the date of entry

of the order granting the motion, whichever occurs later.

(h) Reopening Time for Appeal. The trial court, if it finds (a) that a party entitled

to notice of the entry of a judgment or order did not receive such notice from the clerk or any

party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion

filed within 180 days of entry of the judgment or order or within 7 days of receipt of such

notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date

of entry of the order reopening the time for appeal.

(i) Taxpayer Appeals. If the board of supervisors of any county, or the mayor and

board of aldermen of any city, town or village, or any other board, commission or other

officer of any county, or municipality, or district, sued in an official capacity, fails to file a

notice of appeal under Rule 4(a) within 20 days after the date of entry of an adverse judgment

or order, or within 7 days after filing of a notice by another party pursuant to Rule 4(c), any

taxpayer of the county, municipality or district shall have the right at the taxpayer's own

expense to employ private counsel to prosecute the appeal in compliance with these rules.

If the governmental entity files a notice of appeal, the appeal shall not be dismissed if any

such taxpayer objects and prosecutes the appeal at the taxpayer's own expense.

[Amended effective July 1, 1997; July 1, 1998.]

Advisory Committee Historical Note

Effective April 29, 1998, Rules 4(d) and (e) were amended to provide that a notice of

appeal filed before disposition of specified post trial motions becomes effective on

disposition thereof and is effective to appeal said disposition. In addition, the list of specified

motions was enlarged to include M.R.C.P. 60 motions filed within 10 days. 706-708 So.2d

XLIV (West Miss.Cases 1998).

Effective July 1, 1997, a new Rule 4(h) was added to provide for reopening of time

for appeal in the event that a notice of entry of judgment is not received. The former Rule

4(h) was redesignated 4(i). 689-692 So. 2d LXII (West Miss. Cases 1997).

Effective January 1, 1995, Miss.R.App.P. 4 replaced Miss.Sup.Ct.R. 4, embracing

proceedings in the Court of Appeals. 644-647 So.2d XXVII-XXX (West Miss.Cases 1994).

Effective July 1, 1994, the Comment to Miss.Sup.Ct.R. 4 was amended to delete

references to repealed statutes and material concerning the transition from statutory

procedures to Rule practice. 632-635 So. 2d V (West Miss.Cases 1994).

Effective July 1, 1994, the Comment to Miss.Sup.Ct.R. 4 was amended to provide that

the date of the entry of the judgment is the date the judgment is entered in the general docket

of the clerk of court, and to delete an outdated case citation. 632-635 So.2d XLIV-XLV

(West Miss.Cases 1994).

[Adopted August 21, 1996; amended effective July 1, 1997; July 1, 1998.]

Comment

Rule 4 applies to appeals and cross-appeals in all civil and criminal cases. The date

of entry of judgment is the date the judgment is entered in the general docket of the clerk of

the court. M.R.C.P. 58.

The notice of appeal requirement applies to all forms of appeal, including

cross-appeals. Rule 4(c) requires that a notice of appeal for a cross-appeal be filed within

14 days after the date on which the first notice of appeal was filed, unless a longer period is

prescribed by another provision of Rule 4.

Previously, Rule 4(d) specified certain post-trial motions that had to await disposition

before a valid notice of appeal could be filed. Any notice of appeal filed before such

disposition had no force or effect. Rule 4(e) had the same provisions for specified post-trial

motions in criminal cases. Those provisions of Rules 4(d) and 4(e), however, created a trap

for an unsuspecting litigant who filed a notice of appeal before a post trial motion, or while

a post trial motion was pending. Because the Rules required a party to file a new notice of

appeal after the motion's disposition, unless a new notice was filed the Supreme Court lacked

jurisdiction to hear the appeal. See In re Kimbrough, 680 So.2d 799 (Miss.1996). Many

litigants, especially pro se litigants, failed to file the second notice of appeal, and the Court

expressed dissatisfaction with the rule. See id. (Banks, J., dissenting) and (McRae, J.,

dissenting).

Rules 4(d) and 4(e) now provide that a notice of appeal filed before the disposition

of a specified post trial motion will become effective upon disposition of the motion. A

notice filed before the filing of one of the specified motions or after the filing of a motion

but before its disposition is, in effect, suspended until the motions disposition, whereupon

the previously filed notice effectively places jurisdiction in the Supreme Court. Still,

ordinarily, the filing of a notice of appeal should come after the disposition of these motions.

An appeal should not be noticed and docketed in the Supreme Court while it is still possible

that the appealing party may obtain relief in the trial court.

Because a notice of appeal will ripen into an effective appeal upon disposition of a

post trial motion, in some instances there will be an appeal from a judgment that has been

altered substantially because the motion was granted in whole or in part. Many such appeals

will be dismissed for want of prosecution when the appellant fails to meet the briefing

schedule. But, the appellee may also move to strike the appeal. When responding to such

a motion, the appellant would have an opportunity to state that, even though some relief

sought in a post trial motion was granted, the appellant still plans to pursue the appeal.

Because the appellant's response would provide the appellee with sufficient notice of the

appellant's intentions, an additional notice of appeal is unnecessary.

While Rule 4 is patterned after its Federal counterpart, Rule 4(d) departs from Federal

practice by providing that a valid notice of appeal is effective to appeal from an order

disposing of a post trial tolling motion. Under FED. R. APP. P. 4(a)(4), if a party wishes to

appeal from the disposition of a post trial tolling motion, the party must amend the notice to

so indicate. However, requiring amendment of the notice of appeal would create a new,

albeit less severe, trap for unsuspecting litigants, without serving a substantial purpose.

Rule 4(d) is also amended to include, among motions that extend the time for filing

a notice of appeal, a Rule 60 motion that is filed within 10 days after entry of judgment. This

eliminates the difficulty of determining whether a post trial motion made within 10 days after

entry of a judgment is a Rule 59 motion, which tolls the time for filing an appeal, or a Rule

60 motion, which historically has not tolled the time. See Michael v. Michael, 650 So.2d 469

(Miss. 1995).

Rule 4(f) continues to recognize an extension for parties under a legal disability. See

Parks v. Knight, 491 So. 2d 217 (Miss. 1986).

Rule 4(g) is based on Fed. R. App. P. 4(a)(5). A motion filed before expiration of the

30 day period may be ex parte and may be granted for any "good cause." This standard is

identical to that found in Rule 26. The extension may not go beyond 30 days after the time

prescribed in Rule 4(a).

If the motion is not filed until the extension period has begun to run, the burden rests

on the appellant to show the failure to file a timely notice was a result of "excusable neglect."

Mere failure to learn of entry of the judgment is generally not a ground for showing

excusable neglect. Counsel in a case taken under advisement has a duty to check the docket

regularly. But see City of Gulfport v. Saxon, 437 So. 2d 1215, 1217 (Miss. 1983) (when trial

court sits as an appellate court, parties may reasonably expect notification from the court or

clerk when a ruling is made). Filing a notice is a simple act, and a party must do all it could

reasonably be expected to do to perfect the appeal in a timely fashion. Counsel's failure to

read published rules of court and counsel's reliance on mistaken legal advice from a trial

court clerk will not show excusable neglect. Campbell v. Bowlin, 724 F. 2d 484, 488 (5th

Cir. 1984); Reed v. Kroger Co., 478 F. 2d 1268 (T.E.C.A. 1973). Excusable neglect will not

be shown by counsel's busy trial schedule. Pinero Schroeder v. Fed. Nat'l Mtg. Ass'n, 574

F. 2d 1117 (1st Cir. 1978).

On the other hand, a party misled by actions of the court can establish excusable

neglect. See Chipser v. Kohlmeyer & Co., 600 F. 2d 1061, 1063 (5th Cir. 1979); In re

Morrow, 502 F. 2d 520, 522 (5th Cir. 1974) (dictum). Excusable neglect may be shown

where a timely mailed notice was late because of unanticipated and uncontrollable delays in

the mail. Fallen v. United States, 378 U.S. 139, 84 S. Ct. 1689, 12 L. Ed. 2d 760 (1964).

See generally, 20 W. Moore, Federal Practice§ 304-13.

An excusable neglect motion must be filed within the 30 day extension period. The

extension will be limited to that period, or to a period ending 10 days after the entry of an

order granting the motion, whichever occurs later.

In criminal cases, the Court may suspend Rule 4 to permit out of time appeals.

Post-conviction relief proceedings are governed by the rules controlling criminal appeals.

Miss. Code Ann. § 99-39-25(1). No such suspension, however, is permitted in a civil case.

See Rules 2(c); 26(b).

Rule 4(h) is patterned after FED. R. APP. P. 4(a)(6), which was added to the Federal

Rules in 1991. Rule 4(h) provides a limited opportunity for relief, independent of and in

addition to that available under Rule 4(g), in circumstances where the notice of entry of a

judgment or order, required to be mailed by the clerk of the trial court pursuant to Rule 77(d)

of the Mississippi Rules of Civil Procedure, is either not received by a party or is received

so late as to impair the opportunity to file a timely notice of appeal. Rule 4(h) allows a trial

court to reopen for a brief period the time for appeal upon a finding that notice of entry of

a judgment or order was not received from the clerk or a party within 21 days of its entry and

that no party would be prejudiced. While the party seeking relief under Rule 4(h) bears the

burden of persuading the trial court of lack of timely notice, a specific factual denial of

receipt of notice rebuts and terminates the presumption that mailed notice was received. See

Nunley v. City of Los Angeles, 52 F.3d 792, 798 (9th Cir. 1995). "Prejudice" means some

adverse consequence other than the cost of having to oppose the appeal and encounter the

risk of reversal, consequences that are present in every appeal. Prejudice might arise, for

example, if the appellee had taken some action in reliance on the expiration of the normal

time period for filing a notice of appeal.

While the trial court retains some discretion to refuse to reopen the time for appeal

even when the requirements of Rule (4)(h) are met, the concept of excusable neglect

embodied in Rule 4(g) simply has no place in the application of Rule 4(h). See Avolio v.

Suffolk, 29 F.3d 50, 53 (2d Cir. 1994). “To hold otherwise would negate the addition of Rule

4[h], which provides an avenue of relief separate and apart from Rule 4[g].” Nunley v. City

of Los Angeles, 52 F.3d 792, 797 (9th Cir. 1995). Thus, “where non-receipt has been proven

and no other party would be prejudiced, the denial of relief cannot rest on [a lack of

excusable neglect, such as] a party's failure to learn independently of the entry of judgment

during the thirty-day period for filing notices of appeal.” Id. at 798.

Reopening may be ordered only upon a motion filed within 180 days of the entry of

a judgment or order or within 7 days of receipt of notice of such entry, whichever is earlier.

This provision establishes an outer time limit of 180 days for a party who fails to receive

timely notice of entry of a judgment or order to seek additional time to appeal and enables

any winning party to shorten the 180-day period by sending (and establishing proof of receipt

of) its own notice of entry of a judgment or order, as authorized by Miss. R. Civ. P. 77(d).

Winning parties are encouraged to send their own notice in order to lessen the chance that

a judge will accept a claim of non-receipt in the face of evidence that notices were sent by

both the clerk and the winning party. Receipt of a winning party's notice will shorten only

the time for reopening the time for appeal under this subdivision, leaving the normal time

periods for appeal unaffected.

If the motion is granted, the trial court may reopen the time for filing a notice of

appeal only for a period of 14 days from the date of entry of the order reopening the time for

appeal.

The taxpayer who prosecutes an appeal under Rule 4(i) must comply with these rules

and file a timely notice of appeal under 4(a), or 4(c), if applicable.

[Amended effective July 1, 1997; July 1, 1998; June 29, 2017.]

RULE 5. INTERLOCUTORY APPEAL BY PERMISSION

(a) Petition for Permission to Appeal. An appeal from an interlocutory order may

be sought if a substantial basis exists for a difference of opinion on a question of law as to

which appellate resolution may:

(1) Materially advance the termination of the litigation and avoid exceptional expense

to the parties; or

(2) Protect a party from substantial and irreparable injury; or

(3) Resolve an issue of general importance in the administration of justice.

Appeal from such an order may be sought by filing a petition for permission to appeal

with the clerk of the Supreme Court within 21 days after the entry of such order in the trial

court with proof of service on the trial judge and all other parties to the action in the trial

court.

(b) Content of Petition; Answer. The petition shall contain a statement of the facts

necessary to an understanding of the question of law determined by the order of the trial

court; a statement of the question itself; a statement of the current status of the case; and a

statement as to why the petition for interlocutory appeal is timely. The petition shall further

identify all other cases or petitions for interlocutory appeal pending before the appellate court

and known to the petitioner which are related to the matter for which interlocutory review

is sought. The petition shall include or have annexed a copy of the order from which appeal

is sought and of any related findings of fact, conclusions of law or opinion. Within 14 days

after service of the petition, the trial judge may file a statement informing the appellate court

of any reasons why that judge believes that the petition should or should not be granted, and

any adverse party may file an answer in opposition with the clerk of the Supreme Court, with

proof of service on the trial judge and all other parties to the action in the trial court. The

petition with any statement by the trial judge and answers of all parties responding shall be

submitted without oral argument unless otherwise ordered.

(c) Form of Papers; Number of Copies. Four (4) copies of the petition and answer,

if any, shall be filed with the original, but the Court may require that additional copies be

furnished. The provisions of Rule 27 concerning motions shall govern the filing and

consideration of the petition and answer, except that no petition or answer, including its

supporting brief, shall exceed 15 pages in length.

(d) Grant of Permission; Prepayment of Costs; Filing of Record. If permission

to appeal is granted by the Supreme Court, the appellant shall pay the docket fee as required

by Rule 3(e) within 14 days after entry of the order granting permission to appeal, and the

record on appeal shall be transmitted and filed and the appeal docketed in accordance with

Rules 10, 11, and 13. The time fixed by those rules for transmitting the record and docketing

the appeal shall run from the date of entry of the order granting permission to appeal. A

notice of appeal need not be filed.

(e) Expedited Proceedings. The Court may in its discretion expedite the appeal and

give it preference over ordinary civil cases. If the Court determines that the issues presented

can be fairly decided on the petition, response and exhibits presented, the Court may decide

those issues simultaneously with the granting of the petition, without awaiting preparation

of a record or further briefing.

(f) Effect on Trial Court Proceedings. The petition for appeal shall not stay

proceedings in the trial court unless the trial judge or the Supreme Court shall so order.

