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

ission, 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

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

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.

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

mitted 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.

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

ases 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

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.