Uniform Criminal Rules of Circuit Court Practice


UNIFORM CRIMINAL RULES OF CIRCUIT

COURT PRACTICE

Adopted August 15, 1979

As Amended Through

December 31, 1992

RULE 1. PRELIMINARY PROCEEDINGS

RULE 1.01 ARREST WITH WARRANT

If it appears from the facts set forth separately in writing in or with the complaint and any supporting affidavits or supplemental sworn testimony, that there is probable cause to believe that an offense has been committed and that the defendant committed it, a warrant for the arrest of the defendant shall be issued to any person authorized by law to execute it.

The warrant shall be issued by such judge, judicial officer or justice court judge as may be authorized by law to issue criminal process upon the offense charged in the complaint or indictment.

An arrest warrant, when issued shall:

(1) Be in writing and in the name of the State of Mississippi;

(2) Set forth substantially the nature of the offense;

(3) Command that the person against whom the complaint was made be arrested and brought before a magistrate forthwith;

(4) Specify the name of the person to be arrested or, if his name is unknown to the magistrate, designate such person by any name or description by which he can be identified with reasonable certainty;

(5) State the date issued and the county where issued;

(6) Be signed by the magistrate with title of his office; and

(7) In all offenses bailable as of right be endorsed with the amount of bail and the return date.

No arrest shall be dismissed nor shall any person in custody be discharged because of any defect as to form in the warrant; but, the warrant may be amended by the magistrate to remedy such defect.

RULE 1.02 ARREST WITHOUT A WARRANT

An officer may arrest any person without a warrant under the following circumstances:

(1) For an indictable offense or breach of the peace, including those threatened or attempted, committed in the presence of an officer;

(2) Where there is a warrant in existence for a misdemeanant, and the officer has personal knowledge of the warrant;

(3) When the officer has reasonable grounds to believe a felony has been committed and the person proposed to be arrested committed it.

In all cases of arrest without a warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested in pursuit and upon completion of the arrest the person or persons arrested should be taken forthwith before a magistrate.

[Amended October 26, 1982.]

RULE 1.03 MIRANDA WARNINGS

(1) Prior to any questioning, a person must be warned that: (1) He has the right to remain silent;

(2) Any statement he does make may be used as evidence against him;

(3) He has the right to the presence of an attorney;

(4) If he cannot afford an attorney, the court will appoint one for him;

(5) He may request that the questioning cease at any time; and

(6) He may waive any of these rights.

These warnings must be made after the person is placed under arrest or physically detained prior to questioning.

The Miranda warnings should be given prior to any subsequent interrogation session with the person in custody even though the warnings were given in the prior interrogations.

RULE 1.04 INITIAL APPEARANCE

Every arrested person shall be taken before a judicial officer without unnecessary delay.

Upon the defendant's initial appearance, the judicial officer shall ascertain the defendant's true name and address, and amend the formal charge if necessary to reflect this information. The defendant shall be informed of the charges against him and provided with a copy of the complaint. The judicial officer shall also advise the defendant of the following:

(1) That the defendant is not required to speak and that any statements he makes may be used against him;

(2) If the defendant is unrepresented, that he has the right to assistance of counsel, and that if he is unable to afford counsel, an attorney will be appointed to represent him;

(3) That the defendant has the right to communicate with counsel, family or friends, and that reasonable means will be provided to enable him to do so.

The judicial officer shall inform the defendant of his right to a preliminary hearing, and a date for such hearing shall be set within a reasonable time. The preliminary hearing shall be heard on the set date, unless it is waived in writing or in open court and upon the advice of counsel. If preliminary hearing is waived by the defendant, the judicial officer shall bind the defendant over to the next grand jury.

Conditions under which the defendant may obtain release shall be determined at this time.

[Amended October 26, 1982.]

RULE 1.05 REPRESENTATION BY COUNSEL

When any person shall be charged with a felony, misdemeanor punishable by confinement, or commission of an act of delinquency, or upon the request of the defendant, the court or the judge in vacation, being satisfied that such person is an indigent person and is unable to employ counsel, may, in the discretion of the court, appoint counsel to defend him.

An inquiry to determine financial eligibility of a defendant for the appointment of counsel shall be made whenever possible prior to the initial court appearance and by such persons as the court may direct.

The ability to pay part of the cost of adequate representation at any time while the charges are pending against a defendant shall not preclude the appointment of counsel for the defendant. The court may require a defendant, to the extent of his ability, to compensate the government unit charged with paying the expense of appointed counsel.

Counsel shall be appointed no later than the time of initial appearance, and once appointed, counsel shall continue to represent the defendant until permitted to withdraw by proper order of the court.

Such appointed counsel shall have free access to the defendant who shall have process to compel the attendance of witnesses in his favor.

The defendant shall have such representation available at every critical stage of the proceeding against him where a substantial right may be affected.

RULE 1.06 BAIL BONDS

Excessive bail shall not be required, and all persons shall, before conviction, be, in the discretion of the trial judge, bailable as provided in this rule except for offenses punishable by death when the proof is evident or presumption great.

In cases involving murder, manslaughter, rape, armed robbery, or sale of controlled substances where the amount of sale involves an amount in excess of $500.00, bail may be taken in the following form:

State of Mississippi )

County of ______________ )

We _____, principal, and _____ and _____, sureties, agree to pay the State of Mississippi _____ dollars, unless _____, principal, shall appear at the next term of the Circuit Court of _____ County, and there remain from day to day and term to term until discharged by the trial court or the Supreme Court of Mississippi, to answer a charge of _____.

Signed: ________________________________

________________________________

Approved _____

All other persons permitted to make bond may make a cash bail bond provided the following requirements are met:

(1) The accused must never have been convicted of a felony, been charged with escape, or had an order nisi entered on a previous bond;

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

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

(4) The accused must tender to the clerk of the court ten percent (10%) of the amount of the bond as set, in cash, or $250.00 in cash, whichever is the greater;

(5) The accused must sign an appearance bond guaranteeing his appearance and binding himself unto the State of Mississippi in the full amount of the bond heretofore set to be used in the case of default;

(6) The accused shall by affidavit duly made and witnessed by two witnesses in addition to the person authorized to administer oaths, swear in substantially the following form:

State of Mississippi )

County of ________________ )

Personally appeared before me, the undersigned authority in and for said county and state, _____, who by me being first duly sworn, on oath deposeth and states as follows:

(a) I have never been convicted of a felony. I have never been charged with escape. I have had no order nisi entered on a bail bond executed by me.

(b) The proper authority has set the sum of $ _____ as the amount of bail bond to be executed by me. This bond was set by _____.

(c) A return date has been set for this bond. Its return date is _____ and was set by _____.

(d) The undersigned accused has tendered to the clerk of the Circuit Court of _____ County, Mississippi, ten percent of the amount of said bond in cash, which sum is not less than $250.00. Said cash is the property of the undersigned accused and the undersigned accused authorizes the clerk of said court to dispose of the same as follows:

If the bond should be forfeited the cash tendered shall be paid by the clerk, less a fee of not more than $10.00, to the county as any other cash bond and the amount so paid shall be credited on the bond forfeited. In the event that the undersigned accused does appear on the return day and a final disposition is made of his case, the amount deposited with the clerk, less a fee of not more than $10.00 to be retained by the clerk, shall be returned jointly to the undersigned accused and his attorney unless the accused has assigned the same to his attorney, in which event said sum shall be paid to the attorney of the undersigned accused.

________________________________________

Defendant

_____________________________

Witness

_____________________________

Witness

Sworn to and subscribed before me, this ______ day of ______, A.D., 19__.

________________________________________

Notary Public

(7) The accused binds himself in the bond to report to the clerk of the court by telephone and in writing on the first Monday of each month as to his current address and telephone number, failing in which the bond shall be in default.

(8) One or more of the above requirements may be waived in the discretion of the trial judge.

The sheriff, upon proof that all of the foregoing conditions have been complied with, shall approve the written bond and return it to the clerk of the respective county as prescribed by law, and in the event that the accused does appear on the return day and a final disposition is made of his case, the amount deposited with the clerk, less a fee of not more than $10.00 to be retained by the clerk, shall be returned jointly to the accused and his attorney unless the accused has assigned the same to his attorney, in which event said sum shall be paid to the attorney of the accused.

No officer of the court shall sign any bond, either from the lower courts to the circuit court, or from the circuit court to the supreme court of the state. All bonds when executed shall be delivered promptly by the sheriff, or other officer granting such bond, to the circuit clerk. The circuit clerk shall file and keep these bonds separately in a safe place where they can be safely kept for presentation at the trial of said cause.

[Amended October 26, 1982.]

RULE 1.07 PRELIMINARY HEARING

The preliminary hearing shall be heard by a judicial officer on the date set for such hearing at the defendant's initial appearance. Such process as is necessary to secure the attendance of witnesses within the state shall be issued by the judicial officer. Either party may request that the rule for sequestering the witnesses be invoked.