[Amended effective July 29, 2004 to add paragraph (e) regarding expedited proceedings

when the petition is granted. Effective December 9, 2004, as to trial court orders entered

from and after March 1, 2005, paragraph (a) and (b) are amended to eliminate provision for

seeking certification of the issue by the trial judge and provide the trial judge an opportunity

to file a statement regarding the issue.]

Advisory Committee Historical Note

Effective April 15, 2004, the Comment was amended to note that Rule 5 does not

alter the applicability of Miss. Code Ann. § 99-35-103 (Rev. 2000) regarding appeals by the

government in criminal cases.

Effective January 1, 1995, Miss.R.App.P. 5 replaced Miss.Sup.Ct.R. 5, 644-647 So.2d

XXX-XXXIII (West Miss.Cases 1994).

Effective July 1, 1994, the Comment to Miss.Sup.Ct.R. 5 was amended to delete a

reference to a repealed statute. 632-635 So.2d LI (West Miss.Cases 1994).

Comment

This rule is a composite of Fed. R. App. P. 5, 28 U.S.C. § 1292(b) and American Bar

Ass'n. Standards Relating to Appellate Courts § 3.12 (1977). See also, Ala. R. App. P. 5;

Comment, 88 Harv. L. Rev. 607 (1975). It provides for interlocutory appeal from Circuit,

Chancery and County Courts. See Sonford Products Corp. v. Freels, 495 So. 2d 468, 471

(Miss. 1986); Kilgore v. Barnes, 490 So. 2d 895, 896 (Miss. 1986); Southern Farm Bureau

Cas. Ins. v. Holland, 469 So. 2d 55, 62-64 (Miss. 1985) (Anderson, J., concurring). It applies

to both civil and criminal cases. Cf. State v. Caldwell, 492 So. 2d 575, 576-577 (Miss. 1986)

(remedial writ granted where constitutional rights violated prior to criminal trial).

Prior to March 1, 2005, Rule 5(a) required the petitioner to seek certification for an

interlocutory appeal first from the trial court. Denial of certification did not limit the right

of the petitioner to seek interlocutory review, but submitting the matter to the trial judge was

a prerequisite to proceeding in the Supreme Court. This requirement has been eliminated by

the amendment as to trial court orders entered from and after March 1, 2005. Under the rule

prior to the amendment, the 14 day time limit ran from the time of entry of the judge’s order

ruling on a motion to amend the order which was the subject of the petition. With the

elimination of the requirement of trial court certification or denial of certification as to orders

entered after March 1, 2005, the petition must be filed within 21 days following the entry

of the order which the petitioner submits for interlocutory review. While an interlocutory

appeal may be sought at any time, the timeliness of the petition decreases as trial approaches.

The practice of seeking belated reconsideration of the trial court’s ruling for the purpose of

renewing the time allowed for seeking interlocutory review is condemned. The rule is unlike

federal practice in which both courts must agree before an interlocutory appeal will be heard

under 28 U.S.C. § 1292(b).

The March 1, 2005 amendment recognizes that the trial court’s views as to whether

interlocutory review should be granted are often helpful. The amendment requires that the

petition be served on the trial judge and invites that judge’s statement as to the reasons why

the petition should or should not be granted.

The standards for granting interlocutory appeal are based on existing law. Appeal will

not be permitted except to resolve a question of law, and this includes the application of law

to fact. There must be a substantial basis for a difference of opinion with the trial court. See

Fed. R. App. P. 5(b); 28 U.S.C. § 1292(b). A question of law need not control the entire

case, but must be sufficiently important to the litigation to merit interlocutory appeal. In this

latter respect, the rule departs from the standards set forth in § 1292(b) and adopts the

language followed by other state courts. See, e.g., Ill. Sup. Ct. R. 308. Rule 5 does not alter

the applicability of Miss. Code Ann. § 99-35-103 (Rev. 2000) regarding appeals by the

government in criminal cases. State v. Hicks, 806 So. 2d 261 (Miss. 2002).

Rule 5(a)(1) begins with the federal requirement that interlocutory review will be

permitted when such review will "materially advance the termination of the litigation." See

Fed. R. App. P. 5(b); 28 U.S.C. § 1292(b). It adds the requirement of the now-repealed

Miss. Code Ann. § 11-51-7 (Supp. 1986) that the appellant must show that the appeal may

avoid expense as well as delay.

Rule 5(a)(2) permits interlocutory appeal where review will protect a party from

substantial and irreparable injury. This category would permit interlocutory review of rulings

on injunctions and receivership matters allowed as of right under 28 U.S.C. § 1292(a)(1).

It would continue present state practice of interlocutory review of chancery orders requiring

money to be paid or the possession of property changed, but only if compliance with such an

order threatened the opposite party with irreparable injury.

Rule 5(a)(3) provides the Court with flexible authority to grant interlocutory review

in situations in which the pertinent interest is the administration of justice. The interest "is

that of the proper administration of justice generally--for example, when an order involves

a question of procedure that would likely become moot by the time final judgment was

entered but should be authoritatively resolved for the purposes of future guidance of courts

below." American Bar Ass'n, Standards Relating to Appellate Courts § 3.12, at 29. See also

Wisc. Stat. Ann. § 809.50(c) (1986). By permitting review to resolve conflicts among trial

courts in such cases, the rule promotes uniformity and fairness to litigants.

Rule 5(b) provides only for the petition and the answer. A reply to the answer is not

permitted and will not be considered.

Rule 5(c) contemplates that the petition and answer will be treated as motions and so

must be supported by a brief. In order to expedite judicial consideration, however, the total

length of a petition and brief are limited to 15 pages, and a similar restriction applies to the

answer and its supporting brief. This limitation does not include pages in exhibits required

to be annexed to the petition.

Rule 5 review is separate from the interlocutory review available by certification

under M.R.C.P. 54(b) when a final judgment is entered as to fewer than all parties or claims,

and that available under Rule 9 governing release in criminal cases.

Rule 5(e) was added by amendment effective July29, 2004 in recognition of the need

for expedited disposition of interlocutory appeals. On occasions when the Court is presented

in the petition with a pure question of law or otherwise has before it sufficient information

to do so, the Court may in its discretion address and dispose of the issue presented

simultaneously with the grant of permission to file the interlocutory appeal and without

further record preparation or briefing.

[Comment amended effective April 15, 2004; amended effective July 29, 2004; amended

effective December 9, 2004; Comment amended effective January 11, 2007; Comment

amended effective July 1, 2008.]

RULE 6. COUNSEL ON APPEAL IN CRIMINAL CASES

AND PROCEEDINGS IN FORMA PAUPERIS

IN CRIMINAL CASES

(a) Leave to Proceed In Forma Pauperis From the Trial Court to the Supreme

Court in Criminal Cases.

(1) Post-trial Motion in Trial Court. A defendant in a criminal case in a trial court

who desires to proceed on appeal in forma pauperis shall file in the trial court a motion for

leave so to proceed, together with an affidavit showing the defendant's inability to pay fees

and costs. If the motion is granted, the defendant may so proceed without further application

to the Supreme Court and without prepayment of fees or costs in either court. If the motion

is denied, the trial court shall state in writing the reasons for the denial.

(2) When In Forma Pauperis Status Previously Granted by Trial Court.

Notwithstanding the provisions of Rule 6(a)(1), a party who has been permitted to proceed

in forma pauperis in the trial court may proceed on appeal in forma pauperis without further

authorization unless, before or after the notice of appeal is filed, the trial court shall certify

that the party is no longer indigent and is not otherwise entitled to proceed in forma pauperis.

The court shall state in writing the reasons for such certification or finding. Where an appeal

is taken to the Supreme Court in forma pauperis, the certification of compliance required by

Rule 11(b)(1) shall indicate that the appeal is taken in forma pauperis.

(3) Motion in the Supreme Court. If a motion for leave to proceed on appeal in forma

pauperis is denied by the trial court, the trial court clerk shall forthwith serve notice of such

action. A motion for leave so to proceed may be filed in the Supreme Court within 30 days

after service of notice of the action of the trial court. The motion shall be accompanied by

a copy of the affidavit filed in the trial court, or by the affidavit prescribed by Rule 6(a)(1)

if no affidavit has been filed in the trial court, and by a copy of the statement of reasons given

by the trial court for its action.

(b) Appointment of Counsel on Appeal in Criminal Cases. Appointed trial counsel

shall continue as defendant's counsel on appeal unless relieved by order of the trial court, or,

if the appeal has been perfected, by order of the Supreme Court or the Court of Appeals. Any

motion for such relief filed with the Supreme Court shall be accompanied by a certified copy

of a trial court order appointing substitute counsel pending action by the Supreme Court or

the Court of Appeals.

Appointed trial counsel may file a motion to substitute the Indigent Appeals Division

of the Office of the State Public Defender, in accordance with Section 99-40-1 of the

Mississippi Code. Trial counsel shall remain as the defendant’s counsel until relieved by

order of the Supreme Court and shall have a continuing duty to cooperate with appellate

counsel after relieved by order of the Supreme Court.

(c) Waiver of Counsel in Criminal Appeal.

(1) When Appellant Has No Counsel. Where an appeal is taken to the Supreme Court

and the appellant is not represented by an attorney, and the existing record does not disclose

whether appellant intelligently and competently waived the right to counsel in the State

appellate courts, the Supreme Court or the Court of Appeals shall request the trial court to

determine:

i. whether the appellant is indigent and unable to employ counsel;

ii. if indigent, whether the appellant desires counsel to be appointed; and

iii. if the appellant does not desire counsel, whether the appellant intelligently and

competently waives the appointment of counsel on appeal.

A transcript shall be made by the court reporter of the hearing on these issues before the trial

court, and such transcript and the order of the trial court shall be certified to the Supreme

Court or the Court of Appeals and shall be made a part of the record on appeal.

If the trial judge or the appellate court determines that appellant is indigent and is

entitled to the appointment of counsel on appeal, and that the appellant has not intelligently

and competently waived the same, the trial court shall, except for good cause shown, appoint

the Indigent Appeals Division of the Office of the State Public Defender to represent the

appellant on appeal in accordance with the provisions of Section 99-40-1 of the Mississippi

Code.

If the trial judge or the appellate court determines that appellant is not indigent and

that the appellant has not intelligently and competently waived the right to counsel on appeal,

the appellate court shall stay the appeal for thirty (30) days so that appellant may hire

counsel.

(2) When Appellant Moves to Dismiss Counsel and Proceed Pro Se on Appeal. When

a criminal appellant moves to dismiss counsel on appeal and proceed pro se, the appellant

shall serve a copy of the motion upon current counsel. The appellate court shall request the

trial court to determine:

i. whether the appellant is indigent and unable to employ counsel;

ii. if indigent, whether the appellant desires counsel to be appointed; and

iii. if the appellant does not desire counsel, whether the appellant intelligently and

competently waives the right to counsel on appeal.

A transcript shall be made by the court reporter of the hearing on these issues before the trial

court, and such transcript and the order of the trial court shall be certified to the Supreme

Court or the Court of Appeals and shall be made a part of the record on appeal.

If it is determined that appellant has not intelligently and competently waived the right

to counsel on appeal, then the motion to dismiss counsel shall be denied. If it is determined

that appellant has intelligently and competently waived the right to counsel on appeal, then

the motion to dismiss counsel shall be granted.

[Amended August 9, 2007, to provide for appointment of the Mississippi Office of Indigent

Appeals; Adopted to govern matters filed on or after January 1, 1995; amended effective

August 2, 2012 to include procedural safeguards regarding the waiver of counsel in a

criminal appeal.]

Advisory Committee Historical Note

Effective January 1, 1995, M.R.A.P. 6 replaced Miss. Sup. Ct. R. 6, embracing

proceedings in the Court of Appeals. 644-647 So. 2d XXXIII-XXXIV (West Miss. Cases

1994).

[Adopted August 21, 1996.]

Comment

Rule 6(a) and (b) provide for appeals in forma pauperis in criminal appeals. The rule

reflects the salient features of Fed. R. App. P. 24 and Ala. R. App. P. 24. See Form 4 for a

suggested affidavit to accompany a motion for application to proceed in forma pauperis.

Rule 6(b) provides that appointed counsel in a criminal case may not be relieved of the

responsibility for an appeal absent leave of Court. Allison v. State, 436 So. 2d 792 (Miss.

1983).

An accused entitled to counsel at trial is also entitled to counsel in an appeal as of

right to the Supreme Court. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821

(1985); Neal v. State, 422 So. 2d 747, 748 (Miss. 1982). Under federal law, a defendant is

entitled to counsel if a sentence of imprisonment is imposed. Scott v. Illinois, 440 U.S. 367,

99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979). See also Miss. Const. of 1890, art. 3, § 26.

The county prepays costs when an indigent criminal defendant appeals in forma

pauperis. Miss. Code Ann. § 99-35-105 (Rev. 2000). The Clerk of the Supreme Court

charges no fees or costs when a defendant incarcerated at the Mississippi State Penitentiary

appeals on pauper's oath. Miss. Code Ann. § 25-7-3 (Rev. 2006).

Rule 6(b) provides for the appointment of the Indigent Appeals Division of the Office

of the State Public Defender in accordance with Section 99-40-1 of the Mississippi Code.

An indigent appellant shall be represented by the Indigent Appeals Division of the Office of

the State Public Defender absent good cause shown.

Rule 6(c) is regarding the waiver of counsel on appeal in criminal cases. The

subsection applies regardless of appellant’s ability to pay for counsel. The waiver of counsel

must be knowingly and intelligently made. The hearing in the trial court mirrors the hearing

provided for in MRCrP 7.1(c). If appellant’s motion to dismiss counsel is denied, appellant

may file a pro se supplemental brief pursuant to Rule 28(b).

[Amended effective August 2, 2012.]

RULE 7. [SECURITY FOR COSTS ON APPEAL IN CIVIL CASES]

[OMITTED]

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 7 replaced Miss.Sup.Ct.R. 7, 644-647 So.2d

XXXIV (West Miss.Cases 1994).

Effective July 1, 1994, the Comment to Miss.Sup.Ct.R. 7 was amended to delete

material concerning the transition from statutory procedures to Rule practice. 632-635 So.2d

LI (West Miss.Cases 1994).

[Adopted August 21, 1996.]

Comment

Rule 7 is omitted from these rules because provisions for costs on appeal are found

in Rule 11. This is consistent with prior statutory practice.

