In Re: Uniform Rules of Circuit and County Courts

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Serial: 140619 IN THE SUPREME COURT OF MISSISSIPPI No. 89-R-99025-SCT IN RE: UNIFORM RULES OF CIRCUIT AND COUNTY COURTS ORDER This matter is before the Court sitting en banc on the motion to amend certain rules of the Uniform Rules of Circuit and County Court filed by the Advisory Committee on Rules. Following a thirty-day period for public comment, pursuant to Rule 27(f) of the Mississippi Rules of Appellate Procedure and, after due consideration, the Court finds that the motion should be granted. IT IS THEREFORE ORDERED that the motion to amend certain rules of the Uniform Rules of Circuit and County Court filed by the Advisory Committee on Rules is hereby granted. Rule 12.02 of the Uniform Rules of Circuit and County Court is amended as set forth in Exhibit A to this order. IT IS FURTHER ORDERED that the Clerk of this Court shall spread this Order upon the minutes of the Court and shall forward a true certified copy hereof to West Publishing Company for publication in the next edition of the Mississippi Rules of Court and in the Southern Reporter, Second Series, (Mississippi Edition). SO ORDERED, this the 19th day of June, 2007. /s/ William L. Waller, Jr. WILLIAM L. WALLER, JR., PRESIDING JUSTICE NOT PARTICIPATING: LAMAR, J. EXHIBIT A Rule 12.02 APPEALS FROM JUSTICE OR MUNICIPAL COURT A. Notice and Filing: 1. Mandatory Bonds or Cash Deposits. Any person adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court by filing simultaneously a written notice of appeal, and both a cost bond and an appearance bond (or cash deposit) as provided herein within 30 days of such judgment with the clerk of the circuit court having jurisdiction. This written notice of appeal and posting of the cost bond and the appearance bond or cash deposit perfects the appeal. The failure to post any bond or cash deposit required by this rule shall be grounds for the court, on its own motion or by motion of another, to dismiss the appeal with prejudice and with costs. The clerk of the court shall not accept, file and docket the written notice of appeal without the accompanying cost bond and appearance bond or cash deposit, unless the court has allowed the defendant to proceed in forma pauperis. After the filing of the written notice of appeal and the cost bond and the appearance bond or cash deposit, all further correspondence concerning the case by parties of either side shall be mailed directly to the circuit clerk for inclusion in the file. 2. Contents of Notice of Appeal. The written notice of appeal shall specify the party or parties taking the appeal; shall specify the current residence address and the current mailing address, if different, of each party taking the appeal; shall designate the judgment or order from which the appeal is taken; shall be addressed to county or circuit court, whichever appropriate; and shall state that the appeal is taken for a trial de novo. Upon a failure of the defendant to comply with the requirement of this rule as to content of the written notice of appeal, the court, in its discretion, may order the notice amended or the case dismissed with prejudice and with costs. If the defendant fails to amend the notice as required by the court, the court shall dismiss the appeal with prejudice and with costs. 3. Record. The circuit clerk, upon receiving written notice of appeal, shall notify the appropriate prosecuting attorney, or if none, the lower court and the appropriate prosecuting attorney. It shall be the duty of the judge from whose judgment the appeal is taken to deliver to the clerk of the circuit court, within 10 days after the appeal filing of the appearance bond and the cost bond or cash deposit, as required herein, are given and approved, a certified copy of the record in the case with all the original papers in the case. The judge of the lower court may direct the clerk of the lower court to certify and transmit the copy of the record in the case and all the original papers in the case within the time allowed by this rule. 2 B. Bonds. 1. Appearance Bond. Unless excused by the making of an affidavit as specified in § 99-35-7 of the Mississippi Code of 1972, a cash deposit, or bond with sufficient resident sureties (or licensed guaranty companies), to be approved by the circuit clerk, or of cash shall be given and conditioned on appearance before the county or circuit court from day to day and term to term until the appeal is finally determined or dismissed. The amount of such cash deposit or appearance bond shall be determined by the judge of the lower court. If the defendant fails to appear at the time and place set by the court, the court may dismiss the appeal with prejudice and with costs and order forfeiture of the appearance bond or cash deposit. 2. Cost Bond. Unless excused by the making of an affidavit of poverty as specified above, every defendant who appeals under this rule shall post a cash deposit, or bond with sufficient resident sureties (or licensed guaranty companies) to be approved by the circuit clerk, or cash for all estimated court costs, incurred both in the appellate and lower courts (including, but not limited to fees, court costs, and amounts imposed pursuant to statute). The amount of such cash deposit or bond shall be determined by the judge of the lower court payable to the state in an amount of not less than One Hundred Dollars ($100) nor more than One Thousand Twenty-Five Hundred Dollars ($2,500). Upon a bond forfeiture, the costs of lower court shall be recovered after the costs of the appellate court. 3. Time in Custody Credited. All time the defendant is in custody pending an appeal shall be credited against any sentence imposed by the court. C. Proceedings. Upon the filing with the circuit clerk of the notice of appeal and bonds or cash deposits required by this rule, unless excused therefrom with the clerk, the prior judgment of conviction shall be stayed by the higher court upon receipt of the bonds required by this rule or excuse therefore. The appeal shall be a trial de novo. In appeals from justice or municipal court when the maximum possible sentence is six months or less, the case may be tried without a jury at the court’s discretion. The record certified to the court on appeal from the lower court is competent evidence. However, no motions may be allowed which deprive the accused of the right to a trial on the merits. Amendments will be liberally allowed so as to bring the merits of a case fairly to trial. [Amended May 13, 1996; amended November 26, l996; Amended June 28, 2007.] 3

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