The defendant shall not be required to enter a plea at the preliminary hearing.

Witnesses produced at the preliminary hearing shall be examined on oath, and in the presence of the defendant, concerning the charged offense. The defendant may cross-examine the witnesses against him, and offer evidence in his own behalf. If the defendant elects to testify personally, he shall be warned in advance of taking the stand that anything he might say can be used against him at a subsequent trial. The state may cross-examine the defendant and any other witnesses who are offered in his behalf.

If from the evidence it appears that there is probable cause to believe that an offense has been committed, and that the defendant committed it, the judicial officer shall bind the defendant over to the next grand jury. If from the evidence it appears that there is no probable cause to believe that an offense has been committed or that the defendant committed it, the defendant shall be discharged from custody. The discharge of the defendant shall not preclude the state from instituting a subsequent prosecution for the same offense.

RULE 2. INDICTMENT SAMPLE

RULE 2.01 CHARGE TO THE GRAND JURY

You have been summoned and sworn this morning as a grand juror of the Circuit Court for the _____ Judicial Circuit for _____ County, for the _____ Term of Court. As members of the _____ County Grand Jury, you are a part of the judicial branch of state government, an arm of this circuit court. The law of this state provides that grand juries are empaneled and charged concerning their duties only by the circuit judge. In compliance with this law, the court, before you begin your work, instructs you concerning your duties as members of the grand jury. It is mandatory that you follow these instructions and should you deem, during your service, need of additional instructions, you should present this request to the court. The law of this state specifies the express powers of grand juries. The grand jury has the power of indictment or presentment in a crime and the additional authority to issue reports in four statutory instances:

(1) With respect to the status of forest protection in the county

(Section 13-5-47(7));

(2) With respect to inspection of the county jail, its condition, sufficiency for the safekeeping of prisoners and their accommodation and health (Section 13-5-55);

(3) With respect to inspection of the papers, records, accounts and books of all county officers (Section 13-5-57); and

(4) With respect to inspection of the books, reports and settlements of the tax collector (Section 13-5-59).

The grand jury is an ancient and honored institution. Its existence is firmly embedded in the system of Anglo-Saxon justice which we inherited. It is guaranteed in the constitution, which provides that no person may be placed on trial for a felony unless he has been indicted by a grand jury. This provision stands as a barrier against unjust prosecution by persons in authority. The grand jury is the means, not only of bringing to trial persons accused of crime, but also to protect persons from unfounded accusations whether presented by legal officers or by others who may be motivated by public clamor or private malice.

The oath which you have taken contains essential principles which govern you in your deliberations. The oath is your promise that you will keep secret what takes place in the grand jury room. A grand juror, except when called as a witness in court, shall not discuss any proceedings or action in relation to offenses brought before it for six months after the adjournment of the court in which he was a grand juror. A grand jury shall not discuss the name or testimony of any witness who has testified before them. Any disclosure of secrets is punishable by fine or imprisonment for contempt of court.

The purpose of this requirement is two-fold:

(1) Accusations may be brought before you which you find unfounded. If publicity were given to the fact that the grand jury investigated a person, his reputation might be ruined even though he be entirely innocent; and

(2) Reason for secrecy is that if anyone charged with a crime learns of your investigation, he is given an opportunity to escape and defeat the process of criminal justice.

This requirement of secrecy demands that you do not communicate to anyone what has been said or done in the grand jury room unless you are ordered by a judge in open court to reveal it. The secrecy of your work is protected by a law which makes it a crime for others to question you about what happened in the grand jury. Any such attempt, by phone, letter or otherwise, should be reported immediately to the court and to the prosecuting attorneys. Your function will be to hear testimony and to determine whether persons suspected of crime should or should not be placed on trial.

No one may be charged with a capital or otherwise infamous crime except upon indictment by a grand jury. Your duty is to allow or to deny issuance of an indictment. There are 18 members on the grand jury and 12 members must agree before you can approve an indictment. The words "true bill" are used to indicate an indictment that you have approved. Each indictment must be signed by the foreman and one of the prosecuting attorneys.

You will hear only one side of a case. It is not your duty to decide the guilt or innocence of the accused. It is your duty to determine whether there is sufficient evidence or probable cause to require an accused to stand trial. If the evidence fails to establish a probability of guilt, you must refuse to return a "true bill."

No public purpose would be served by indicting a person when it appears to you that the evidence is not sufficient to sustain a conviction. Unjust or unfounded indictments should not be returned against anyone. On the other hand, it is equally important that indictments be returned against those who upon the evidence appear to be probably guilty of the commission of crime. Anyone you indict shall receive a speedy public trial to determine their guilt or innocence.

You must be fair and just in your deliberations to the best of your ability and understanding. Your oath requires that you do not indict any person through malice, hatred or ill will; nor will you fail to indict any person through fear, favor, regard, reward or hope of reward. You must be guided by an impartial spirit free from personal, social, racial, religious or political bias or feeling.

You are cautioned that rumor and hearsay testimony are unreliable. Also, that no person may be compelled to be a witness against himself. A witness who testifies about his own participation in crime must first be advised in your presence of his constitutional rights by the prosecuting attorneys before you may accept such evidence. You determine what witnesses you will permit to appear and testify before you.

The district attorney and county attorney are by law the representatives of the State of Mississippi in all criminal prosecutions. It is their duty to be present with the grand jury in its room, to present the evidence, to examine the witnesses and to give advice on any matter of law which may be raised. You are entitled to the legal advice of the prosecuting attorneys on matters of law unless you are instructed to the contrary by the court. You are, however, the sole judges of the facts and the prosecuting attorneys may not influence you as to whether an indictment will be approved. After the testimony is taken and you are discussing what action you will take, the prosecuting attorneys will withdraw from your jury room. They are not permitted to be present during your deliberations or when a ballot is taken and they may not influence your decision on any question of fact. You may request the advice and assistance of the attorney general of the state. You are also at liberty at any time to call for further instructions from the court, although the instruction which the prosecuting attorneys give you will usually be sufficient. You are an independent body.

You, as well as the prosecuting attorneys, have the right to require the clerk of this court to issue subpoenas for witnesses to be brought before you to testify. Your foreman shall keep a record of the names of all witnesses sworn before the grand jury. This list of witnesses, certified and signed by the foreman, shall be returned to court.

You should prepare a list of the cases upon which you have refused to return a "true bill" and return that list to the court.

The grand jury has the additional important duty of making investigations on its own initiative, upon which it can thereafter report, as required by law, to the court. Thus, a grand jury may investigate how officials are conducting their public trust, and make investigations as to the proper conduct of public institutions. This gives them the power to inspect such institutions, and if decided, to call before them those in charge of their operations, and other persons who can testify in that regard. If, as a result of such an investigation, it is determined that an improper condition exists, you may recommend a remedy. The grand jury shall have free access at all proper hours to papers, records, accounts and books of all county officers, including written reports of prior grand juries, for all examinations which in its discretion it may see fit to make, and may report to the court in relation thereto. It is not your duty or responsibility to make reports praising performance of public duty by certain or all public officials. This is their duty under the law and their oath of office requires their diligent performance of lawful duties, and any such report by you could serve no purpose other than that of partisan politics.

The law requires that the circuit court shall charge you particularly concerning enforcement of the following laws:

(1) Those against gambling and unlawful handling of intoxicating liquors;

(2) Those relating to gambling with minors and the giving or selling to them tobacco, narcotics, or liquors;

(3) Those providing for the assessment, collection and disbursement of the public revenues, state and county;

(4) Those defining the duties of public officers;

(5) Those relating to the collection and paying over of fines and forfeitures;

(6) Those relating to providing fire escapes in hotels, theaters and other buildings;

(7) The laws against the burning of the woods;

(8) The law in relation to the illegal possession and sale of barbiturate acid and narcotics;

(9) Section 47-1-31, prisoners, records, treatment and condition;

(10) Section 47-1-27, responsibility of custodian of county prisoners;

(11) Section 45-11-1, fire protection and safety;

(12) Schools;

(13) Motels, hotels, lodging houses, public buildings;

(14) Handling of juveniles;

(15) Ambulance service;

(16) Pollution of streams;

(17) Nursing homes;

(18) hospitals;

(19) All such other statutes as the court shall deem proper at any time;

(20) Elections, corrupt practices, Section 23-3-27, et seq.; and

(21) Section 95-5-25 and Section 97-17-13.

"It shall be unlawful for the district attorney or other officer or person to deliver to the grand jury the charge required by this section to be delivered by the judge. . . ."

I want to thank each of you in advance for taking time out of your busy lives to perform this important civil duty. You are making a personal sacrifice, but I believe you will find this experience one of the most interesting in your lives. Furthermore, at the end of your service you will have the satisfaction of having helped render justice among your fellowmen.

RULE 2.02 CONVENING IN VACATION - EFFECT OF INTERVENING TERM

Grand juries may serve both in term time and vacation and any circuit judge may impanel a grand jury in termtime or vacation. A grand jury may be impaneled at a regular term of court.