RULE 8. STAY OR INJUNCTION PENDING APPEAL

(a) Stay by Clerk's Approval of Supersedeas Bond. The appellant shall be entitled

to a stay of execution of a money judgment pending appeal if the appellant gives a

supersedeas bond, payable to the opposite party, with two or more sufficient resident sureties,

or one or more guaranty or surety companies authorized to do business in this state, in a

penalty of 125 percent of the amount of the judgment appealed from, conditioned that the

appellant will satisfy the judgment complained of and also such final judgment as may be

made in the case. The clerk of the trial court shall approve any such bond and the approval

of the supersedeas bond by the clerk shall constitute a stay of the judgment. In the event the

clerk declines to approve the bond, or the clerk's approval is contested, or the appellant seeks

a stay on any basis other than compliance with this subdivision, the requirements of Rule 8(b)

apply.

(b) Other Stays Must Ordinarily Be Sought in the First Instance From the Trial

Court.

(1) Application for a stay of the judgment or the order of a trial court pending appeal

or for approval or disapproval of a contested supersedeas bond or for an order suspending,

modifying, restoring, or granting an injunction during the pendency of an appeal must

ordinarily be made in the first instance to the trial court. The court shall require the giving

of security by the appellant in such form and in such sum as the court deems proper, and for

good cause shown may set a supersedeas bond in an amount less than the 125 percent

required in cases under Rule 8(a).

(2) However, a bond or equivalent security required on any money judgment entered

in whole or in part on account of punitive damages shall, as to the punitive damages portion

of the judgment only, be the lower of:

(a) 125 percent of the total amount of punitive damages, or

(b) ten percent of the net worth of the defendant seeking appeal as

determined by applying generally accepted accounting principles to the

defendant's financial status as of December 31, of the year prior to the entry

of the judgment for punitive damages.

(c) Absent unusual circumstances, the total amount of the required bond or

equivalent security for any case as to punitive damages shall not exceed $100,000,000.

(3) To qualify for reduction of bond or equivalent security under subpart (b)(2)(b),

there must be a good and sufficient showing that the imposition of a supersedeas bond of

125% of the full judgment appealed from would place that appellant in a condition of

insolvency or would otherwise substantially threaten its future financial viability.

(4) When the appellant is allowed the benefit of a reduction in bond or equivalent

security under subpart (b)(2)(b) or (c), the court may require submission of such reports or

evidence to the court and to opposing parties as will allow them to be properly informed of

the financial condition of the appellant during the period of supersedeas. If at any time after

notice and hearing, the court finds that an appellant who has posted a bond or equivalent

security for less than 125 percent of the full amount of the judgment has taken actions that

affect the financial ability of the appellant to respond to the judgment, or has taken other

actions with the intent to avoid the judgment, the court shall increase the bond or equivalent

security to the full 125 percent of the judgment. If the appellant does not post the additional

bond required by the court, the stay shall be revoked.

(5) If a hearing is necessary for issues arising under subpart (b), the judgment shall

be stayed during such hearing and for ten days following the trial court's ruling. The ruling

of the trial court on motions filed under this subpart (b) shall be reviewable by the Supreme

Court or the Court of Appeals.

(c) Motion to Stay or Vacate Stay in Supreme Court. A motion for such relief

may be made to the Supreme Court (or to the Court of Appeals in cases assigned by the

Supreme Court to the Court of Appeals) but the motion shall show that the application to the

trial court for relief sought is not practicable, or that the trial court has denied an application

or has failed to afford the relief which the applicant has requested, with the reasons given by

the trial court for its action. The motion shall also show the reasons for the relief requested

and the facts relied upon and, if the facts are subject to dispute, the motion shall be supported

by affidavits or other sworn statements. The applicant shall file an original and four (4)

copies of the motion for stay and, if the motion is opposed, shall attach legible copies of the

documents listed below. If the applicant asserts that time does not permit the filing of a

written motion, applicant shall deliver to the clerk five (5) legible copies of each of the listed

documents as soon as possible. If any listed document cannot be attached or delivered, a

statement of the reason for the omission shall be substituted.

The documents required are:

(1) the application to the trial court for a stay;

(2) each brief or memorandum of authorities filed by a party to the application in the

trial court;

(3) the opinion giving the reasons advanced by the trial court for denying relief;

(4) the trial court order or judgment denying relief.

Reasonable notice of the motion shall be given to all parties. The motion shall be filed with

the clerk of the Supreme Court and will be considered by a panel of the Supreme Court or

the Court of Appeals. In emergency cases the application may be considered by a single

justice or judge of the appropriate appellate court, and the applicant shall file the motion with

the clerk of the Supreme Court in writing as promptly as possible.

(d) Stay May Be Conditioned Upon the Giving of a Bond; Proceedings Against

Sureties. Relief available in the Supreme Court or the Court of Appeals under this rule may

be conditioned upon the filing of a bond or other appropriate security in the trial court. If the

security is given in the form of a bond or stipulation or undertaking with one or more

sureties, each surety submits itself to the jurisdiction of the trial court and irrevocably

appoints the clerk of the trial court as its agent upon whom any papers affecting its liability

on the bond or undertaking may be served. The surety's liability may be enforced on motion

in the trial court without the necessity of an independent action. The motion and notice of

the motion may be served upon the clerk of the trial court, who shall forthwith mail copies

to the sureties if their addresses are known.

[Adopted to govern matters filed on or after January 1, 1995; amended April 26, 2001]

Advisory Committee Historical Note

Effective April 24, 2001, Rule 8 was amended to add (b)(2)-(5). 783-785 So.2d XIX

(West Miss.Cases 2001).

Effective January 1, 1995, Miss.R.App.P. 8 replaced Miss.Sup.Ct.R. 8, embracing

proceedings in the Court of Appeals. 644-647 So.2d XXXV-XXXVII (West Miss.Cases

1994).

Comment

Rule 8(a) is based on Miss. Code Ann. § 11-51-31 (Supp. 1994) and Ala. R. App. P.

8(a). It provides for a stay of a money judgment pending appeal upon approval of a

supersedeas bond by the clerk of the trial court. In a case involving only a money judgment,

the appellant can obtain a stay by posting a bond approved by the clerk. A form for a

supersedeas bond is found in Form 5 in the Appendix of Forms.

All matters concerning stays are to be resolved in the first instance by the trial court,

if possible.

If the trial court clerk declines to approve the bond, the appellant must apply to the trial

court for approval under Rule 8(b). If the clerk approves the bond and the appellee contests

it for any reason, the appellee must file a motion with the trial court for disapproval of the

bond and to vacate the stay. If the appellant seeks a stay on any basis other than by posting

a 125 percent bond to supersede a money judgment, the appellant must apply to the trial court

for a stay. In determining whether to grant a stay, the trial court should endeavor to protect

the prevailing party. The purpose of a supersedeas bond is to preserve the status quo while

protecting the judgment creditor's rights pending appeal.

The trial court may grant or deny a stay upon such terms as to bond or otherwise as it

considers proper for the security of the adverse party. It may approve security in the form

of a cash or property bond. See M.R.C.P. 62.

While the trial court may not require a bond greater than 125 percent to supersede a

money judgment, the court may, in appropriate cases, approve a supersedeas bond of less

than 125 percent of the money judgment. See Henry v. First National Bank, 424 F. Supp.

633, 639 (N.D. Miss.), aff'd 595 F. 2d 291, 305 (5th Cir. 1979). If an appellant seeks relief

from the full bond requirement, the trial court must, upon notice and hearing find that good

cause justifies a departure from the usual bond requirements. At the hearing, the burden to

provide a secure alternative to the required bond rests on the judgment debtor. Before the

trial court can grant a reduced bond, there must be an objective demonstration that the

appellant's financial strength and ability to respond will remain undiluted during the

pendency of the appeal. A record sufficient to allow review should be made. The maximum

bond in a contempt case is set by statute, Miss. Code Ann. § 11-51-11 (Supp. 1994). When

the judgment is not a money judgment, the court may, but is not required to, follow the

practice of statutes supplanted by this rule, e.g., now-repealed Miss. Code Ann. § 11-51-35

(Supp. 1986) (double one year's rent to stay execution of a writ of possession in ejectment);

§ 11-51-39 (Supp. 1986) (double value of real estate to be surrendered); now-repealed

§ 11-51-41 (1972) (double value of real estate or charges on real estate).

Under Miss. Code Ann. § 11-51-101 (Supp. 1994), certain parties, including the state,

counties, municipalities, public officers, state educational or charitable institutions, and

federally-owned corporations are entitled to an automatic stay without posting bond or any

action by the clerk of the trial court under this rule. Similarly, no additional action by the

clerk of the trial court is required when the appellant has already posted a sufficient bond

prior to judgment under statutes governing appeals by executors, administrators, and

guardians, Miss. Code Ann. § 11-51-99 (Supp. 1994), or appeals in estate tax cases, Miss

Code Ann. § 27-9-47 (1994), or appeals from the State Tax Commission, Miss. Code Ann.

§ 27-35-163 (Supp. 1994).

Rule 8(c) and 8(d) are based on Fed. R. App. P. 8 and 5th Cir. R. 8.1.1. They set forth

the procedure to be followed when an appellant or appellee contests the trial court's action

on a stay.

[Amended, April 26, 2001.]

RULE 9. RELEASE IN CRIMINAL CASES

(a) Release Prior to a Judgment of Conviction. A petition challenging an order

refusing or imposing conditions of release shall be heard promptly by the Supreme Court or

the Court of Appeals if the case has been assigned to the Court of Appeals. Upon entry of

an order refusing or imposing conditions of release, the trial court shall state in writing the

reasons for the action taken. Where the petition challenges an order denying bail or setting

bail which the challenging party contends is excessive, the challenging party shall file

contemporaneously with the petition such papers, affidavits, and portions of the record as

will show:

(1) the nature and circumstances of the offense charged;

(2) the weight of the evidence;

(3) family ties of the defendant;

(4) defendant's employment status;

(5) defendant's financial resources;

(6) defendant's character and mental condition;

(7) defendant's length of residence in the community;

(8) defendant's record of prior convictions;

(9) defendant's record of appearances or flight;

(10) a copy of the trial court's order regarding bail;

(11) where available, a transcript of the trial court proceedings regarding bail. If the

party is unable to obtain such a transcript, the party shall state in an affidavit the

reasons the party cannot obtain it;

(12) such other matters as may be deemed pertinent.

An original and four (4) copies of the petition and accompanying documents shall be

filed with the clerk of the Supreme Court. The Supreme Court or the Court of Appeals may

require that additional copies be furnished.

(b) Release Pending Appeal From a Judgment of Conviction. Release after

judgment of conviction of a felony and pending direct appeal shall be governed by statute

and uniform rule. A party seeking release shall file with the party's motion for release the

same papers, affidavits, and portions of the record as are required by Rule 9(a).

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 9 replaced Miss.Sup.Ct.R. 9, embracing

proceedings in the Court of Appeals. 644-647 So.2d XXXVII-XXXVIII (West Miss.Cases

1994).

Comment

Rule 9(a) is substantially patterned after Fed. R. App. P. 9(a). Subdivision (b) continues

Mississippi practice for release after judgment of conviction provided in MRCrP 8.3, Miss.

Code Ann. §§ 99-35-105, -107, -109 (1994), Miss. Code Ann. § 99-35-115 (1994), Miss.

Code Ann. § 99-35-117 (1994). Both 9(a) and (b) require the party seeking release to

provide the appellate court with certain information relevant to release. See former 5th Cir.

R. 9.1, 9.2. Normally these facts will be part of the record in the trial court. Both petitions

under 9(a) and motions under 9(b) will be handled by the appropriate appellate court as

motions under Rule 27.

RULE 10. CONTENT OF THE RECORD ON APPEAL

(a) Content of the Record. The parties shall designate the content of the record

pursuant to this rule, and the record shall consist of designated papers and exhibits filed in

the trial court, the transcript of proceedings, if any, and in all cases a certified copy of the

docket entries prepared by the clerk of the trial court.

(b) Determining the Content of the Record.

(1) Designation of Record. Within seven (7) days after filing the notice of appeal, the

appellant shall file with the clerk of the trial court and serve both on the court reporter or

reporters and on the appellee a written designation describing those parts of the record

necessary for the appeal.

(2) Inclusion of Relevant Evidence. In cases where the defendant has received the death

sentence, the entire record shall be designated. In any other case, if the appellant intends to

urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to

the evidence, the appellant shall include in the record a transcript of all evidence relevant to

such finding or conclusion.

(3) Matters Excluded Absent Designation. In any case other than a case where the

defendant has received a death sentence, the record shall not include, unless specifically

designated,

i. subpoenas or summonses for any witness or defendant when there is an appearance

for such person:

ii. papers relating to discovery, including depositions, interrogatories, requests for

admission, and all related notices, motions or orders;

iii. any motion and order of continuance or extension of time;

iv. documents concerning the organization of the grand jury or any list from which

grand or petit jurors are selected;

v. pleadings subsequently replaced by amended pleadings;

vi. jury voir dire.

(4) Statement of Issues. Unless the entire record, except for those matters identified in

(b)(3) of this Rule, is to be included, the appellant shall, within the seven (7) days time

provided in (b)(1) of this Rule, file a statement of the issues the appellant intends to present

on the appeal and shall serve on the appellee a copy of the designation and of the statement.

Each issue in the statement shall be separately numbered. If the appellee deems inclusion

of other parts of the proceedings to be necessary, the appellee shall, within 14 days after the

service of the designation and the statement of the appellant, file with the clerk and serve on

the appellant and the court reporter a designation of additional parts to be included. The

clerk and reporter shall prepare the additional parts at the expense of the appellant unless the

appellant obtains from the trial court an order requiring the appellee to pay the expense.

(5) Attorney's Examination and Proposed Corrections. For fourteen (14) days after

service of the clerk's notice of completion under Rule 11(d)(2), the appellant shall have the

use of the record for examination. On or before the expiration of that period, appellant shall

return the record to the trial court clerk, and shall append to the record (i) a written statement

of any proposed corrections to the record, (ii) a certificate that the appellant or the appellant’s

attorney has carefully examined the record and that with the proposed corrections, if any, it

is correct and complete, and (iii) a certificate of service indicating that the record has been

returned to the clerk. For fourteen (14) days after receipt of the certificate of service from

appellant, appellee shall have the use of the record for examination. On or before the

expiration of that period, appellee shall return the record to the trial court clerk, and shall

append to the record (i) a written statement of any proposed corrections to the record, (ii) a

certificate that the appellee or the appellee’s attorney has carefully examined the record and

that with the proposed corrections, if any, it is correct and complete, and (iii) a certificate of

service, indicating that the record has been returned to the clerk. Corrections as to which all

parties agree in writing shall be deemed made by stipulation. If the parties propose

corrections to the record but do not agree on the corrections, the trial court clerk shall

forthwith deliver the record with proposed corrections to the trial judge. The trial judge shall

promptly determine which corrections, if any, are proper and enter an order under Rule 10(e).

