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.

ion 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

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

miss 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

mbracing

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)

nted 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).