RULE 2.03 GRAND JURY - NAMING INDIVIDUAL

WITHOUT INDICTING PROHIBITED

A grand jury has the power to indict any person; however the grand jury report should not accuse any person by name of an offense, malfeasance or misfeasance unless an indictment is returned. If accusations are included in a grand jury report, the comments may be expunged upon the petition of the individual(s), or upon motion of the court.

RULE 2.04 GRAND JURY SECRECY

Grand jurors, except when called as a witness in court, shall keep secret the proceedings and actions taken in reference to matters brought before it, for six months after adjournment of the court at which they were grand jurors, and the name and testimony of any witness appearing before the grand jury shall be kept secret. No grand juror, witness, district attorney, clerk, sheriff or other officer of the court shall disclose to any unauthorized person that an indictment is being found or returned into court against a defendant or disclose any action or proceeding in relation to the indictment before the finding of an indictment or within six months thereafter or before defendant is arrested or gives bail or recognizance. District attorneys, county attorneys and any other officer of the court shall not announce to any unauthorized person what the grand jury will consider in its deliberations. If such information is disclosed, the disclosing person may be found in contempt of court punishable by fine or imprisonment.

RULE 2.05 FORM OF THE INDICTMENT

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. Formal or technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:

(1) The name of the accused;

(2) The date on which the indictment was filed in each court;

(3) A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;

(4) The county and judicial district in which the indictment is brought;

(5) The date and if applicable the time, on which the offense was alleged to be committed. Failure to state the correct date shall not render the indictment insufficient;

(6) The signature of the foreman of the grand jury issuing it; and

(7) The words "against the peace and dignity of the state".

RULE 2.06 ADJOURNMENT OF GRAND JURY

The court, in its discretion, may adjourn the grand jury.

RULE 3. FIRST APPEARANCE BEFORE

CIRCUIT COURT

RULE 3.01 ARRAIGNMENT

Arraignment shall be in open court, and shall consist of reading the indictment to the accused, and calling upon him to plead to the charge in the indictment. Prior to arraignment a copy of the indictment shall be served on the defendant. Defendants who are jointly charged may be arraigned separately or jointly within the discretion of the court. If the co-defendant are arraigned at the same time and charged with the same offense, the indictments need be read only once, with stated identification of each defendant. In cases not capital, waiver of the reading of the indictment may be permitted if the defendant is represented by counsel. Arraignment is deemed waived where the defendant proceeds to trial without objection.

RULE 3.02 PERSONAL PRESENCE OF DEFENDANT

The defendant is required to plead personally where he is charged with the commission of a felony and wishes to enter a plea of guilty. The defendant's personal appearance is unnecessary where he is charged with the commission of a misdemeanor.

If the defendant, on arraignment, refuses or neglects to plead, stands mute or pleads evasively, the court will enter a plea of not guilty and will proceed to trial.

If the defendant is released on bail, and does not appear to be arraigned, or as required by his bond, the court in addition to forfeiture of bail shall direct clerk to issue a capias to bring the defendant before the court.

RULE 3.03 PLEAS

A defendant may plead not guilty or guilty, or with the court's permission, nolo contendere.

(1) Entry of Guilty Plea in Vacation. A person who is charged with commission of criminal offense in county or circuit court, and is represented by counsel, may at his own election, appear before the court at any time the judge may fix, and be arraigned and enter plea of guilty to offense charged. Where a plea of guilty is entered, the judge has the authority to impose lawful and proper sentence upon the defendant in vacation, as though the plea was entered and sentence imposed during a regular term of court.

(2) Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced

by fear, violence, deception or improper inducements. A showing that the plea of guilty was voluntary and intelligently made must appear in the record.

(3) Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:

A. That the accused is competent to understand the nature of the charge against him;

B. That the accused understands the nature and consequences of his plea, and the maximum and minimum penalties provided by law;

C. That the accused understands that by pleading guilty he waives his constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, the right against self-incrimination;

D. If the accused is not represented by counsel, that he is aware of his right to counsel at every stage of the proceeding and that one will be appointed to represent him if he is indigent.

(4) Withdrawal of Plea of Guilty. It is within the discretion of the court to permit or deny a motion for the withdrawal of a guilty plea.

(5) Sufficiency of Motion. A motion to withdraw a plea of guilty in order to be sufficient must show good cause.

(6) Inadmissibility of Withdrawn Guilty Plea. The fact that the defendant may have entered a plea of guilty to the offense charged, and later withdrew the plea, may not be used against him in a subsequent trial of the cause.

RULE 3.04 REVIEW OF BOND

At arraignment, the circuit court judge shall review the amount of bond previously set at initial appearance, and within the court's discretion, the bond may be continued until the date of trial.

RULE 4. PRE-TRIAL PROCEDURES

RULE 4.01 PRE-TRIAL PUBLICITY

The defense counsel, prosecuting attorneys, law enforcement officials, clerks, deputy clerks, and other officers of the court, shall not release nor authorize release of any statement for dissemination by any means of public communication any matter concerning:

(1) The prior criminal record of the defendant or his character or reputation;

(2) The existence or contents of any confession, admission or statement given by the defendant, or the refusal or failure of the defendant to make any statement;

(3) The performance on any examinations or tests, or the defendant's refusal or failure to submit to an examination or test;

(4) The identity, testimony, or credibility of prospective witnesses;

(5) The possibility of a plea of guilty to the offense charged, or a lesser offense; and

(6) The defendant's guilt or innocence, or other matters relating to the merits of the case, or the evidence in the case.

RULE 4.02 DOCKET MANAGEMENT

A docket of cases triable shall be prepared by the clerk prior to convening of a court term. Cases set by the judge for hearing will be ready for hearing at the appointed time. All pretrial motions or other pleadings must be brought to the attention of the court at a time designated by the court, but in any event prior to the date set for trial, or will be considered withdrawn.

RULE 4.03 PLEA DISCUSSIONS

The prosecuting attorney is encouraged to discuss and agree on pleas which may be entered by the defendant. Such agreement and discussion must be conducted with defendant's counsel, or if defendant is unrepresented, the discussion and agreement may be conducted with the defendant.

The prosecuting attorney, defendant's counsel, or the defendant acting pro se, may engage in such discussion with a view toward reaching an agreement that upon entering a plea of guilty to the offense charged or to a lesser or related offense, the attorney for the state may do any of the following:

(1) Move for a dismissal of other charges; and

(2) Make a recommendation to the trial court for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court.

Defense counsel shall not conclude any plea bargaining on behalf of his client without his client's full and complete consent, being certain that the decision to plead is made by defendant. Defense counsel shall advise defendant of all pertinent matters bearing on the choice of plea to enter and likely results or alternatives.

Responsibilities of trial judge:

The trial judge shall not participate in any plea discussion. The Court may designate a cut-off date for plea discussions. After a recommended disposition on the plea has been reached, the trial judge may have made known to him the recommendation and the reasons for the recommendation prior to the acceptance of the plea. The court shall require disclosure of the recommendation in open court, with the terms of the recommendation to be placed in the record.

RULE 4.04 SEVERANCE

The granting or refusing of severances of defendants in cases not involving the death penalty shall be in the discretion of the trial judge.

The court may, on motion of the state or defendant, grant a severance of offenses whenever:

(1) If before trial it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense; or

(2) If during trial, upon the consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense.

[Amended October 26, 1982.]

RULE 4.06 JOINDER

Two or more defendants may be charged in the same indictment upon which they are to be tried when:

(1) Each defendant is charged with accountability for each offense charged; or

(2) Each defendant is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy; or

(3) Even if conspiracy is not charged and all defendants are

not charged in each count, but it is alleged that the several offenses charged were part of a common scheme or plan.

RULE 4.06 DISCOVERY

(a) Upon written request by the defendant, the prosecution shall disclose to each defendant or to his or her attorney, and permit him or her to inspect, copy, test, and photograph, without

the necessity of court order, the following which is in the possession, custody, or control of the State, or the existence of

which is known, or by the exercise of due diligence may become known, to the prosecution:

(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved, of each such witness and the substance of any oral statement made by any such witness;

(2) Copy of any written or recorded statement of defendant and the substance of any oral statement made by the defendant;

(3) Copy of the criminal record of the defendant, if proposed to be used to impeach;

(4) Any reports or statements of experts, written, recorded or otherwise preserved, made in connection with the particular case, and the substance of any oral statement made by any such expert;

(5) Exhibit any physical evidence and photographs relevant to the case or which may be offered in evidence; and

(6) Any exculpatory material concerning defendant. Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to defense counsel as justice may require.

(b) The court may deny disclosure authorized by subsection (a) if it finds that there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment, resulting from such disclosure, which outweighs any usefulness of the disclosure to defense counsel.

The following shall not be subject to disclosure:

(1) Work Product. Disclosure shall not be required of legal

research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of legal staff or either of them.