Within five days, the trial court clerk shall serve all parties and their attorneys with a copy

of the order. If a party does not agree with the court’s order, that party shall, within five days

of service of the order, request a hearing. Such a request shall be assigned priority status on

the trial judge’s docket, and after a hearing, the trial judge shall promptly enter an order

directing the court reporter and/or the trial court clerk to make the appropriate correction(s),

if any, and to finalize completion of the record for transmission to this Court. Once the order

is entered, or if no hearing request is made, the record shall be returned to the court reporter

and/or the trial court clerk who shall within seven days make corrections directed by the

order. The trial court clerk shall verify that any approved changes have been made and that

the required certifications are appended to the record before sending it to the Supreme Court.

(c) Statement of the Evidence When No Report, Recital, or Transcript Is Available.

If no stenographic report or transcript of all or part of the evidence or proceedings is

available, the appellant may prepare a statement of the evidence or proceedings from the best

available means, including recollection. The statement should convey a fair, accurate, and

complete account of what transpired with respect to those issues that are the bases of appeal.

The statement, certified by the appellant or his counsel as an accurate account of the

proceedings, shall be filed with the clerk of the trial court within 60 days after filing the

notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice

of the filing on the appellee, accompanied by a short and plain declaration of the issues the

appellant intends to present on appeal. If the appellee objects to the statement as filed, the

appellee shall file objections with the clerk of the trial court within 14 days after service of

the notice of the filing of the statement. Any differences regarding the statement shall be

settled as set forth in subdivision (e) of this Rule.

(d) Agreed Statement as the Record on Appeal. In lieu of a record on appeal

designated pursuant to subdivisions (b) or (c) of this Rule, the parties may prepare and sign

a statement of the case showing how the issues presented by the appeal arose and were

decided in the trial court and setting forth only so many of the facts averred and proved or

sought to be proved as are essential to a decision of the issues presented. If the statement

conforms to the truth, it, together with such additions as the court may consider necessary

fully to present the issues raised by the appeal, shall be approved by the trial court and shall

then be certified to the Supreme Court as the record on appeal.

(e) Correction or Modification of the Record. If any difference arises as to whether

the record truly discloses what occurred in the trial court, the difference shall be submitted

to and settled by that court and the record made to conform to the truth. If anything material

to either party is omitted from the record by error or accident or is misstated in the record,

the parties by stipulation, or the trial court, either before or after the record is transmitted to

the Supreme Court or the Court of Appeals, or either appellate court on proper motion or of

its own initiative, may order that the omission or misstatement be corrected, and, if

necessary, that a supplemental record be filed. Such order shall state the date by which the

correction or supplemental record must be filed and shall designate the party or parties who

shall pay the cost thereof. Any document submitted to either appellate court for inclusion in

the record must be certified by the clerk of the trial court. All other questions as to the form

and content of the record shall be presented to the appropriate appellate court.

(f) Limit on Authority to Add to or Subtract From the Record. Nothing in this rule

shall be construed as empowering the parties or any court to add to or subtract from the

record except insofar as may be necessary to convey a fair, accurate, and complete account

of what transpired in the trial court with respect to those issues that are the bases of appeal.

[Amended effective January 1, 1999; amended July 1, 1999; amended effective July 1, 2011

to revise the procedure for attorney’s examination and proposed corrections.]

Advisory Committee Historical Note

Effective June 24, 1999, Rule 10(b)(5) was amended to effect editorial changes. 735

So.2d XIX (West Miss.Cases 1999).

Effective January 1, 1999, Rule 10(b)(5) was amended to require counsel to make

certifications regarding the record and to extend the examination period to 14 days. 717-722

So.2d XXVII (West Miss.Cases 1998).

Effective January 1, 1995, Miss.R.App.P. 10 replaced Miss.Sup.Ct.R. 10, embracing

proceedings in the Court of Appeals. 644-647 So.2d XXXVIII-XLI (West Miss.Cases 1994).

Effective July 1, 1994, the Comment to Miss.Sup.Ct.R. 10 was amended to delete

references to repealed statutes and material concerning the transition from statutory

procedures to Rule practice. 632-635 So.2d LI (West Miss.Cases 1994).

Comment

Rule 10 is based on Fed. R. App. P. 10, taking into account modifications suggested by

the more recent Ala. R. App. P. 10 and Tenn. R. App. P. 24.

The purpose of the Rule is to permit and encourage parties to include in the record on

appeal only those matters material to the issues on appeal. While subdivision (b) will govern

most appeals, subdivisions (c) and (d) provide alternate methods of preparing the record,

either when no transcript is available, or when the parties can agree on a "statement of the

case" that will adequately present the issues on appeal.

Subdivision (b) eliminates the confusion that followed City of Mound Bayou v. Roy

Collins Const. Co., 457 So. 2d 337 (Miss. 1984). That case directed court reporters to record

everything transpiring at trial, including voir dire and bench and chambers conferences. It

also, however, ended the jurisdictional requirement of designating the record pursuant to

Miss. Code Ann. § 9-13-33(1) to (4) (Supp. 1986). In doing so, it inadvertently encouraged

use of the entire record, a practice the Court then condemned in Byrd v. F-S Prestress, Inc.,

464 So. 2d 63, 69 (Miss. 1985). This rule reinstates the express requirement that the

appellant designate those parts of the record to be included on appeal. Form 2 in the

Appendix of Forms is a form for designation of the record. This requirement is no longer

jurisdictional, but a failure to comply with it could lead to dismissal pursuant to Rule 2(a)(2).

This is consistent with federal practice.

Pursuant to subdivision (b)(3), a general designation will not be construed to include

certain papers normally irrelevant to the issues on appeal. The rule thus encourages the

omission of these nonessential matters. Because counsel customarily do not file trial court

briefs with the clerk, briefs are not included in the (b)(3) list. Briefs do not normally belong

in a record on appeal, unless necessary to show that an issue was presented to the trial court.

A designation of certain issues under subdivision (b)(4) does not preclude a party from

stating other issues in its brief under Rule 28(a)(3). However, a party asserting other issues

in its brief will bear responsibility for the cost of preparing any additional portions of the

record subsequently designated by any other party in response to the statement of additional

issues. As a result, accurate designation under (b)(4) is advisable.

Subdivision (f) clearly states that the flexible procedures of this rule are not intended

to permit a party to augment the record with matters entered ex parte.

RULE 11. COMPLETION AND TRANSMISSION OF THE RECORD

(a) Duty of Appellant. After filing the notice of appeal the appellant or, in the event

that more than one appeal is taken, each appellant shall comply with the provisions of Rule

10 and shall take any other action necessary to enable the clerk to assemble and transmit the

record. A single record shall be transmitted.

(b) Estimation and Payment of Fees.

(1) Record Preparation Estimate and Deposit. Within seven (7) days after filing the

notice of appeal, the appellant shall estimate the cost of preparation of the record on appeal,

including, but not limited to, the cost of the preparation of the transcript, and shall deposit

that sum with the clerk of the court whose judgment or order has been appealed. The

appellant shall simultaneously file with the clerk of the trial court a certificate setting forth

the fact of compliance with this subparagraph and shall serve a copy of the certificate upon

all other parties, upon the court reporter, and upon the Supreme Court Clerk. The estimate

shall be calculated pursuant to estimates from the clerk(s) and court reporter(s). If the

appellant is unable to obtain an estimate from a clerk within the seven (7) days, the appellant

shall calculate the estimate at the statutory rate per page for the approximate number of pages

of clerk’s papers. If the appellant is unable to obtain an estimate from a court reporter within

the seven (7) days, the appellant shall calculate the estimate at the rate of $300.00 per day of

proceedings to be transcribed.

(2) Application to Increase Deposit. If dissatisfied with the amount tendered, either

the clerk of the trial court or the court reporter may apply for an increase to the trial court

which, after reasonable advance notice and opportunity to be heard having been afforded all

parties, and for good cause shown, may order the amount of the deposit increased. The party

taking the appeal shall comply with any such order within 14 days of the date of entry. The

deposit and any such order shall be provisional, subject to adjustment after the transcript has

been completed and its actual cost ascertained.

(c) Duty of Reporter to Prepare and File Transcript. Upon the appellant's

compliance with subparagraph (b)(1) and service of the designation required by Rule

10(b)(1), the reporter shall commence preparation of the transcript. The reporter's transcript

shall conform to the Guidelines for Court Reporters adopted by the Supreme Court, attached

as Appendix III to these rules and incorporated herein by reference, and shall contain a title

page setting out the style, number, and counsel appearances; a table of contents; and a

certificate of completion. It shall not contain any exhibits. The transcript table of contents

shall, however, indicate for each exhibit whether or not it was admitted into evidence.

If the transcript cannot be completed within 60 days of service of the designation, one

30 day extension may be granted by the trial court by order served on all parties and the clerk

of the Supreme Court. Any subsequent extension shall be sought from the clerk of the

Supreme Court. Any such request may be made orally or in writing and shall specify in

detail:

(1)

the amount of work that has been accomplished on the transcript,

(2)

all outstanding transcripts due to this and other courts, including the due dates

of filing, and

(3)

verification that the request has been brought to the attention of, and approved

by, the trial judge who tried the case.

The action of the clerk of the Supreme Court shall be entered and the court reporter shall

confirm the action in writing within seven (7) days to the clerk with a copy to the trial judge

and to the parties. When an extension is granted on oral request, the confirmation shall

include the information required to be specified in the request. In the event of the failure of

the reporter to file the transcript within the time allowed, the clerk of the Supreme Court shall

notify the trial judge and take such other steps as may be directed by the Supreme Court.

Upon completion of the transcript the reporter shall certify the transcript as an accurate

account of the proceedings and file the original and one copy of the transcript with the clerk

of the trial court. The reporter shall simultaneously certify and serve notice of the filing on

the parties and on the clerk of the Supreme Court. Additionally, the reporter shall prepare

an electronically formatted medium (such as USB Flash Drive or CD-ROM) of the transcript

filed and shall file the electronic medium with the trial court clerk for inclusion in the

appellate record. All electronic media and electronic files stored thereon must be in an

industrial standardized format with the electronic transcript stored in the Adobe Portable

Document Format (PDF). All electronic media shall be labeled to include the following

information:

(1) style of the case; and,

(2) number of CD-ROMs, i.e., 1 of 2, 2 of 2, etc.

After such filing and service of notice, the trial court clerk may disburse actual fees

earned to the court reporter from estimated fees deposited pursuant to Rule 11(b).

(d) Duty of Trial Court Clerk to Prepare and Transmit Record.

(1) Clerk's Preparation of Record. Upon the appellant’s compliance with subparagraph

(b)(1) and service of the designation required by Rule 10(b)(1), the trial court clerk shall

assemble the record as follows:

i.

Clerk’s Papers.

(a)

Conventional. A certified copy of the docket entries prepared by the clerk

of the trial court shall be followed by a legible photocopy of any papers

filed with the clerk and designated by the parties and a cost bill for the

preparation of the record indicating costs for the trial court clerk and

court reporter and the Supreme Court filing fee. Within 30 days, the

clerk shall assemble the papers in the order of filing, number each page

consecutively at the bottom, and transmit a list of the papers

correspondingly numbered and identified with reasonable definiteness.

All jury instructions shall be placed in the record with court instructions

first, instructions given to plaintiff second, instructions refused plaintiff

third, instructions given to defendant fourth, and instructions refused

defendant fifth.

The trial court clerk shall separate the clerk’s papers into volumes of no

more than 150 pages for fastening. The clerk shall fasten the clerk’s

papers on the top and provide suitable covers for each volume. Each

volume of clerk’s papers shall be bound in a brown binder and the

outside of each binder shall designate the page numbers of the pages

contained in that volume.

(b)

Electronic. Within 30 days, the clerk shall use the Mississippi Electronic

Court (MEC) system to assemble the record as follows. The docket shall

be followed by the papers designated by the parties and a cost bill for the

preparation of the record indicating costs for the trial court clerk and

court reporter. The clerk shall assemble the papers in the order of filing,

except that jury instructions shall be assembled with court instructions

first, instructions given to plaintiff second, instructions refused plaintiff

third, instructions given to defendant fourth, and instructions refused

defendant fifth.

The Supreme Court filing fee shall be mailed to the Supreme Court.

ii.

Transcript.

(a)

Conventional. The original transcript is prepared by the court reporter

pursuant to Rule 11(c). The clerk of the trial court shall not renumber

the pages of the original transcript, nor make copies of the original

transcript, nor handle the original transcript in any way other than to

include in the table of contents of the Clerk's Papers the number of

volumes contained in the original transcript and include the original

transcript as part of the record to be transmitted to the Supreme Court.

The court reporter is responsible for preparing, certifying, and binding

the transcript and is responsible for furnishing the transcript fully ready

for transmission to the Supreme Court.

(b)

Electronic. The original transcript is prepared by the court reporter

pursuant to Rule 11(c). The court reporter shall either file the transcript

electronically or deliver the transcript on an electronic disk to the clerk

so that the clerk can then file the transcript electronically. The court

reporter is responsible for preparing and certifying the transcript and for

furnishing the transcript fully ready for transmission to the Supreme

Court.

iii. Exhibits.

(a)

Conventional. Within 30 days, a copy of exhibits designated by the

parties shall be assembled in a flat file envelope or a box. If an exhibit

is a photograph, the original shall be included and a photocopy retained

by the trial court clerk. Video and audio tapes shall be included and a

duplicate shall be retained by the trial court clerk. The clerk shall

include with the exhibits forwarded to the Supreme Court a list of all

exhibits designated by the parties, indicating thereon those retained by

the trial court clerk and those submitted to the Supreme Court.

Documents of unusual bulk or weight and physical exhibits other than

documents, shall not be transmitted by the trial court clerk unless the

clerk is directed to do so by a party or by the clerk of the Supreme Court.

A party must make advance arrangements with the clerks for the

transportation and receipt of exhibits of unusual bulk or weight.

(b)

Electronic. Within 30 days, exhibits designated by the parties shall be

assembled as follows. If the document or photograph can be scanned, the

trial court clerk shall scan the exhibit, convert the file to Adobe Portable

Document Format (PDF), and retain the original unless a party or the

clerk of the Supreme Court directs otherwise. If the document,

photograph, or physical exhibit cannot be scanned, the trial court clerk

should, if possible, photograph the exhibit; scan or convert the

photograph to PDF; and retain the original unless a party or the clerk of

the Supreme Court directs otherwise.

The trial court clerk shall comply with subsection (d)(1)(iii)(a) if

• the exhibit can neither be scanned nor photographed;

• the PDF image is deficient so that the original is necessary; or

• the exhibit is a video or audio recording.

Following the time for attorney’s examination and proposed correction

under Rule 10(b)(5), the trial court clerk shall send all PDF exhibits to

the Supreme Court using the Mississippi Electronic Court (MEC) system.

When forwarding exhibits to the Supreme Court, the trial court clerk

shall include a list of all designated exhibits, indicating those scanned,

those photographed, those submitted conventionally, and those retained

by the trial court clerk.

(2) Transmission of Record. When the clerk’s papers and exhibits are assembled and

the transcript is received, the clerk shall then execute a certificate of compliance with this

Rule and serve notice of completion on the parties and on the clerk of the Supreme Court.

At the end of the time prescribed by Rule 10(b)(5), the clerk shall immediately deliver the

record to the Supreme Court.

(e) Retention of Duplicate Record in Trial Court for Use in Preparing Appellate

Papers. The trial court shall retain, pending further order of the Supreme Court, its original

docket entries, the original papers held with the clerk, a copy of the list of papers required

by Rule 11(d)(1)(I), the original exhibits, other than photographs, a photocopy of

photographic exhibits, a copy of video and audio tape exhibits, a duplicate of the reporter's

transcript, and table of contents. Attorneys preparing appellate papers may use these retained

documents. In cases where the circuit or chancery court has functioned as an appellate court

for review of an on-the-record adjudication by an administrative agency or inferior tribunal

and the circuit or chancery court clerk determines that a copy of the proceedings of such

adjudication is retained in the administrative agency or inferior tribunal, the circuit or

chancery court clerk need not copy the record of such proceedings, but must retain the

original of the papers and documents attendant to the proceedings in that court while

transmitting to the Supreme Court the original of the agency or inferior tribunal record

(including transcript, papers, documents, and exhibits), along with a copy of the record of the

circuit or chancery court proceedings.

(f) Record for Preliminary Hearing in the Supreme Court. If, prior to the time the

record is transmitted, a party desires to make in the Supreme Court a motion for dismissal,

for release, for a stay pending appeal, for additional security on the bond on appeal or on a

supersedeas bond, or for any intermediate order, the clerk of the trial court at the request of

any party shall transmit to the Supreme Court copies of such parts of the original record as

any party shall designate, or shall certify them for transmission by the party.

[Adopted to govern matters filed on or after January 1, 1995; amended effective May 23,

2002; amended effective June 27, 2002; amended March 23, 2006 to provide that the trial

court clerk shall assemble the record at the same time as the court reporter prepares the

transcript; amended effective July 1, 2009; amended effective July 1, 2011 to revise the time

for preparation of the clerk’s papers and exhibits; amended effective January 12, 2017 to

accommodate electronic transmission of the appellate record.]

Advisory Committee Historical Note

Effective June 27, 2002, Rule 11(c) and the Comment were amended to delete

requirements that the reporter prepare and serve an acknowledgment of receipt of the

certificate of compliance. 819-821 So.2d XV (West Miss.Cases 2002).

Effective May 23, 2002, Rule 11(b)(1) and the Comment were amended to provide

alternative methods for estimating costs. 813-815 So.2d XXVIII (West Miss.Cases 2002).

Effective January 1, 1995, Miss.R.App.P. 11 replaced Miss.Sup.Ct.R. 11. 644-647

So.2d XLI-XLVI (West Miss.Cases 1994).

Effective July 1, 1994, Miss.Sup.Ct.R. 11(d)(2) and Appendix III, section II(1), were

amended to provide further detail concerning the binding and labeling of the clerk’s papers

and the transcript. 632-635 So.2d XLVI-XLVIII (West Miss.Cases 1994).

Comment

Rule 11(b) provides the appellant shall estimate costs based on estimates received from

the clerk(s) and court reporter(s) if available within 7 days after filing the notice of appeal.

If either the clerk(s) or court reporters(s) do not provide estimates, Rule 11(b)(1) provides

for alternative methods. Even though Rule 3(a) no longer makes prepayment of costs an

absolute criterion for perfecting an appeal, the Supreme Court can respond under Rule

2(a)(2) to such failure with an appropriate sanction, including dismissal. Appellants who

claim exemption from payment or prepayment of costs, see, e.g., Rule 6 (in forma pauperis

appeals); Miss. Code Ann. § 11-53-13 (1972); City of Mound Bayou v. Roy Collins Const.

Co., 457 So.2d 337 (Miss.1984) (exemption for state, county, city, town or village), should

estimate the cost of preparation of the record but claim the exemption in the certificate of

compliance required by Rule 11(b)(1). If the exemption is denied, the appellant should then

prepay as required by the rule. Form 3 in the Appendix of Forms is a form for the certificate

required by this rule.

Rule 11(c) gives to the Supreme Court the authority to rule on certain requests for

extension. The Court may empower its clerk to rule on such requests and to grant extensions

up to a specified time, e.g., 30 days. The rule prescribes the content of the reporter's request.

The rule also provides that the transcript is to conform to the Guidelines for Court Reporters

and exhibits are not to be physically incorporated in the transcript, thereby ensuring that all

transcripts will be uniform and eliminating the awkward folding and separation of

documentary exhibits by page.

Rule 11(c) also requires the court reporter to prepare and file with the original transcript

a copy of the transcript in an electronically formatted medium. This procedure provides the

Supreme Court a copy of the transcript via electronic format for future reference by the

Court, if required.

The transcript table of contents required by Rule 11(c) should comply with Miss. Code

Ann. § 9-13-25 (1972).

Rule 11(d) requires that the trial court clerk prepare the record on appeal. It eliminates

the binding of records in book form and so avoids an unnecessary expense to the parties.

Under Rule 11(d), the record as transmitted will consist of (1) the certified copy of docket

entries, a photocopy of filed papers designated by the parties, and a cost bill; (2) the original

transcript; and (3) an envelope or box containing a copy of designated exhibits accompanied

by the list identifying which exhibits are retained by the clerk and which are submitted to the

Supreme Court required by Rule 11(d)(1)(iii). The clerk may mark the certified copy of

docket entries with the page numbers corresponding to each entry and so provide the list of

documents required by Rule 11(d)(1)(I). Form 6 in the Appendix of Forms is a form for a

list of clerk's papers. The form can be used if the docket sheet is illegible or for any other

reason a satisfactory list cannot be produced by adding record page numbers to the docket

sheet. The rule does not follow the federal practice of appeals entirely on the original record,

but retains the requirement of copying original papers and exhibits for use by the Supreme

Court. This requirement reduces the bulk of documents to be reviewed by the Court and

provides for a duplicate copy of essential records.

The requirement that the clerk duplicate exhibits may, in some cases, impose an

unnecessary expense on the parties. For this reason, Rule 11(d) provides that the clerk shall

not duplicate documents of unusual bulk or weight and Rule 12 provides for the transmission

of original items to the Supreme Court. The retention of designated records in the trial court

would not preclude the parties from including parts of those records in their record excerpts

submitted pursuant to Rule 30. Rules 11(d)(1)(iii) and 11(e) provide that the trial court clerk

is to retain a photocopy of exhibits which are photographs and a copy of video and audio

tapes, and is to send the original photographic exhibits and original audio or video tapes to

the Supreme Court without a special request.

Rules 11(e) and (f) follow Fed.R.App.P. 11(c) and (g).

[Comment amended May 23, 2002; amended effective June 27, 2002; amended effective

July 1, 2009.]

RULE 12. TRANSMISSION OF ORIGINAL ITEM FROM THE TRIAL COURT

Any party to an appeal or any justice of the Supreme Court or judge of the Court of

Appeals may request that an original of any writing, document or exhibit in the record on

appeal be delivered to the appropriate appellate court. The request shall be made to the clerk

of the Supreme Court. Upon receipt of such request, the clerk of the Supreme Court shall

request the original from the trial court clerk. The clerk of the trial court shall photocopy the

original and forward the original to the clerk of the Supreme Court, retaining the photocopy

in the clerk's office. Following disposition in the Supreme Court or the Court of Appeals,

the clerk of the Supreme Court shall return the original to the clerk of the trial court.

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 12 replaced Miss.Sup.Ct.R. 12, embracing

proceedings in the Court of Appeals. 644-647 So.2d XLVI (West Miss.Cases 1994).

Comment

Rule 12 is based on Ala.R.App.P. 13 and former Mississippi practice. This Rule applies

only to matters designated as a part of the record and is not a substitute for a motion to

supplement the record pursuant to Rule 10(e).

RULE 13. DOCKETING THE APPEAL AND FILING THE RECORD

(a) Docketing the Appeal. Upon receipt of the copy of the notice of appeal

transmitted by the clerk of the trial court pursuant to Rule 3(d), the clerk of the Supreme

Court shall enter the appeal upon the docket and assign it a docket number which includes

the designation TS to serve as a tracking number. The docket number shall remain the same

throughout the appellate process regardless of whether the case is assigned to the Court of

Appeals or is retained by the Supreme Court. An appeal shall be docketed under the title "

, Appellant(s) v.

, Appellee(s)," identifying appellant(s) and appellee(s).

(b) Filing the Record, Partial Record, or Certificate. Upon receipt of the record

transmitted pursuant to Rule 11(d), or the partial record transmitted pursuant to Rule 11(f),

the clerk of the Supreme Court shall file it, replace the TS designation with a designation to

indicate the kind of case it is (e.g., KA for criminal appeal, CA for civil appeal, etc.) and

immediately give notice to all parties of the date on which it was filed.

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 13 replaced Miss.Sup.Ct.R. 13, embracing

proceedings in the Court of Appeals. Rule 13 was further amended to effect technical

changes concerning docketing and tracking appeals. 644-647 So.2d XLVI-XLVII (West

Miss.Cases 1994).

Comment

Rule 13 follows Fed.R.App.P. 12. Rule 45 sets forth other duties of the clerk.

Docketing the appeal at the time the notice of appeal is filed gives the Supreme Court greater

control over the appellate process. It also recognizes the principle that perfection of the

appeal by filing the notice vests jurisdiction over the case in the Supreme Court, except as

otherwise provided by statute or rule.

RULE 14. FINDINGS OF FACT AND CALCULATIONS

DURING THE COURSE OF AN APPEAL

(a) Finding of Fact by the Supreme Court. The Supreme Court (and the Court of

Appeals on those cases assigned to it by the Supreme Court) may try and determine all issues

of fact which may arise out of any appeal before it and which are necessary to the disposition

of the appeal, and, to this end, may, by order in each case, prescribe in what way evidence

may be produced before it on the issue.

(b) Finding of Fact by the Trial Court. In the event the Supreme Court or the Court

of Appeals so directs, the trial court may determine all issues of fact which may arise out of

any appeal submitted to the trial court for a determination, and which may be necessary for

the disposition of cases on appeal.

(c) Calculations. When a party relies on an error in the calculation of interest or

damages as a reason for altering a judgment, a true calculation shall be presented to the

appellate court, in writing and figures, with a certificate by a certified public accountant not

interested in the cause, that the calculation is correct; and no such error will be noticed unless

so presented to the Supreme Court or the Court of Appeals.

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 14 replaced Miss.Sup.Ct.R. 14, embracing

proceedings in the Court of Appeals. 644-647 So.2d XLVII-XLVIII (West Miss.Cases

1994).

Comment

Rule 14(a) is a restatement of the authority to determine facts arising out of the appeal

itself vested in the Court by Miss. Code Ann. § 9-3-37 (1972).

Subdivisions (b) and (c) carry forward procedures, previously followed by the Court,

except that (c) now requires that a certified public accountant prepare the certificate.

RULE 15. MANDAMUS TO REQUIRE TRIAL COURT DECISION

(a) When a trial judge in a civil case takes under advisement a motion or request for

relief which would be dispositive of any substantive issues and has held such motion or

request under advisement for sixty (60) days, the plaintiffs and the defendants shall each

within fourteen (14) days thereafter submit a proposed order or judgment to the trial judge

and shall forward to the Administrative Office of Courts, the trial court clerk and the

opposing parties true copies thereof with a statement setting forth the style and number of

the case, the names and addresses of the judge and of all parties and the date on which such

motion or request was taken under advisement. On receipt of such proposed orders and

notices, the Administrative Office of Courts shall calendar them and notify the trial judge and

the trial court clerk of the filing. At any time thereafter that an order or judgment is entered

on the motion or request for relief, the plaintiffs and the defendants shall, in writing,

promptly notify the Administrative Office of Courts and the opposing parties of the date of

entry of the decision; copies of such notification shall be sent to the judge and the trial court

clerk. If no written notice of a decision is received by the Administrative Office of Courts

within six(6) months from the date the case was taken under advisement, the Administrative

Office of Courts shall confirm with the trial court clerk that no order or judgment has been

entered and notify the Supreme Court. The Administrative Office of Courts will forward

copies of its notification to the trial judge and parties and shall advise the judge and counsel

that they are to respond to the notice within a specified period. The Supreme Court shall

treat such notification as the filing of an application for a writ of mandamus by all the parties

to the action and shall proceed accordingly. The notice of the Administrative Office of

Courts of the time within which to respond shall satisfy the requirements of M.R.A.P. 21(d).

(b) The trial judge, not later than thirty (30) days prior to the expiration of the six (6)

months from the date the case was taken under advisement, for just cause shown, may apply

in writing to the Supreme Court for additional time beyond said six (6) months in which to

enter a decision. Concurrently, the judge shall provide a copy of such application to each of

the parties.

[Amended effective October 10, 2002.]

Advisory Committee Historical Note

Effective October 17, 2002, Rule 15 and the Comment were entirely rewritten. 827-829

So.2d XVII (West Miss.Cases 2002).

Effective June 14, 1996, Rules 15(a) and (c) were amended to provide that failure to

timely file an application for a writ of mandamus will not result in dismissal when the failure

is caused by excusable neglect and dismissal will result in manifest injustice. 673-678 So.2d

XXXV (West Miss. Cases 1996).

Effective January 1, 1995, Miss.R.App.P. 15 replaced Miss.Sup.Ct.R. 15. 644-647

So.2d XLVIII-XLIX (West Miss.Cases 1994).