(2) Informants. Disclosure of an informant's identity shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose his or her identity will infringe the constitutional rights of the accused or unless the informant was an eyewitness to the event or events constituting the charge against the defendant.

(c) If the defendant requests discovery under this rule, the

defendant shall, subject to constitutional limitations, promptly disclose to the prosecution and permit it to inspect, copy, test,

and photograph, the following information and material which corresponds to that which the defendant sought and which is in the possession, custody, or control of the defendant or his or her counsel, or the existence of which is known, or by the exercise of due diligence may become known, to the defendant or his or her counsel:

(1) Names and addresses of all witnesses in chief proposed to be offered by the defendant at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved, of each such witness, and the substance of any oral statement made by any such witness;

(2) Exhibit any physical evidence and photographs which may be offered in evidence;

(3) Any reports or statements of experts, written, recorded or otherwise preserved, made in connection with the particular case, and the substance of any oral statement made by any such expert.

(d) Except as is otherwise provided or in cases where the witness would be forced to reveal self-incriminating evidence, neither the counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information, except the accused, to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel's investigation of the case.

(e) If, subsequent to compliance with these rules or orders or requests made pursuant thereto, a party discovers additional material or information which is subject to disclosure, that party shall promptly notify the other party or his or her counsel of the existence of such additional material, and make disclosure of such material. If the additional material or information is discovered during trial, the court shall also be promptly notified.

(f) The attorney receiving materials on discovery is responsible for those materials and shall not distribute them to third parties.

(g)(i) Upon a showing of cause, the court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit his or her counsel to make beneficial use thereof.

(ii) When some parts of certain material are discoverable under these rules, and other parts not discoverable, as much of the material should be disclosed as is consistent with the rules. Material excised pursuant to judicial order shall be sealed and preserved in the records of the court, to be made available to the appellate courts in the event of an appeal.

(iii) In the event there are matters arguably within the scope of a party's discovery request or an order for discovery, and the opposing party is of the opinion that the requesting party is not entitled to discovery of same, the opposing party shall as soon as is reasonably practicable, file with the clerk of the court a written statement describing the nature of the information or the materials at issue as fully as is reasonably possible without disclosure of same and stating the grounds for objection to disclosure. Subject to the limitations otherwise provided in these rules, determinations such as whether the matters requested in discovery are relevant to the case, exculpatory, possible instruments of impeachment, and the like, may be made only by the party requesting or to receive the discovery.

(h) Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a hearing in camera, the entire record of such hearing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.

(i) If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule, request, or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:

(1) Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and

(2) If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court should, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

(3) The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.

The court shall follow the same procedure for violation of discovery by the defense.

(j) In the event of wilful violations of obligations imposed by this rule or any discovery request or order issued thereto, the court may impose upon a party or counsel, or both, such sanctions as may be appropriate.

[Amended October 26, 1982; style change authorized February 3,

1987; amended January 31, 1990.]

RULE 4.07 NOTICE OF ALIBI

Upon the written demand of the prosecuting attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such other time as the court may direct, upon the prosecuting attorney a written notice of his intention to offer a defense of alibi, which notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon which he intends to rely to establish such alibi.

Within 10 days thereafter, but in no event less than 10 days before the trial, unless the court otherwise directs, the prosecuting attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.

If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the information previously furnished, the party shall promptly notify the other party or his attorney of the name and address of such additional witness.

Upon the failure of either to comply with the requirements of this rule, the court may use such sanctions as it deems proper, including:

(1) Granting a continuance;

(2) Limiting further discovery of the party failing to comply;

(3) Finding the attorney failing to comply in contempt; or

(4) Excluding the testimony of the undisclosed witness.

This rule shall not limit the right of the defendant to testify in his own behalf.

For good cause shown, the court may grant an exception to any of the requirements of this rule.

RULE 4.08 INSANITY DEFENSE

(1) Inability to Stand Trial. If before or during trial the court, of its own motion or upon motion of counsel, has reasonable ground to believe that the defendant is insane, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with Miss. Code Ann. 99-13-11 (1972).

If the examination determines that the defendant is sane, the court shall proceed to trial.

If the examination determines that the defendant is insane the court shall commit him or her to the state asylum for the insane. The order of commitment shall require that the defendant be examined and a written report be furnished to the court at that time and every following four months, stating:

(1) Whether there is a substantial probability that the defendant will become mentally competent to stand trial within the foreseeable future and, if so,

(2) Whether progress toward that goal is being made.

The defendant's attorney, as his representative, shall not waive any hearing authorized by this rule. Such representative shall be authorized to consent, on behalf of the defendant, to necessary surgical or medical treatment and procedures.

If at any time during such commitment the proper official at the state asylum for the insane shall consider that the defendant is mentally competent to stand trial, such official shall promptly notify the court of that effect in writing, and place the defendant in the custody of the sheriff. The court shall thereupon conduct a hearing on the mental competency of the defendant.

If at any time during such commitment, the court decides, after a hearing, that the defendant is mentally competent to stand trial, it shall enter its order so finding and declaring the defendant sane, after which the court shall proceed to trial.

If within a reasonable period of time after commitment, there is neither a determination that there is substantial probability that the defendant will become mentally competent to stand trial nor progress toward that goal, the judge shall order that civil proceedings as provided in Miss. Code Ann. 41-21-61 to -107 (1972) be instituted. Defendant shall remain in custody until determination of civil proceedings.

(2) Inability to Commit Criminal Act. If a defendant intends to rely upon the defense of insanity at the time of the alleged crime, he shall, within the time provided for filing pretrial motions or at such later time as the court may direct, serve upon the prosecuting attorney and the clerk of the court a written notice of his intention to offer a defense of insanity. If there is a failure to comply with the requirements of this subsection the court may use such sanctions as it deems proper, including:

(1) Granting a continuance;

(2) Limiting further discovery of the party failing to comply;

(3) Finding the attorney failing to comply in contempt; or

(4) Excluding the testimony of the witness.

The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

Within 10 days thereafter, but in no event less than 10 days before the trial, unless the court otherwise directs, the defendant shall serve upon the prosecuting attorney the names and addresses of the witnesses upon whom he intends to rely to establish the defense of insanity.

If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such time as the court may direct, serve upon the prosecuting attorney and the clerk of the court notice of such intention, with the names and addresses of such expert witnesses upon whom the defendant intends to rely. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

The court may upon motion of the prosecuting attorney require the defendant to be examined by a competent psychiatrist selected by the court. No statement made by the accused in the course of any examination provided for by this rule shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding.

The prosecuting attorney shall serve notice promptly, but in no event less than 10 days prior to trial, upon the defendant stating the names and addresses of any witnesses upon whom the state intends to rely relating to the issue of the defendant's mental condition at the time of the alleged offense or the defendant's mental state required for the offense charged.

If prior to or during trial either party learns of an additional witness whose identity should have been included in the notice under this rule, the party shall promptly notify the other party of the name and address of such additional witness.

Upon the failure of either party to comply with the requirements of this rule, or failure by the defendant to submit to an examination when ordered under this rule, the court may use such sanctions as it deems proper, including:

(1) Granting a continuance;

(2) Limiting further discovery of the party failing to comply;

(3) Finding the attorney failing to comply in contempt; or

(4) Excluding the testimony of the witness.

For good cause shown, the court may grant an exception to the requirements of this rule.

RULE 4.09 OMNIBUS HEARING

An omnibus hearing may be held at request of counsel or on court's own initiative if the defendant, upon arraignment, enters a plea of not guilty. The hearing shall be set at least three days prior to trial; however, the court should allow counsel sufficient time to conduct further investigation, complete discovery and continue plea discussions.

At the omnibus hearing the trial court on its own initiative, and utilizing an appropriate check list form which the court may direct to be signed by counsel, should:

(1) Ensure that rules regarding provision of counsel have been complied with;

(2) Ascertain whether the parties have completed discovery, and if not make orders appropriate to expedite completion;

(3) Ascertain whether there are requests for additional disclosures such as medical and scientific reports or other discretionary disclosures;

(4) Make rulings on any motions, demurrers or other requests then pending and ascertain whether any additional motions, demurrers or requests will be made at the hearing or continued portions thereof;

(5) Ascertain whether there are any procedural or constitutional issues which should be considered;

(6) Upon agreement of counsel, or upon a finding that the trial is likely to be protracted or otherwise unusually complicated, continue the omnibus hearing; and

(7) Upon the accused's request, permit him to change his plea.

All motions, and other requests prior to trial should ordinarily be reserved for and presented at the omnibus hearing unless the court otherwise directs. Failure to raise any error or issue prior to trial constitutes waiver of such error or issue if the party concerned then has the information necessary to raise it. Check list forms should be utilized at the hearing to ensure that all requests, errors and issues are then considered.

Any and all issues should be raised either by counsel or by the court without prior notice and, if appropriate, informally disposed of. If additional discovery, investigation or formal presentation is necessary for a fair and orderly determination of any issue, the omnibus hearing should be continued until all matters raised are properly disposed of.