Comment

This rule recognizes the importance of prompt disposition of matters submitted to the

courts for decision and is in accord with M.R.C.P. 1 in its dictate that the rules be construed

to secure just, speedy and inexpensive determination of actions, and with Section 3A(5) of

the Code of Judicial Conduct which requires that judges promptly dispose of the business of

the courts.

In its former version, Rule 15 applied where a judge failed to render a decision “on a

motion or request for relief which would be dispositive of all the claims or the rights and

liabilities of all the parties.” As revised, the rule is now applicable to instances wherein no

decision has issued on motions or requests for relief “which would be dispositive of any

substantive issues.”

The rule requires the Administrative Office of Courts to invite the trial judge and parties

to respond to its notification of a matter having been held under advisement and to set a

specified time during which such responses shall be filed with the Supreme Court. This

satisfies the requirement of M.R.A.P. 21(d) requiring an opportunity for the judge and parties

to respond to a petition for writ of mandamus.

The notification to the Administrative Office of Courts of matters taken under

advisement is mandatory and the parties are not at liberty to disregard the duty. This rule

provides a mechanism to facilitate disposition of matters as promptly as fair consideration

of the issues allows. The judge may and is expected to seek additional time where just cause

is found for further deliberation.

[Amended effective October 10, 2002.]

RULE 16. JURISDICTION OF THE SUPREME COURT

AND THE COURT OF APPEALS; ASSIGNMENT OF CASES

TO THE COURT OF APPEALS

(a) Jurisdiction of the Supreme Court. The Supreme Court shall have such

jurisdiction as is provided by Constitution and statute. All appeals from final orders of trial

courts shall be filed in the Supreme Court and the Supreme Court shall assign cases, as

appropriate, to the Court of Appeals.

(b) Jurisdiction of the Court of Appeals. Pursuant to Miss. Code Ann. § 9-4-3

(Supp. 1994), the Court of Appeals shall have only such jurisdiction as is conferred upon it

by assignment of appeals and other proceedings by the Supreme Court. The Supreme Court

may, by statute, assign any appeal to the Court of Appeals except appeals in cases involving:

(1) the imposition of the death penalty;

(2) utility rates;

(3) annexations;

(4) bond issues;

(5) election contests; or

(6) a trial court's holding a statute unconstitutional.

(c) Transfer of Case or Matter to Court of Appeals. In matters which could be

properly handled in either court but which are originally retained by the Supreme Court, that

Court may, at any time prior to the issuance of an opinion or ruling disposing of a case or

matter before it, transfer the case to the Court of Appeals if the Court determines that

expeditious disposition requires the case be decided by the Court of Appeals.

(d) Initial Assignment to the Court of Appeals. The clerk of the Supreme Court,

subject to the directions of the Court, will designate those cases retained by that Court for

disposition and those assigned to the Court of Appeals.

Although any case, other than those which the Supreme Court is statutorily required to

retain, may be assigned to the Court of Appeals, the Supreme Court will retain all cases

involving attorney discipline, judicial performance, and certified questions from a federal

court. The Court will also ordinarily retain cases involving:

(1) a major question of first impression;

(2) fundamental and urgent issues of broad public importance requiring prompt or

ultimate determination by the Supreme Court;

(3) substantial constitutional questions as to the validity of a statute, ordinance, court

rule, or administrative rule or regulation;

(4) issues upon which there is an inconsistency in the decisions of the Court of

Appeals or of the Supreme Court or conflict between the decisions of the two

courts.

In assigning matters to the Court of Appeals, the Supreme Court may take into account

the relative workloads of the Supreme Court and the Court of Appeals. The Supreme Court

may also, by order, provide that cases falling within identified categories, defined by subject

matter or other general criteria, shall be designated for immediate transfer to the Court of

Appeals or retention by the Supreme Court. Except for those cases which the Supreme Court

is required by statute to retain, a party has no right to have his or her case heard by the

Supreme Court.

(e) Assignment Decision Final and Not Subject to Reconsideration on Petition of

Party or Court of Appeals. After entry of an order assigning a case to the Court of

Appeals, neither the Court of Appeals nor any party may file any pleading or certification

seeking reassignment. Any reassignment may take place only on the motion of the Supreme

Court.

[Amended effective October 15, 1998].

Advisory Committee Historical Note

Effective October 15, 1998, Rule 16(d) was amended to provide that the clerk will

designate those cases retained by the Supreme Court and those assigned to the Court of

Appeals. 717-722 So.2d XXVII (West Miss.Cases 1998).

Effective January 1, 1995, the Supreme Court promulgated Miss.R.App.P. 16, entitled

“Jurisdiction of the Supreme Court and the Court of Appeals; Assignment of Cases to the

Court of Appeals.” Miss.Sup.Ct.R. 16 had been designated reserved. 644-647 So.2d XLIXXLI (West Miss.Cases 1994).

Comment

M.R.A.P. 16, dealing with the jurisdiction of the Supreme Court and the Court of

Appeals, has no counterpart in the former Supreme Court Rules. The rule specifies the cases

which must, pursuant to Miss. Code Ann. § 9-4-3-(1) (Supp. 1994), be decided by the

Supreme Court. The rule further provides that all matters involving bar discipline and

judicial performance will be decided by the Supreme Court, as will certified questions from

federal courts. The rule makes it clear that any other case may, in the discretion of the

Supreme Court, be assigned to the Court of Appeals. The rule sets forth criteria for retention

of other cases in the Supreme Court, but the rule suggests that the Supreme Court will not

ordinarily exercise its discretion to retain a case unless it is apparent that the case presents

an issue which is of such broad and fundamental public importance that the Supreme Court

must ultimately be involved in its disposition or unless the issue presented is such that its

resolution is highly likely to result in significant development of the law. The rule does not

preclude the assignment of cases involving law development to the Court of Appeals but

provides that such assignments will not be routinely made.

Section (d) provides that a party has no right to have his case heard by the Supreme

Court, and section (a) provides that the Court will not entertain any pleading which seeks to

have a case reassigned to the Supreme Court from the Court of Appeals.

RULE 17. REVIEW IN THE SUPREME COURT

FOLLOWING DECISION BY THE COURT OF APPEALS

(a) Decisions of Court of Appeals Reviewable by Writ of Certiorari. A decision of

the Court of Appeals is a final decision which is not reviewable by the Supreme Court except

on writ of certiorari. Review on writ of certiorari is not a matter of right, but a matter of

judicial discretion. The Supreme Court may grant a petition for writ of certiorari on the

affirmative vote of four of its members and may, by granting such writ, review any decision

of the Court of Appeals. Successive review of a decision of the Court of Appeals by the

Supreme Court will ordinarily be granted only for the purpose of resolving substantial

questions of law of general significance. Review will ordinarily be limited to:

(1) cases in which it appears that the Court of Appeals has rendered a decision which

is in conflict with a prior decision of the Court of Appeals or published Supreme

Court decision;

(2) cases in which it appears that the Court of Appeals has not considered a

controlling constitutional provision;

(3) cases which should have been decided by the Supreme Court because:

(i) the statute or these rules require decision by the Supreme Court, or

(ii) they involve fundamental issues of broad public importance requiring

determination by the Supreme Court.

Notwithstanding the presence of one or more of these factors, the Supreme Court may

decline to grant a petition for certiorari for review of the decision of the Court of Appeals.

The Court may, in the absence of these factors, grant a writ of certiorari.

(b) Time for Filing Petition for Writ of Certiorari; Content and Length of Petition.

A party seeking review of a judgment of the Court of Appeals must first seek review of that

court's decision by filing a motion for rehearing in the Court of Appeals. If a party seeks

review in the Supreme Court, a petition for a writ of certiorari for review of the decision of

the Court of Appeals must be filed in the Supreme Court and served on other parties within

fourteen (14) days from the date of entry of judgment by the Court of Appeals on the motion

for rehearing, unless extended upon motion filed within such time. An untimely petition may

be summarily dismissed by a single justice of the Supreme Court. The petition for writ of

certiorari may not exceed ten (10) pages in length and must briefly and succinctly state the

precise basis on which the party seeks review by the Supreme Court, and may include citation

of authority in support of that contention. No citation to authority or argument may be

incorporated into the petition by reference to another document. The petitioner must file an

original and ten (10) copies of the petition. The petitioner must attach, as appendices to the

petition, a copy of the opinion and judgment of the Court of Appeals, and a copy of the

motion for rehearing filed in the Court of Appeals.

(c) Briefs and Oral Argument Not Permitted. Neither briefs nor oral argument shall

be allowed in support of a petition for a writ of certiorari, unless requested by the Supreme

Court.

(d) Response to Petition for Writ of Certiorari. Within seven (7) days after the filing

of a petition for a writ of certiorari, any other party to the case may, but need not, file and

serve an original and 10 copies of a written response in opposition to the petition. The

response may not exceed ten (10) pages in length. No citation to authority or argument may

be incorporated into the response by reference to another document. The respondent may

attach, as an appendix, his or her response to the motion for rehearing filed in the Court of

Appeals.

(e) Decision by the Supreme Court. The Supreme Court shall act upon a petition for

a writ of certiorari within ninety (90) days of the filing of the response provided for in

subsection (d) above, or, should no response be filed, the final date upon which such

response could be filed. The failure of the Court to issue such a writ within that period shall

constitute a rejection of the petition and the petition shall be deemed denied.

(f) Reconsideration Not Permitted. Neither an acceptance nor a rejection of a

petition for certiorari shall be subject to further pleading by a party for rehearing or

reconsideration. Prior to final disposition, the Supreme Court may, on its own motion, find

there is no need for further review and may dismiss the certiorari proceeding.

(g) Notification of Grant of Petition for Certiorari. Upon the Supreme Court's

disposition of a petition for a writ of certiorari, the clerk of the Supreme Court shall

immediately notify the parties.

(h) Supplemental Briefs; Record on Review. Upon notice of a grant of certiorari,

any party may, whether requested by the Court or not, within 10 days, file an original and 10

copies of a supplemental brief not to exceed 10 pages. No additional time or pages shall be

allowed for supplemental briefs. The Supreme Court may require supplemental briefs on the

merits of all or some of the issues for review. The Supreme Court's review on the grant of

certiorari shall be conducted on the record and briefs previously filed in the Court of

Appeals and on any supplemental briefs filed. The Supreme Court may limit the question

on review.

(i) Oral Argument. Oral argument shall not be allowed, unless requested by the

Supreme Court. The Court may require oral argument.

(j) Mandate. The timely filing of a petition for a writ of certiorari shall stay the

issuance of the mandate of the Court of Appeals. Upon the issuance of an order of denial of

a petition for a writ of certiorari or upon the expiration of the period allowed for the

Supreme Court's consideration of such a petition, the clerk of the Supreme Court shall issue

the mandate, pursuant to M.R.A.P. 41.

[Amended February 10, 1995; amended effective September 28, 1995; amended June 21,

1996; amended effective January 1, 1999; amended July 1, 1999.]

(k) Motions to dismiss or withdraw opinion filed after petition for writ of

certiorari. Where motions to dismiss an appeal or motions to withdraw or alter an opinion

of the Court of Appeals are filed after petitions for writ of certiorari have been filed in the

Supreme Court, the proceedings on the petitions for writ of certiorari will be suspended and

the cases will be remanded to the Court of Appeals to address the motions. After the Court

of Appeals has addressed the motions, the matter shall proceed in the Supreme Court, and,

if the motion to dismiss the case has been granted, the petition may be dismissed as moot.

[Adopted to govern matters filed on or after January 1, 1995; amended February 10, 1995;

amended effective September 28, 1995; amended June 21, 1996; amended October 15, 1998,

effective from and after January 1, 1999; amended June 24, 1999; amended effective January

3, 2002; amended effective July 1, 2012 to revise subsection (f).]

Advisory Committee Historical Note

Effective January 3, 2002, a new Rule 17(k) was adopted. 803-804 So.2d XIX

(West Miss.Cases 2002).

Effective June 24, 1999, Rule 17(b) was amended to effect editorial changes. 735

So.2d XIX (West Miss.Cases 1999).

Effective January 1, 1999, Rule 17(b) was amended to provide that untimely

certiorari petitions may be summarily dismissed by a single justice and to provide that

motions to extend the time to file a certiorari petition must be made within the original 14

days. 717-722 So.2d XXVII (West Miss.Cases 1998).

Effective January 1, 1999, Rule 17(e) was amended to effect a technical change.

So.2d 717-722 XXVII (West Miss.Cases 1998).

Effective June 21, 1996, Rule 17 (e) was amended to enlarge the period for acting

on certiorari petitions from sixty to ninety days. In addition, Rule 17(b) was amended to

redesignate rehearing “petitions” as “motions,” and Rule 17 (d) was amended to

consistently designate certiorari “petitions” as “petitions” and effect another technical

change. 673-678 So.2d XXXIX-XL (West Miss. Cases 1996).

Effective September 25, 1995, Rule 17(b) was amended to make clear that the time

for filing a petition a writ of certiorari begins to run with the entry of the judgment of the

Court of Appeals on the required petition for rehearing, and to effect unrelated technical

changes. 660 So.2d LXXXIII-LXXXIV (West Miss.Cases 1995).

Effective February 10, 1995, Rule 17(j) was amended to state that the clerk shall

issue the mandate in accordance with Miss.R.App.P. 41. 648 So.2d XXXII (West

Miss.Cases 1995).

Effective January 1, 1995, the Supreme Court promulgated Miss.R.App.P. 17,

entitled “Review in the Supreme Court Following Decision by the Court of Appeals.”

Miss.Sup.Ct.R. 17 had been designated reserved. 644-647 So.2d LI-LIII (West

Miss.Cases 1994).

Comment

Rule 17 provides a procedure by which parties may seek Supreme Court review of a

judgment of the Court of Appeals. Section (a) follows Miss. Code Ann. § 9-4-3(2)(Supp.

1994) which provides that "[d]ecisions of the Court of Appeals are final and are not subject

to review by the Supreme Court, except by [grant of] writ of certiorari . . . by the affirmative

vote of four (4) of [the Supreme Court's] members."

RULE 18. [OMITTED]

APPEALS FROM AGENCY RESPONSIBLE

FOR UTILITY RATES

RULE 19. APPEALS FROM THE PUBLIC SERVICE COMMISSION

Appeals from an administrative agency charged by law with the responsibility for

approval or disapproval of rates sought to be charged the public by any public utility are

governed by statutes enacted pursuant to the Mississippi Constitution of 1890, art. 6, § 146.