A verbatim record should be made of all proceedings at the hearing. In addition, at the conclusion of the hearing a summary memorandum may be made indicating disclosures made, rulings and orders of the court, stipulations and other matters determined or pending.

Stipulations by any party shall be binding upon that party at trial unless set aside or modified by the court in the interests of justice. The defendant and his counsel shall sign any stipulation made by the defense.

---------------

APPENDIX A. CHECKLIST FOR ACTION TAKEN AT OMNIBUS HEARING

IN THE CIRCUIT COURT OF ______ COUNTY, ______

State of Mississippi )

v. ) No. ______

_____________________ )

Defendant )

ACTION TAKEN AT OMNIBUS HEARING

A. Discovery by Defendant

(Number circled

shows action taken)

1. The defense states it has obtained full discovery and (or) has inspected the prosecution file, (except)

(If the prosecution has refused discovery of certain materials, defense counsel shall state nature of material

_________________________________________________________________

_________________________________________________________________

2. The prosecution states it has disclosed all evidence in its possession favorable to defendant on the issue of guilt.

3. The defendant requests and moves for --

3(a) Discovery of all oral, written or recorded statements made by defendant to investigating officers or to third parties and in the possession of the prosecution. (Granted) (Denied)

3(b) Discovery of the names of prosecution witnesses and their statements. (Granted) (Denied)

3(c) Inspection of all physical or documentary evidence in state's possession. (Granted) (Denied)

4. Defendant, having had discovery of Items #2 and #3, requests and moves for discovery and inspection of all further or additional information coming into the state's possession as to Items #2 and #3. (Granted) (Denied)

5. The defense requests the following information and the prosecution states --

5(a) The prosecution (will) (will not) rely on prior acts or convictions of a similar nature for proof of knowledge or intent.

5(b) Expert witness (will) (will not) be called:

(1) Name of witness, qualification and subject of testimony and reports (have been) (will be) supplied to the defense.

5(c) Reports or tests of physical or mental examinations in the control of the prosecution (have been) (will be) supplied.

5(d) Reports of scientific tests, experiments or comparisons and other reports of experts in the control of the prosecution, pertaining to this case (have been) (will be) supplied.

5(e) Inspection and/or copying of any books, papers, documents, photographs or tangible objects which the prosecution --

(1) obtained from or belonging to the defendant, or

(2) which will be used at the hearing or trial, (have been) (will be) supplied to defendant.

5(f) Information concerning a prior conviction or persons whom the prosecution intends to call as witnesses at the hearing or trial (has been) (will be) supplied to defendant.

5(g) Prosecution to use prior felony conviction for impeachment of defendant if he testifies.

Date of conviction _____ Offense _____

(1) Court rules it (may) (may not) be used.

(2) Defendant stipulates to prior conviction without production of witnesses or certified copy. (Yes) (No)

5(h) Any information state has, indicating entrapment of the defendant (has been) (will be) supplied.

[Amended October 26, 1982.]

B. Motions Requiring Separate Hearing

The defense moves --

6(a) To suppress physical evidence in state's possession on the ground of

(1) Illegal Search

(2) Illegal Arrest

6(b) Hearing of motions to suppress physical evidence set for

6(c) To suppress admissions or confessions made by defendant on the grounds of

(1) Delay in arraignment

(2) Coercion or unlawful inducement

(3) Violation of the Miranda Rule

(4) Unlawful arrest

(5) Improper use of Line-up (Wade & Gilbert)

(6) Improper use of photographs.

6(d) Hearing to suppress admissions or confessions set for

(1) Date of trial or (2)

Prosecution to State: --

6(e) Proceedings before the grand jury (were) (were not) recorded;

6(f) Transcriptions of the grand jury testimony of the accused, and all persons whom the prosecution intends to call as witnesses at a hearing or trial (have been) (will be) supplied;

6(g) Hearing re supplying transcripts set for ______________

_________________________________________________________________

_________________________________________________________________

6(h) The prosecution to state:

(1) There (was) (was not) an informer (or lookout) involved;

(2) The informer (will) (will not) be called as a witness at the trial;

(3) It has supplied the identity of the informer; (or)

(4) It will claim privilege of non-disclosure;

6(i) The prosecution to state: --

There (has) (has not) been any --

(1) Electronic surveillance of the defendant or his premises;

(2) Leads obtained by electronic surveillance of defendant's person or premises;

(3) All material will be supplied; or

6(j) Hearing on disclosure set for _____.

C. Miscellaneous Motions

The defense moves --

7(a) To dismiss for failure of indictment to state an offense. (Granted) (Denied)

7(b) To dismiss the indictment (or count _____ thereof) on the ground of duplicity. (Granted) (Denied)

7(c) To sever case of defendant _____ and for a separate trial thereon. (Granted) (Denied)

7(d) To sever count _____ of the indictment and for a separate trial thereon. (Granted) (Denied)

7(e) For a Bill of Particulars. (Granted) (Denied)

7(f) To take a deposition of witness for testimonial purposes and not for discovery. (Granted) (Denied)

7(g) To require the prosecution to secure the appearance of witness who is subject to state direction at the trial or hearing. (Granted) (Denied)

7(h) To inquire into the reasonableness of bail. Amount fixed _____. (Affirmed) (Modified to _____).

7(i) Request special venire.

7(j) Other.

D. Discovery By the Prosecution

D.1. Statements by the defense in response to prosecution requests.

8. Competency, Insanity and Diminished Mental Responsibility

8(a) There (is) (is not) any claim of incompetency of defendant to stand trial.

8(b) Defendant (will) (will not) rely on a defense of insanity at the time of offense;

8(c) Defendant (will) (will not) supply the names of his witnesses, both lay and professional, on the above issue;

8(d) Defendant (will) (will not) permit the prosecution to inspect and copy all medical reports under his control or the control of his attorney;

8(e) Defendant (will) (will not) submit to a psychiatric examination by a court-appointed doctor on the issue of his sanity at the time of the alleged offense;

9. Alibi

9(a) Defendant (will) (will not) rely on an alibi;

9(b) Defendant (will) (will not) furnish a list of his alibi

witnesses;

10. Scientific Testing

Defendant (will) (will not) furnish results of scientific tests, experiments or comparisons and the names of persons who conducted the tests.

11. Nature of the Defense

11(a) Defense counsel states the general nature of the defense is --

(1) lack of knowledge of contraband

(2) lack of special intent

(3) diminished mental responsibility

(4) entrapment

(5) general denial. Put prosecution to proof.

11(b) Defense counsel states there (is) (is not) (may be) a probability of a disposition without trial.

11(c) Defendant (will) (will not) waive a jury and ask for a court trial.

11(d) Defendant (may) (will) (will not) testify.

11(e) Defendant (may) (will) (will not) call additional witnesses.

11(f) Character witnesses (may) (will) (will not) be called.

11(g) Defense counsel will supply the prosecution names of additional witnesses for defendant _____ days before trial.

D.2. Rulings on prosecution request and motions.

The defendant is directed by the court, upon timely notice to defense counsel,

12(a) to appear in a lineup

12(b) to speak for voice identification by witnesses

12(c) to be fingerprinted

12(d) to pose for photographs (not involving a reenactment of the crime)

12(e) to try on articles of clothing

12(f) to permit taking of specimens of materials under fingernails

12(g) to permit taking samples of blood, hair and other materials of his body which involve no unreasonable intrusion

12(h) to provide samples of his handwriting

12(i) to submit to a physical external inspection of his body.

E. Stipulations

It is stipulated between the parties:

13(a) That if _____ was called as a witness and sworn he would testify he was the owner of the motor vehicle on the date referred to in the indictment and that on or about that date the motor vehicle disappeared or was stolen; that he never gave the defendant or any other person permission to take the motor vehicle.

13(b) That the official report of the chemist may be received in evidence as proof of the weight and nature of the substance referred to in the indictment.

13(c) That if _____ the official state chemist were called, qualified as an expert and sworn as a witness he would testify that the substance referred to in the indictment has been chemically tested and is ______, contains _____ and the weight is _____.

13(d) That there has been a continuous chain of custody in state agents from the time of the seizure of the contraband to the time of the trial.

13(e) Miscellaneous stipulations: __________________________

_________________________________________________________________

_________________________________________________________________

F. Conclusion-Defense Counsel States

14(a) That defense counsel knows of no problems involving delay in arraignment, the Miranda Rule or illegal search or arrest, or any other constitutional problem except as set forth above.

14(b) That defense counsel has inspected the check list on this Action Taken form, and knows of no other motion, proceeding or request which he decides to press, other than those checked thereon.

Dated: ___________________________________

So Ordered: ______________________________

Judge

Approved:

______________________________

Attorney for the State of

Mississippi

______________________________

Attorney for the Defendant

RULE 4.10 REQUEST FOR SPECIAL VENIRE

When any person charged with a capital crime shall have been arraigned and the plea of not guilty entered, it shall be the duty of the court, upon the request of the accused or the district attorney, to cause to be drawn, in open court, from the jury-box as many names as the judge in his discretion may direct, not to be less than forty.