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 19 replaced Miss.Sup.Ct.R. 19. 644-647

So.2d LIII-LIV (West Miss.Cases 1994).

Effective July 1, 1994, the Comment to Miss.Sup.Ct.R. 19 was amended to delete

references to repealed statutes and material concerning the transition from statutory

procedures to Rule practice, and to effect attendant technical changes. 632-635 So.2d LI-LII

(West Miss.Cases 1994).

Comment

Legislative authority to provide for direct appeals to the Supreme Court from certain

decisions of the Mississippi Public Service Commission was established by amendment to

§ 146 of the Mississippi Constitution of 1890. That amendment was ratified by the electorate

on November 8, 1983, and was inserted as a part of the Constitution on January 3, 1984.

Pursuant to the authority granted by § 146, the legislature enacted Miss. Code Ann. § 77-3-72

(1991) which establishes procedures for such direct appeals.

Under § 77-3-72, final orders in any utility rate proceeding involving a filing for a rate

change are appealed by filing an "appeal" comparable to the Rule 3 notice of appeal. The

"appeal," however, is filed with the clerk of the Supreme Court, not with the Commission,

and it must "state briefly the nature of the proceedings before the commission, and shall

specify the order complained of." Miss. Code Ann. § 77-3-72(1) (1991). The appeal is on

the entire record unless the parties stipulate to the contrary. Miss. Code Ann. § 77-3-72(2)

(1991). The statutes do not require a cost estimate or prepayment of costs. The appealing

party must, however, pay the fees required by the clerk of the Supreme Court under Miss.

Code Ann. § 25-7-3 (1991). The statutes provide for collection of rates under bond in certain

cases. Miss. Code Ann. § 77-3-72(3), (4) (1991).

Where the statute is silent, these rules govern the appeal. Applicable rules in rate

appeals include rules concerning dismissal for failure to prosecute and other sanctions, Rule

2; designation, correction, and preparation of the record, Rule 10 and Rule 11; writs of

mandamus and other extraordinary writs, Rule 21(c); filing and service, Rule 25;

computation and extension of time, Rule 26; motions, Rule 27; brief and record excerpts,

Rules 28-32; and other rules generally applicable to civil cases, Rules 33-38, 40-47.

Appeals from Commission decisions in other cases are to the chancery court of the

judicial district in which the principal place of business of the utility in the State of

Mississippi is located, Miss. Code Ann. § 77-3-67(1) (1991), or to the circuit court of the first

judicial district of Hinds County, Miss. Code Ann. § 77-1-45 (1991). Appeals from the

chancery court to the Supreme Court are governed by these rules and the bond provisions of

Miss. Code Ann. § 77-3-71 (1991). Appeals from the circuit court to the Supreme Court are

governed by these rules and the bond provisions of Miss. Code Ann. § 77-1-47 (1991).

CERTIFIED QUESTIONS FROM FEDERAL COURTS

RULE 20. CERTIFIED QUESTIONS FROM FEDERAL COURTS

(a) When Certified. When it shall appear to the Supreme Court of the United States

or to any United States Court of Appeals that there may be involved in any proceeding before

it questions or propositions of law of this state which are determinative of all or part of that

cause and there are no clear controlling precedents in the decisions of the Mississippi

Supreme Court, the federal court may certify such questions or propositions of law of this

state to the Mississippi Supreme Court for rendition of a written opinion concerning such

questions or propositions of Mississippi law. The Supreme Court may, in its discretion,

decline to answer the questions certified to it.

(b) Method of Invoking Rule. The provision of this rule may be invoked by the

federal court upon its own motion or the suggestion or motion of any interested party when

approved by the federal court.

(c) Contents of Certificate. The certificate shall contain the style of the case, a

statement of facts showing the nature of the cause and the circumstances out of which the

questions or propositions of law arise, and the question of law to be answered.

(d) Preparation of Certificate. The certificate shall be certified to the Supreme Court

by the clerk of the federal court and under its official seal. The Supreme Court may, in its

discretion, require the original or copies of all or any portion of the record before the federal

court to be filed with said certificate where, in its opinion, such record may be necessary in

the determination of the certified question.

(e) Costs. The costs of the proceedings shall be equally divided between the parties

unless otherwise ordered by the Supreme Court.

(f) Briefs and Argument. The appellant or petitioner in the federal court shall submit

the initial brief on the question certified. All briefs, arguments, and other proceedings shall

be conducted according to these Rules. For the purposes of Rule 28, additional briefing will

be upon directive of the Supreme Court.

[Adopted governing matters filed on or after January 1, 1995; amended effective June 27,

2002.]

Advisory Committee Historical Note

Effective June 27, 2002, Rule 20(f) was amended to provide that briefing in addition

to the initial brief will be on the directive of the Supreme Court. 819-822 So.2d XVIII (West

Miss.Cases 2002).

Effective January 1, 1995, Miss.R.App.P. 20 replaced Miss.Sup.Ct.R. 20. 644-647

So.2d LIV-LV (West Miss.Cases 1994).

Comment

Rule 20 continues the practice of accepting certified questions from federal courts.

Acceptance of a question so certified is discretionary with the Court. The Court reserves the

right to rephrase certified questions, Government Employees Ins. Co. v. Brown, 446 So. 2d

1002, 1006 (Miss. 1984), and has said it will restrict its review under this rule "to the

performance when properly requested of the function of declaring in general terms the

controlling rules" of state law, and not the application of law to fact. Boardman v. United

Services Auto Ass'n, 470 So. 2d 1024, 1031 (Miss. 1985). The practice of the United States

Court of Appeals for the Fifth Circuit in certifying questions is discussed in In Re

McClintock, 558 F. 2d 732, 733 nn. 2-5 (5th Cir. 1977), and J. Brown,

Certification-Federalism in Action, 7 Cumb. L. Rev. 455 (1977) (tracing development of

certification doctrine).

EXTRAORDINARY WRITS AND

COLLATERAL RELIEF

RULE 21. WRITS OF MANDAMUS AND PROHIBITION

DIRECTED TO A JUDGE OR JUDGES AND OTHER

EXTRAORDINARY WRITS

(a) Writs and Process, Supreme Court. The Supreme Court shall issue all writs and

process necessary for the exercise and enforcement of its appellate jurisdiction and may

enforce its mandates by fine and other appropriate sanctions.

(b) Writs and Process, Court of Appeals. The Court of Appeals shall issue writs and

other process necessary for the exercise and enforcement of its jurisdiction, but a writ, order,

or other process in any appeal not transferred to the Court of Appeals by the Supreme Court

shall be of no effect.

(c) Mandamus or Prohibition To a Judge or Judges; Petition for Writ; Service and

Filing. Application for a writ of mandamus or of prohibition directed to a judge or judges

shall be made by filing a petition with the clerk of the Supreme Court with proof of service

on the judge or judges and on all parties to the action in the trial court.

A petition for writ of mandamus, writ of prohibition, or other extraordinary writ shall

not bear the name of the judge or judges, but shall be entitled, In re:

, Petitioner. To

the extent that relief is requested of a particular judge, unless otherwise ordered, the judge

shall be represented pro forma by counsel for the party opposing the relief, who shall appear

in the name of the party and not that of the judge, except that where the petition relates to a

criminal case, the judge shall not be represented by the District Attorney's office but shall

either represent himself/herself or be represented by the office of the Attorney General and/or

private counsel retained by the judge. The petition shall contain a statement of the facts

necessary to an understanding of the issues presented by the application and why it was

denied by the trial court; a statement of the issues presented and of the relief sought; a

statement of the reasons why the writ should issue; and certified copies of any order or

opinion or parts of the record which may be essential to an understanding of the matters set

forth in the petition. Upon receipt of the prescribed docket fee, the clerk of the Supreme

Court shall docket the petition and submit it to the appellate court to which the case has been

assigned.

(d) Denial; Notice Directing Answer. If the appellate court is of the opinion that the

writ should not be granted, it will deny the petition without requesting an answer. Otherwise,

the clerk of the Supreme Court will issue notice that an answer to the petition be filed by the

respondents within the time fixed by the notice. The notice shall be served by the clerk on

the judge or judges and on all other parties to the action in the trial court. All parties below,

other than the petitioner, shall also be deemed respondents for all purposes. Two or more

respondents may answer jointly. The clerk shall advise the parties of the dates on which

briefs are to be filed, if briefs are required, and of the date of oral argument. The proceeding

shall be given preference over ordinary civil cases. The Supreme Court also may, in its

discretion, treat the petition as a petition for permission to appeal under Rule 5 and order

such further proceedings as the Court deems appropriate.

(e) Other Extraordinary Writs. Application for extraordinary writs other than those

provided for in subdivisions (c) and (d) of this rule shall be made by petition filed with the

clerk of the Supreme Court with proof of service on the parties named as respondents.

Proceedings on such application shall conform, so far as is practicable, to the procedure

prescribed in subdivisions (c) and (d) of this rule.

(f) Form of Papers; Number of Copies. All papers shall be typewritten or printed.

Four (4) copies shall be filed with the original, but the court may direct that additional copies

be furnished.

[Amended effective January 1, 1999]

Advisory Committee Historical Note

Effective January 1, 1999, Rule 21(d) was amended to effect technical changes. 717722 So.2d XXVII (West Miss.Cases 1998).

Effective January 1, 1995, Miss.R.App.P. 21 replaced Miss.Sup.Ct.R. 21 and added new

subsections (a) and (b), embracing proceedings in the Court of Appeals. 644-647 So.2d LVLVII (West Miss.Cases 1994).

Comment

Rule 21 applies to all requests for remedial writs under Miss. Code Ann. § 9-1-19

(Supp. 1994). The rule was originally modeled on Fed. R. App. P. 21 as modified by 5th Cir.

R. 21. With the exception of the writ of mandamus required by Rule 15, a party must seek

relief in the trial court before obtaining the extraordinary relief of a remedial writ from the

Supreme Court. The rule preserves the Mississippi requirement that papers attached to a

petition must be certified. It does not require, however, that the petition be under oath.

Petitions will be considered by a panel of the appropriate court rather than by a single justice

or judge. In emergency circumstances in which panel consideration would be impractical

due to requirements of time, however, a single justice or judge may hear the petition and

issue a temporary stay pursuant to Rule 8. A single justice's or judge's decision not to grant

a stay may be reviewed by the appropriate court.

The Supreme Court, under Rule 21(b), retains the discretion to treat the petition as a

petition for permission to appeal under Rule 5 and to instruct the parties to proceed under that

rule. See In re Brown, 478 So. 2d 1033 (Miss. 1985) (application for writ treated as

emergency appeal).

RULE 22. APPLICATION FOR POST-CONVICTION COLLATERAL RELIEF

IN CRIMINAL CASES

(a) Filing of Applications. Applications for post-conviction collateral relief in

criminal cases are governed by Miss. Code Ann. § 99-39-1, et seq. (Suppl. 1994) and this

Rule 22. If any application fails to comply substantially with the statute, the clerk of the

Supreme Court shall give written notice of the default, apprising the party of the nature of

the deficiency. If the deficiencies are not corrected within thirty days, the application may

be dismissed. Successive applications for post-conviction relief which do not clearly

demonstrate an exception to the successive writ bar of Miss. Code Ann. § 99-39-27(9) may

subject the filer to sanctions.

(b) Post-conviction issues raised on direct appeal. Issues which may be raised in

post-conviction proceedings may also be raised on direct appeal if such issues are based on

facts fully apparent from the record. Where the appellant is represented by counsel who did

not represent the appellant at trial, the failure to raise such issues on direct appeal shall

constitute a waiver barring consideration of the issues in post-conviction proceedings.

(c) Post-conviction Proceedings Filed by Persons Under Sentence of Death.

Proceedings on post-conviction applications and motions filed by persons under sentence of

death shall be governed by this rule. This sub-part (c) shall apply only to such proceedings

filed by persons under sentence of death.

(1) Representation by counsel.

(i) The petitioner shall be represented by qualified counsel

unless the petitioner has elected to proceed pro se, and the convicting

court finds, after a hearing on the record, that the petitioner's election

is informed and voluntary.

(ii) Where a petitioner is sentenced to death the Supreme Court

shall, immediately after the announcement of the decision on direct

appeal, order that the convicting court determine whether the

petitioner is indigent and, if so, whether the petitioner desires

appointment of counsel for the purpose of post-conviction

proceedings. Such order shall be forwarded to the convicting court

and the Office of Capital Post-Conviction Counsel upon entry. The

Office of Capital Post-Conviction Counsel shall advise the convicting

court of the attorney selected to represent the petitioner pursuant to

Section 99-39-23 and these rules.

(iii) Should it be determined upon hearing in the convicting

court that the petitioner has retained qualified private counsel, the

attorney selected by the Office of Capital Post-Conviction Counsel

shall take no further action and shall be discharged. Should it be

determined that the petitioner elects to proceed pro se, the attorney

selected by the Office of Post Conviction Counsel shall continue to

serve, but only as counselor and advisor to the petitioner.

(2) Proceedings pro se.

(i) The petitioner shall be allowed to proceed pro se only upon

findings of the convicting court that the petitioner has made an

informed and voluntary election to so proceed under the provisions of

subpart (1)(i) above. Such an election shall be deemed informed and

voluntary only when the petitioner has been advised of the complexity

of post-conviction proceedings and the limitations upon issues which

may be raised. The court shall advise the petitioner that:

the stringent filing and other deadlines attendant to postconviction proceedings will not be relaxed for pro se

litigants,

ignorance of the law or procedures will not be accepted as an

excuse for failure to proceed in accordance with law,

grounds for post-conviction relief, including intervening

decisions, are often technical and require knowledge of and

skill in the law,

investigation, including discovery and the gathering of

evidence can be best pursued by counsel, and incarceration

of the petitioner will not be accepted as an excuse for failure

to conduct such investigation and gather such evidence,

the court will not relax or disregard the rules of evidence,

procedure, or courtroom protocol for the pro se petitioner,

and without legal counsel the petitioner's ability to proceed

effectively will be hampered, and

a decision to proceed pro se in post-conviction matters

usually increases the likelihood of an outcome unfavorable

to the petitioner.

(ii)In the event that expenses for litigation are allowed a postconviction petitioner, they shall be disbursed through the attorney

serving as advisor and counselor.

(iii) When the petitioner is proceeding pro se, access to trial and

appellate files, prosecution and law enforcement files and the delivery

of discovery materials shall be upon such conditions and subject to

such restrictions as the conviction court may deem necessary to

preserve the integrity and security of the files and materials.