The request for a special venire will be made at the omnibus hearing or at such other time as the court directs. It will be in the discretion of the court whether to grant or refuse the request if not timely made.

It shall be the duty of the clerk to issue a special venire facias as required by law.

If the special venire be exhausted and a competent jury has not been impaneled from those summoned and in attendance, the court shall proceed to complete the jury from the regular panel and take jurors who may have been summoned for the day, and, if not adequate, the judge in his discretion may direct to complete the jury.

The provisions of this rule are merely discretionary, not mandatory, and any irregularity of the court in the drawing of a special venire shall not be prejudicial where the jury drawn is an impartial one.

RULE 4.11 SUBPOENAS

Requests for subpoenas giving location of witnesses must be filed in writing a reasonable time before trial date. The expense incurred serving or attending any witness subpoenaed but not called to testify may be taxed against the party causing such witness to be subpoenaed.

RULE 5. TRIAL

RULE 5.01 COURTROOM DECORUM

Every person whose presence is required for the conduct of the business of the court shall be prompt in attendance.

Only officers of the court, attorneys and litigants or one representative of a litigant in the case on trial will be permitted within the rail of the courtroom, unless authorized by the court.

Whenever in a courtroom, a judge shall preside in a fit and dignified manner and shall wear a robe.

No conduct interfering with or obstructing the administration of justice shall be tolerated.

Each judge has the authority to delineate rules governing a spectator's or attorney's conduct inside or in the vicinity of the courtroom to ensure proceedings are conducted with dignity and decorum. Specifically, an attorney shall act in a fit, dignified, and courteous manner which will not degrade or interfere with the administration of justice.

The judge may order the courtroom cleared of spectators if courtroom decorum rules are violated. The judge may also fine any violator of courtroom decorum rules but not in excess of one hundred dollars.

The sheriff shall enforce this rule and failure to do so will subject him to this penalty.

RULE 5.02 VOIR DIRE

In the voir dire examination of jurors, the attorney shall direct to the entire venire questions only on matters not inquired into by the court. Individual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court. No hypothetical questions requiring any juror to pledge a particular verdict will be asked.

RULE 5.03 JURY INSTRUCTIONS

At least twenty-four hours prior to the time that a case is set for trial each of the attorneys shall number and file his jury instructions with the clerk and submit to opposing counsel a numbered copy of the instructions so filed in the case. At the conclusion of the taking of testimony the attorneys shall dictate into the record their specific objections to the requested instructions and specifically point out the grounds for objection. Instructions will not be given after argument has begun except in extreme cases of injustice and in such cases the adverse parties shall have an opportunity to submit other instructions. Except for good cause shown, the court will not entertain a request for additional instruction or instructions which have not been pre-filed in accordance with the above.

The attorneys may submit no more than six instructions on the substantive law of the case to which the opposing party shall dictate into the record the specific objections.

The circuit judge may instruct the jury. His instructions shall be in writing and shall be submitted to the attorneys who shall, in accordance with this rule, dictate their specific objections into the record.

The court's instructions shall be numbered and preceded by the letter "C". The defendant's instructions shall be numbered and preceded by the letter "D". The state's instructions shall be numbered and preceded by the letter "S".

All instructions by parties shall otherwise not be identified as being given by the parties or the state.

All instructions shall be read by the court in whatever order the court chooses, shall be available for the attorneys during their argument, and shall be carried by the jury into the jury room when they retire to consider their verdict.

RULE 5.04 BAILIFF'S DUTIES

The bailiff will escort the impaneled jury each time they enter or leave the courtroom during the trial and after the verdict. All attorneys, litigants and spectators will be seated when the jury enters or leaves the courtroom.

RULE 5.05 ADDRESSING JURORS

Attorneys will direct remarks to the jury panel only during voir dire, opening and closing statements. Attorneys and other persons connected with the case will not communicate privately with persons summoned for jury duty or impaneled as jurors concerning the case prior to or during the trial. All persons connected with the case will avoid the reality or appearance of currying favor by a show of undue solicitude for juror's comfort or convenience.

RULE 5.06 JURY CHALLENGES

Challenges for cause shall be stated to the court first.

In capital cases wherein the punishment may be death or life imprisonment the defendant and the state shall have twelve peremptory challenges.

In cases not capital, the defendant and the state shall have six peremptory challenges.

In all cases, a full panel shall be presented to the defendant.

RULE 5.07 SEQUESTRATION OF THE JURY

In any case where the defendant is charged with a crime punishable by death and the state seeks to impose the death penalty, the jury shall be sequestered during the entire trial.

In all other criminal cases, the jury may be sequestered upon request of either the defendant or the state made at least 48 hours in advance of the trial. The trial judge may, in the exercise of sound judicial discretion, either grant or refuse the request to sequester the jury. In the absence of a request, the trial judge may, on his own initiative, sequester a jury at any stage of a trial.

RULE 5.08 EXAMINATION OF WITNESSES

The examination of witnesses shall be conducted fairly and objectively with counsel and witnesses displaying respect and courtesy to each other. Counsel shall not ask questions merely to embarrass or humiliate the witness.

Leading questions will not be allowed by the party having the affirmative, except where proper, and specifically allowed; nor shall counsel be allowed to ask the witness again a question where there has been a full answer given to the question; but this rule shall not apply rigidly to cross-examinations, where more latitude may be required to test the truthfulness, bias, or interest of the witness.

And it shall be the duty of the court to enforce this rule of its own motion and without objection being made, but the court's failure to do so, where there is no objection made, will not constitute a ground for exception.

When necessary, the judge may interrogate a witness or may interrogate a witness to clarify testimony, but when so doing, must use the utmost impartiality and must not indicate an opinion on the value of the testimony.

The scope of cross-examination is not limited to matters about which the witness has testified to on direct examination, however the scope of cross-examination is limited to matters which are relevant or material to the case.

Redirect examination is limited to matters brought out on cross-examination.

RULE 5.09 INVOKING THE RULE OF SEQUESTRATION OF WITNESSES

By the request of either party or the court, any witness may be excluded from hearing the testimony of other witnesses in the case because he himself is to testify. The judge may cause the witnesses who have testified to be kept separate from those who have not been examined. However, in criminal cases, the defendant does not have to testify before his other witnesses and has the right to remain in the courtroom and hear all witnesses and their testimony.

Whether a witness may testify when he has remained in the courtroom after the rule has been invoked is within the discretion of the trial judge.

RULE 5.10 EXPERT WITNESSES

Any attorney or party who subpoenas an expert witness to testify shall inform the court of the presence of such witness at the time of such witness' initial appearance.

So that the staff of the Mississippi State Hospital will be in court a minimum time, no case involving the staff's testimony shall be set for trial or subpoena for the staff issue without the permission of the court, the availability of the staff having been predetermined.

RULE 5.11 STATEMENTS BY COUNSEL

The prosecuting attorney may make an opening statement to the jury, confining the statement to the facts he expects to prove.

The defense may make an opening statement to the jury. The statement shall be confined to a statement of the defense and the facts he expects to prove in support thereof.

At the conclusion of the evidence, the prosecution may make an argument to the jury.

The defendant may then make an argument to the jury. Failure of state to argue shall not deprive defendant of his right to argue.

The state may then make a rebuttal argument, but not to exceed one-half of the agreed or allotted time. The court shall be reasonable in granting time for final argument.

In their closing arguments, the attorneys will refrain from thanking the jury for acting as jurors and after the return of a verdict by the jury neither the attorneys, parties, nor spectators shall offer their congratulations or thanks to the jury for the verdict returned.

RULE 5.12 CONDUCT OF COUNSEL

Attorneys should manifest an attitude of professional respect toward the judge, opposing counsel, witnesses, defendants, jurors, and others in the courtroom. Attorneys should not engage in behavior or tactics purposely calculated to irritate or annoy the opposing counsel and shall address the court, not opposing counsel, on all matters relating to the case.

All objections to testimony must be made to the judge and not to opposing counsel. The objection must be specific and not general. Counsel will not be permitted to argue between themselves. Irrespective of personal feeling opposing counsel shall be respectful to the court and to each other. The attorneys shall stand when addressing the court, examining witnesses, and addressing the jury except when excused for good cause by the court.

The attorney shall limit himself to asking questions and shall refrain from making statements, quips, or side remarks in his examination of a witness.

In closing arguments, the attorneys shall not attack opposing counsel or mention them by name.

RULE 5.13 BIFURCATED TRIALS

There may be bifurcated trials in all felony cases.

In all felonies in which the defendant is not subject to receive the death penalty the procedure may be as follows:

(1) There shall be a jury trial according to the constitution and law unless the jury is waived by the defendant.