(iv) When the petitioner is proceeding pro se, and the application

for leave to file a motion for post-conviction relief is denied, or if the

application is granted, relief is denied in the convicting court and such

denial is affirmed in the Supreme Court, the attorney appointed as

advisor and counselor shall seek appointment of federal habeas

corpus counsel in accordance with the provisions of subpart (9)

below.

(3) Compensation of appointed counsel and expenses of litigation.

Compensation for attorneys appointed under this section and

expenses of litigation shall be governed by Miss. Code Ann. § 99-1518. Prior to the approval of expenses for litigation, the petitioner

shall present to the convicting court, with notice to the Attorney

General and an opportunity for the Attorney General to be heard, a

request estimating the amount of such expenses as will be necessary

and appropriate in the matter, and the court will determine and allow

such expenses as are justified upon hearing of the request for

expenses. In requesting such expenses, the petitioner shall make a

preliminary showing that such expenses are necessary to the

presentation of his case and that they relate to positions which may

reasonably be expected to be beneficial. To the extent that the court

may find that the disclosure of identity of experts or other factual

matters may hinder a fair preparation of the petitioner's case, the

disclosure thereof may be presented in camera without disclosure to

the State. All orders initially allowing litigation expenses shall be

subject to review and reconsideration from time to time as the court

may find necessary, and payment under such order will be approved

only upon the submission of specific detailed invoices and review by

the court. Should the court find that such invoices contain

information which if disclosed to the State would unfairly disclose

information detrimental to the petitioner's fair presentation of his

case, the court shall consider those portions in camera without

disclosure to the State.

(4) Further matters preliminary to proceedings in the Supreme Court

(i) An application for post-conviction relief shall not be filed

until proceedings on rehearing of the affirmance of the conviction and

sentence are final. However, not later than sixty (60) days following

the appointment of post-conviction counsel, or the determination that

the petitioner is represented by qualified private counsel, or elects to

proceed pro se, counsel or the pro se petitioner shall examine the

record and preliminarily investigate the case and shall file with this

Court a statement that having done so, counsel or the pro se petitioner

either finds no issues with potential post-conviction merit or finds that

there are issues which are believed to be meritorious. In the event

that counsel or the pro se petitioner files a statement indicating that

post-conviction review is deemed to be meritorious and that counsel

or the pro se petitioner intends to file an application for postconviction review, execution of the sentence shall be stayed until

disposition of post-conviction proceedings.

(ii) Upon appointment of counsel, or the determination that the

petitioner is represented by private counsel the petitioner's prior trial

and appellate counsel shall make available to the petitioner's postconviction counsel their complete files relating to the conviction and

sentence. The State, to the extent allowed by law, shall make

available to post-conviction counsel the complete files of all law

enforcement and prosecutorial agencies involved in the investigation

of the crimes committed and the prosecution of the petitioner. If the

State has a reasonable belief that allowing inspection of any portion

of the files by post-conviction counsel for the petitioner would not be

in the interest of justice, the State may submit for inspection by the

convicting court those portions of the files so identified. If upon

examination of the files, the court finds that such portions of the files

could not assist the capital petitioner in investigating, preparing, or

presenting a motion for post-conviction relief, the court in its

discretion may allow the State to withhold that portion of the files.

Discovery and compulsory process may be allowed the petitioner

from and after the appointment of post-conviction counsel or the

determination that the petitioner is represented by private counselor

or is proceeding pro se, but only upon motion indicating the purpose

of such discovery and that such discovery is not frivolous and is

likely to be helpful in the investigation, preparation or presentation of

specific issues which the petitioner in good faith believes to be in

question and proper for post-conviction relief, and order entered in

the sound discretion of the court. Upon determination that the

petitioner has elected to proceed pro se, such files and discovery shall

be made available as provided in subsection (2)(iii) above.

(5) Proceedings in the Supreme Court on Application for Leave to Seek Relief in

the Convicting Court.

(i) An application for leave to file a motion for post-conviction

relief shall be filed in the Supreme Court not later than one hundred

eighty (180) days after counsel is appointed or sixty (60) days

following denial of rehearing on the direct appeal of the conviction

and sentence, whichever is later. An application which is filed after

such date is presumed untimely unless the petitioner establishes good

cause by showing particularized justifying circumstances. Absent

extraordinary circumstances, a petitioner may not establish good

cause for untimely filing of an application filed later than ninety-one

(91) days after the filing due date hereunder. The failure to file an

application within the time allowed hereunder constitutes a waiver of

all grounds for relief, excepting from such waiver only those matters

which are excepting from res judicata or successive writ bar identified

in section 99-39-27(9).

(ii) The State shall file a response to the application for leave to

file a motion for post-conviction relief not later than thirty (30) days

following the date the State receives notice of filing of the

application.

The State may request additional time upon

particularized justifying circumstances. The petitioner may file a

rebuttal to the State's response within fifteen (15) days following the

date the petitioner receives notice of filing of the response. The

petitioner may request additional time for rebuttal upon particularized

justifying circumstances.

(6) Proceedings in the Convicting Court

In the event that the application is granted, the Supreme Court shall issue

such scheduling orders as it deems appropriate and shall during proceedings in the

convicting court monitor such proceedings in order to assure compliance with

filing and decision periods established in this section or by order. Such

scheduling orders shall require (1) the filing of the motion for post-conviction

relief within thirty (30) days following the entry of the order, and, if an evidentiary

hearing is to be granted, such hearing to be conducted not more than one hundred

eighty (180) days following the filing of the motion for post-conviction relief.

The scheduling order shall, in any event, require disposition of all proceedings in

the convicting court within two hundred seventy (270) days following the filing

of the motion for post-conviction relief. The preparation of the transcript and

record of proceedings shall take precedence over all other duties of the court

reporter assigned to the post-conviction proceedings in the convicting court, and

in any event, such record shall be transcribed within thirty (30) days following the

conclusion of such proceedings unless additional time shall be allowed by the

Supreme Court.

(7) To the extent that the procedures set out in this rule may conflict with any

other rule of procedure or practice, the procedures set out herein shall control in

post-conviction proceedings on behalf of petitioners under a sentence of death.

(8) Appeals from the judgments entered under this rule shall proceed as in other

appeals from post-conviction decisions of the convicting courts and in accordance

with rules established by the Supreme Court.

(9) If after an application for leave to file a motion for post-conviction relief is

filed, the petitioner is denied post-conviction relief in this Court, or is denied such

relief in the convicting court after grant of an application for leave to file for postconviction relief in the convicting court and the Supreme Court affirms such

denial by the trial court, an attorney, whether appointed under this section or

privately retained, shall not later than fifteen (15) days after such denial becomes

final in the Supreme Court, move to be appointed as counsel in federal habeas

review under 21 U.S.C. Section 848(q) or equivalent provision or, if necessary,

move for the appointment of other counsel under 21 U.S.C. Section 848(q) or

equivalent provision.

(d) Standards and Qualifications for Attorneys Appointed to Represent Those

Under Sentence of Death in Post-conviction Proceedings. At least one (1) attorney

representing those under a sentence of death seeking post-conviction relief shall have

primary responsibility for and personally appear at proceedings, and shall,

(1) Be admitted to practice law in Mississippi, being a member in good standing

of the Bar for at least five years immediately preceding the appointment, or

admitted pro hac vice pursuant to order entered under M.R.A.P. 46 and being a

member in good standing of that attorney’s home jurisdiction for a like period

immediately preceding the appointment,

(2) Be admitted to practice in the federal courts of Mississippi and before the

United States Court of Appeals for the Fifth Circuit, or, in the case of attorneys

appearing pro hac vice, admitted to the federal district courts and the circuit court

of appeals having jurisdiction in their home areas,

(3) Have practiced for three years, in federal or state court, in at least one of the

following areas:

(a) criminal trials or direct appeals before a court of record, and/or

(b) post-conviction or habeas proceedings.

(4) Have not previously represented the capital petitioner in the case either in the

trial court or in the direct appeal, unless the petitioner and counsel expressly

request continued representation and waive all potential issues that are foreclosed

by continued representation,

(5) Have substantial knowledge and understanding of the relevant state and federal

law, both procedural and substantive, governing capital cases, including

completion of the requisite educational training enumerated in subsection (e), and

(6) Have otherwise demonstrated the necessary proficiency and commitment to

zealous advocacy which exemplify the quality of representation appropriate to

capital cases.

Provided, however, that with the approval of the trial court, an attorney may be appointed

who does not meet the stated qualifications in (1) - (3) upon a showing 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 trial court to conclude that the attorney

has extensive experience in complex cases substantially equivalent to that of a qualified

attorney.

(e) Education and training of attorneys appointed or retained to represent those

under sentence of death in post-conviction proceedings. Effective July 31, 2000, an

attorney serving as post-conviction counsel in a case wherein the petitioner is under a

sentence of death shall have within one year prior to his appointment or employment

successfully completed twelve hours training or educational programs in the area of capital

defense through a program accredited by the Mississippi Commission on Continuing Legal

Education or by the American Bar Association.

[Adopted August 21, 1996; amended June 24, 1999 by order entered that date; amended

effective July 27,2000; amended effective February 10, 2005 to specify that post-conviction

issues are to be raised on direct appeal only when they are apparent on the record; amended

effective May 31, 2007, to provide for sanctions.]

Advisory Committee Historical Note

Effective July 27, 2000, new Rules 22(b) and (c) were adopted with a related reference

in 22(a) and a third paragraph added to the Comment. 761-763 So.2d XVII (West

Miss.Cases 2000).

Effective June 24, 1999, Rule 22(a) was revised regarding deficient applications and

Rules 22(c) and (d) were adopted. 735 So.2d XXIII (West Miss.Cases 1999).

Effective January 1, 1999, Rule 22(a) was amended to provide thirty days after notice

from the clerk to remedy failure to comply substantially with statutory requirements. 717722 So.2d XXVII (West Miss.Cases 1998).

Effective January 1, 1995, Miss.R.App.P. 22 replaced Miss.Sup.Ct.R. 22. 644-647

So.2d LVII (West Miss.Cases 1994).

Comment

Rule 22 incorporates the comprehensive procedure reflected in the Mississippi Uniform

Post-Conviction Collateral Relief Act, codified at Section 99-39-1, et seq. of the Mississippi

Code. Passed in 1984, the Act requires that when a prisoner's conviction and sentence have

been appealed to the Supreme Court, and the appeal is either affirmed or dismissed, the

prisoner is to seek leave from that Court before filing a motion for post-conviction collateral

relief in the trial court, Section 99-39-7. The motion for leave is governed by Section

99-39-27, and the provisions of these rules that are consistent with that statute. See, e.g.,

Rules 25, filing and service; 26, computation and extension of time; 27, motions; 28(h),

length of briefs; 31(c), number of briefs.

Rule 22(b) allows the appellant to raise post-conviction issues on direct appeal where

the issues are fully apparent from the record of the trial, and failure to raise such issues

constitutes a waiver. Under this provision, issues such as claims of ineffective assistance of

counsel for failure to object to evidence offered by the state or to argument by the state must

be raised on direct appeal. Other post-conviction issues which cannot be raised at the time

of appeal because they involve actions or inaction outside the record are not waived since

they cannot practically be raised without further development or investigation.

If leave to proceed in the trial court is granted, and proceedings take place there

pursuant to §§ 99-39-9 to 99-39-23, an appeal from the trial court's decision is governed by

these rules except as otherwise stated in § 99-39-25, which makes specific provision for stays

or bail pending such an appeal. Statutory provisions are subject to the requirements of Miss.

Const. of 1890, art. 3, § 21.

Following the adoption of new legislation in 2000, the rule was further amended to

adopt special procedures governing proceedings on applications for leave to file in the trial

court and motions for post-conviction relief in the cases of parties under sentence of death.

These amendments are designed to implement the legislation, adopted as H.B. 1228 and

signed by the Governor on May 22, 2000, effective on July 1, 2000.

[Adopted to govern matters filed on or after January 1, 1995; amended effective January 1,

1999; June 24, 1999; amended effective July 27, 2000; amended effective February 10, 2005;

amended effective August 2, 2012.]

GENERAL PROVISIONS

RULE 23. CALL AND ORDER OF DOCKET

(a) Civil Cases. Except as may be provided by special order, all civil cases will be

submitted in the order in which they stand on the docket.

(b) Criminal Cases. Criminal cases may be set for call on any day when the Supreme

Court or the Court of Appeals is sitting, and in such numbers as it may designate.

(c) Oral Argument. All cases, civil and criminal, where oral argument is not granted,

will be submitted when they are reached on the docket, without the necessity of the cases

being called and without notice to the lawyers or litigants.

(d) Decisions. The minutes of the Supreme Court shall be signed and announcement

of decisions shall be made on each Thursday when the Court is sitting. The minutes of the

Court of Appeals shall be signed and announcement of decisions shall be made monthly or

more often as the Court of Appeals deems necessary.

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 23 replaced Miss.Sup.Ct.R. 23, embracing

proceedings in the Court of Appeals. 644-647 So.2d LVII-LVIII (West Miss.Cases 1994).

Comment

Rule 23 follows the longstanding practices of the Supreme Court as to the order and call

of the docket. A civil case may be expedited only by special order, while expedition in

hearing a criminal case requires no such order. Normally, upon motion, the Supreme Court

will enter an order expediting a case where preference is granted by statute. The statutes

grant preference in certain civil cases, including quo warranto actions, actions of mandamus

where the public interest is concerned, and cases involving taxes claimed by the state, county

or municipality, Miss. Code Ann. § 11-3-3 (1972); in challenges to removal elections, Miss.

Code Ann. § 25-5-35 (1991); and in appeals from Youth Court, Miss. Code Ann. §

43-21-651 (1972). Also by statute, cases in which the defendant has received a death

sentence are preference cases. Miss. Code Ann. § 9-3-21 (1991). Rule 5(d) authorizes the

Supreme Court to grant a preference in hearing interlocutory appeals and Rule 21 grants a

preference in handling petitions for extraordinary writs. Rule 34 governs practice in granting

and holding oral argument.

RULE 24. [OMITTED]

RULE 25. FILING AND SERVICE

(a) Filing. Papers required or permitted to be filed shall be filed with the clerk of the

Supreme Court and no motion, brief, motion for rehearing or other document, or any copy

shall be sent by an attorney directly to any individual justice except as provided in Rule 8(c).

(1) Electronic Filing. Electronic filing is governed by the Appellate E-Filing

Administrative Procedures.

(2) Conv

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