(2) Upon conviction, or after a plea of guilty, there shall be a hearing before the trial judge as follows:

a. A presentence investigation shall be conducted and a report thereof shall be made, consisting of a complete record of the offender's criminal history, educational level, employment history, and when required by the court, his psychological condition, and such other information as the judge shall deem necessary. A copy of said report shall be delivered to the defendant for use by him and his attorney.

b. The state may introduce evidence of aggravation of the offense to which the defendant has been convicted or pleaded guilty.

c. The defendant may introduce in evidence any evidence he deems necessary to contradict or supplement any information contained in the presentence investigation report.

d. The defendant may introduce any evidence of extenuation or mitigation.

e. The state may introduce evidence in rebuttal of evidence of the defendant.

f. A record shall be made of the above proceedings. This record shall not be a part of the record on appeal but shall be maintained in the office of the circuit clerk of the trial court as a part of the record in that court.

In any case where the defendant is charged with a crime punishable by death, and the state seeks to impose the death penalty, the trial shall be conducted in accordance with Miss.Code Ann. 99-19-101, 103 (Supp. 1978) and decisions of the Mississippi Supreme Court. See Jackson v. State, 337 So.2d 1242 (Miss. 1976), Washington v. State, 361 So.2d 61 (Miss. 1978), and cases following.

RULE 5.14 VERDICT

The court may direct the jury to select one of its members to preside over the deliberations and to write out and return any verdict agreed upon, and admonish the jurors that until they are discharged as jurors in the cause they may communicate upon subjects connected with the trial only while the jury is convened in the jury room for the purpose of reaching a verdict.

The jurors shall be kept together for deliberations as the court reasonably directs. If the court permits the jury to recess its deliberations, it shall admonish the jurors not to discuss the case until they reconvene in the jury room. If the deliberations are recessed, the jurors may be sequestered if the court orders; in all capital cases the jury shall be sequestered.

The court shall permit the jury, upon retiring for deliberation, to take to the jury room a copy of the instructions and exhibits and writings which have been received in evidence, except depositions. If the jury, after they retire for deliberation, desires to be informed of any point of law, the court shall instruct the jury to reduce its question to writing and the court in its discretion may then grant additional written instructions in response to the jury's request.

The court after notice to the prosecutor and defense counsel may recall the jury after it has retired and give such additional written instructions to the jury as the court deems appropriate.

After the jurors have retired to consider their verdict the court shall not recall the jurors to hear additional evidence.

If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.

If different counts are charged in the indictment or if the court instructs the jury as to lesser included offenses, the jurors shall, if they convict the defendant, make it appear by their verdict on which counts or of which offenses they find him guilty.

If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give an appropriate instruction. The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

The jury may be discharged without having agreed upon a verdict and a mistrial granted, if it appears that there is no reasonable probability of agreement.

When the jurors have agreed upon a verdict they shall be conducted into the courtroom by the officer having them in charge. The court shall ask the foreman if an agreement has been reached on a verdict. If the foreman answers in the affirmative, the judge shall call upon him to deliver the verdict in writing to the clerk. The court may then examine the verdict and correct it as to matters of form. The clerk shall then read the verdict to the jurors and unless disagreement is expressed by one or more of them, the verdict shall be entered of record, and the jurors discharged from the cause unless a bifurcated hearing is necessary.

If a verdict is so defective that the court cannot determine from it whether the jurors intended to acquit the defendant or to convict him of an offense for which judgment could be entered under the indictment upon which the defendant is tried, or cannot determine from it on what count or counts the jurors intended to acquit or convict the defendant, the court shall, with proper instructions, direct the jurors to reconsider the verdict, and the verdict shall not be received until it shall clearly appear therefrom whether the jurors intended to convict or acquit the defendant and upon what count or counts they intended to acquit or convict him. If the jury persists in rendering such defective verdicts the court shall declare a mistrial.

Upon the motion of either the state or the defendant or upon its own motion, the court shall cause the jurors to be asked severally if the verdict rendered is their verdict. If a juror dissents, the court must direct that the jury be sent back for further consideration; if there be no dissent the verdict shall be entered of record and the jurors discharged. Provided, however, that no motion to poll the jury shall be entertained after the jury is discharged or the verdict recorded.

While it is appropriate for the court to thank jurors at the conclusion of a trial for their public service, such comments should not include praise or criticism of their verdict.

After the verdict has been received by the court and entered on the record, the testimony or affidavits of the jurors shall not be received to impeach their verdict, except as permitted by existing case law.

RULE 5.15 MISTRIAL

Upon motion of a defendant, the court may declare a mistrial at any time during the trial. The court shall declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceeding, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case. If there are two or more defendants, the mistrial shall not be declared as to a defendant who does not make or join in the motion.

Upon motion of the state, the court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct by the defendant, his lawyers, or someone acting at the behest of the defendant or his lawyer, resulting in substantial and irreparable prejudice to the state's case. If there are two or more defendants, the mistrial shall not be declared as to a defendant if neither he, his lawyer, nor a person acting at the behest of him, or his lawyer participated in the misconduct, or if the state's case is not substantially and irreparably prejudiced as to him.

Upon motion of a party or its own motion, the court may declare a mistrial if:

(1) The trial cannot proceed in conformity with law;

(2) It appears there is no reasonable probability of the jury's agreement upon a verdict; or

(3) Upon a poll of the jury there is not unanimous concurrence with the verdict returned.

RULE 5.16 NEW TRIAL

The court on written notice of the defendant may grant a new trial on any of the following grounds:

(1) If required in the interests of justice;

(2) If the verdict is contrary to law or the weight of evidence;

(3) Where new and material evidence is recently discovered which would probably produce a different result at a new trial, and such evidence could not have been discovered sooner, by diligence of counsel;

(4) If the jury has received any evidence, papers or documents, not authorized by the court, or the court has admitted illegal testimony, or excluded competent and legal testimony;

(5) If the jurors, after retiring to deliberate upon the verdict, separated without leave of court; and

(6) If the court has misdirected the jury in a material matter of law, or, in a felony case, has failed to instruct the jury upon all questions of law necessary for their guidance.

A motion for a new trial must be made before adjournment of the term of court in which the defendant was convicted, except in those cases in which the court enters an order retaining jurisdiction to permit the filing or hearing of a motion for a new trial in vacation or after adjournment of that term of court.

The court may, with the consent of the defendant, order a new trial of its own initiative before the entry of judgment and imposition of sentence.

The court on motion of a defendant may vacate judgment, if entered, and dismiss the case without prejudice if the complaint does not charge an offense or if the court was without jurisdiction of the offense charged and improper cases, bind the defendant over to the action of the next grand jury.

RULE 6. SENTENCING

RULE 6.01 TIME OF SENTENCING

Where the defendant is adjudged guilty of the offense charged, sentence must be imposed without unreasonable delay.

The sentence shall be pronounced in open court, in term time or vacation, in the presence of the defendant (except as provided in Rule 3.02) and recorded in the minutes of the court.

RULE 6.02 PRESENTENCE REPORT

Upon acceptance of a plea of guilty, or upon a finding of guilt, and where the court has discretion as to the sentence to be imposed, the court may direct the presentence investigator to make a presentence investigation and report.

The report of the presentence investigation may contain, but is not limited to, the following information:

(1) A description of the offense and the circumstances surrounding it, not limited to aspects developed for the record as part of the determination of guilt;

(2) Any prior criminal convictions of the defendant;

(3) The defendant's financial condition;

(4) The defendant's educational background;

(5) A description of the employment background of the offender, including any military record and including his present employment status and capabilities;

(6) The social history of the defendant, including family relationships, marital status and residence history;

(7) Information about environments to which the offender might return or to which he could be sent should probation be granted;

(8) Information about special resources which might be available to assist the defendant such as treatment centers, rehabilitative programs or vocational training centers; and

(9) A physical and mental examination of the defendant wherever it is ordered by the court.

RULE 6.03 PRESENTENCE INVESTIGATION DISCLOSURE

The trial judge may disclose any of the contents of the presentence investigation only to counsel of record prior to sentencing. Any information so disclosed to one party shall be disclosed to the opposing party.

If there be a bifurcated hearing, all factual material shall be disclosed to the state and the defendant a reasonable time prior to sentencing so as to afford a reasonable opportunity for verification of the material. Prior to the sentencing proceeding each party is required to notify the opposing party and the court of any part of the report which he intends to controvert by the production of evidence, and a summary hearing may be had on the matters in issue.

RULE 6.04 PROCEDURE FOR PROOF OF PRIOR CONVICTIONS UNDER
THE

HABITUAL CRIMINAL STATUTE

In cases involving enhanced punishment for subsequent offenses under state statutes, including but not limited to, the Habitual Criminal Statute, Miss. Code Ann. 99-19-81 and 99-19-83 and the Uniform Controlled Substances Law, Miss. Code Ann. 41-29-147:

(1) The indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous felonies, the state or federal jurisdiction of previous conviction, and the date of judgment.

The indictment shall not be read to the jury.

(2) Separate trials shall be held on the principal charge and on the charge of previous convictions. In the trial on the principal charge, the previous convictions will not be mentioned by the state or the court except for impeachment purposes.

(3) If the defendant is convicted or enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions.

[Amended October 26, 1982.]

RULE 7. APPEAL

RULE 7.01 APPEAL AS OF RIGHT - HOW TAKEN - WHEN TAKEN

All appeals shall be taken according to the form, manner and procedure and within the time prescribed by the Rules of the Supreme Court of Mississippi.

[Amended effective January 1, 1984.]

RULE 7.02 BAIL PENDING APPEAL

A convicted defendant shall be entitled to be admitted to bail, pending an appeal in all cases except those in which the defendant has been sentenced to suffer death, or imprisonment for life. Where the defendant has been convicted of treason, murder, rape, arson, burglary or robbery, the granting of bail is within the discretion of the trial judge or other members of the judiciary as prescribed by Miss.Code Ann. 99-35-115 (1972).

The amount of bail shall be determined by the trial court or by any member of the judiciary as prescribed by Miss. Code Ann. 99-35-115 (1972).

The condition of the appeal bond shall be that the defendant will render himself in execution and will obey every order and judgment of the supreme court or every order and judgment of the trial court affirmed by the supreme court. The sheriff shall not accept the appeal bond unless the appeal has been perfected.

If a defendant is admitted to bail pending appeal, the trial court clerk shall so notify the clerk of the supreme court.

RULE 7.03 APPEAL TO CIRCUIT COURT

FROM JUSTICE AND MUNICIPAL COURTS

(1) Notice and Filing. 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 written notice of appeal within 40 days of such judgment with the clerk of the circuit court having jurisdiction. All further correspondence concerning the case by counsel of either side shall be mailed directly to the circuit clerk for inclusion in the file.

The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment or order from which the appeal is taken; shall be addressed to the appropriate court; and shall state that the appeal is taken for a trial de novo.

The clerk, upon receiving written notice of appeal, shall immediately send notice to the prosecuting attorney.

It shall be the duty of the judge or justice from whose judgment the appeal is taken to deliver to the clerk of the circuit court, within 10 days after the appeal bond is given, the bond taken by him, and a certified copy of his record in the case with all the original papers in the case.

(2) Bond and Appearance. Unless excused by the making of an affidavit as specified in Miss. Code Ann. 99-35-7 (1972), bond with sufficient resident sureties (or licensed guaranty companies) or of cash shall be given and conditioned on appearance before the circuit court during the term in which appeal is taken or at the next term after appeal.

If the defendant fails to appear as ordered by the court upon trial de novo the circuit court may dismiss the appeal and remand the case for execution of judgment.

All time the defendant is in custody pending an appeal shall be automatically deducted from the sentence imposed by the court.

(3) Trial. Upon the trial de novo in circuit court all proceedings, including those prior to trial, shall be as if the action had been initially commenced in that court and the prior judgment of conviction shall be stayed by the court upon receipt of sufficient bond or excuse therefore.

The record certified to the circuit court on appeal from the justice or municipal court is competent evidence in circuit court. However, no motion may be made in circuit court which deprives 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.

RULE 7.04 APPEALS TO CIRCUIT COURT FROM COUNTY COURT

(1) Notice and Filing. Any person adjudged guilty of a criminal offense by a county court, where the case was not a felony action transferred to that court from circuit court, may appeal to the circuit court having jurisdiction by filing written notice with the clerk of the county court within 10 days of the entry of the final judgment. The county judge may for good cause shown extend the time for filing up to 50 additional days.

Appeal may be heard in term time or vacation and shall be considered solely on the record made in county court. If no prejudicial error be found, the circuit court shall affirm and enter judgment in like manner as affirmance in the supreme court. If prejudicial error be found, the circuit court shall reverse as is provided for reversals in the supreme court. If a new trial is granted the cause shall be remanded to the docket of the circuit court and a new trial held therein de novo.

The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment or order from which the appeal is taken; state that the appeal is to circuit court; and state that the appeal is taken on the record. The clerk, upon receiving written notice of appeal, shall immediately send notice to the prosecuting attorney.

(2) Bond. Unless otherwise excused by law, a sufficient bond shall be given within the time prescribed for taking of the appeal. The amount of the bond shall be set by the judge or clerk of the county court in which the judgment was rendered. The bond shall be conditioned on appearance before the circuit court during the term to which appeal is taken, and if defendant fails to so appear, the circuit court shall dismiss the appeal, remand the case for execution of judgment, and order forfeiture of the bond.

The giving of bond or a sufficient affidavit that appellant is unable to give an appeal bond shall act as supersedeas. All time that appellant is in custody pending an appeal shall be automatically deducted from the sentence imposed by the court.

(3) Record on Appeal. The practices and procedures with respect to the trial transcript shall be the same as if the appeal had been taken from the circuit court to the supreme court.

(4) Felony Transfers. Final judgments in felony cases transferred from circuit court to county court shall be appealed to the supreme court in the same manner as if the judgment were rendered in the circuit court.

(a) The appellant shall file an assignment of error on or before the due date of appellant's brief. The assignment of error shall set out specifically and particularly each error asserted and intended to be urged. Cross-appeals may be taken by the appellee by filing a cross-assignment of errors at the time the brief of appellee is due.

(b) No error not distinctly assigned shall be argued by counsel, except upon request of the court, but the court may, at its option, notice a plain error not assigned or distinctly specified.

RULE 8. GENERAL PROVISIONS

RULE 8.01 NO COMMUNICATION WITH VENIRE

No person involved in any case shall communicate with or offer any favor, however slight, to any person on the venire.

RULE 8.02 COURTROOM CONDUCT

The circuit court shall be formally opened and at all times conducted with dignity and decorum. Each officer of the court shall be responsible for the promotion of respect for the court.

RULE 8.03 COPIES

Substitution of a copy for an original exhibit will be permitted only after verification of the copy by the court reporter.

RULE 8.04 NAME OF ATTORNEY REQUIRED ON ALL PLEADINGS

All pleadings shall bear the name and address of the attorney who will try the case.

RULE 8.05 PENALTY FOR FAILURE TO OBSERVE RULES

Any officer of the court or person embraced within these rules who willfully or knowingly violates the provisions hereof may be subjected to contempt proceedings or other disciplinary action required by the court.

RULE 8.06 PRESS COVERAGE

No cameras or broadcasting will be permitted in the courtroom without the prior written approval of the court.

RULE 8.07 HABEAS CORPUS

(1) The writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of the person is withheld from the person entitled thereto.

(2) If necessary for the effective utilization of any of the following procedures, counsel shall be appointed by the court for a petitioner who qualifies for the appointment of counsel under Miss. Code Ann. 99-15-15 (1972).

(3) The proceedings and judgments shall in all cases be entered on record.

FORM OF THE PETITION FOR THE WRIT OF HABEAS CORPUS FOR

PRE-CONVICTION RELIEF

(1) The petition for the writ of habeas corpus shall be in writing, sworn to and signed by the person for whose relief it is intended, or by someone in his behalf, and shall contain the following matters:

(a) A description of where and by whom the petitioner is deprived of his liberty, and

(b) The facts and circumstances of the restraint, and

(c) The form of the relief sought, and

(d) The grounds upon which relief is sought, and

(e) If desired, a request for a copy of transcripts of any prior proceeding if the petitioner qualifies as an indigent under Miss. Code Ann. 99-15-15 (1972), specifying what portions are necessary to decide the issues.

(2) The petition for the writ of habeas corpus shall be filed with the clerk of any court of competent jurisdiction of the county wherein the petitioner is detained, whether the court be in term or in vacation. No consideration shall be made by the court except upon three days written notice, with a copy of the petition attached thereto, on the prosecuting attorney. Such three day notice may be waived for grounds sufficiently urgent and necessary to due process. If no court has entertained any proceeding on the petitioner's matter, the petition shall be filed with the clerk of the circuit court in the county in which the petitioner is detained, whether that court be in term or in vacation.

FORM OF THE PETITION FOR THE WRIT OF HABEAS CORPUS FOR

POST-CONVICTION RELIEF

(1) The petition for the writ of habeas corpus shall be in writing, sworn to and signed by the person for whose relief it is intended, or by someone in his behalf, and shall contain the following matters:

(a) A description of where and by whom the petitioner is deprived of his liberty, and

(b) The facts and circumstances of the restraint, and

(c) The form of the relief sought, and

(d) The grounds upon which relief is sought, and

(e) If desired, a request for a copy of transcripts of any prior proceeding if the petitioner qualifies as an indigent under Miss. Code Ann. 99-15-15 (1972), specifying what portions are necessary to decide the issues.

(2) The petition for the writ of habeas corpus shall be filed with the clerk of the court that last entertained any proceeding on the cause from which the petitioner seeks relief, whether the court be in term or in vacation. No consideration shall be made by the court except upon three days written notice, with a copy of the petition attached thereto, on the prosecuting attorney. Such three day notice may be waived for grounds sufficiently urgent and necessary to due process. If no court has entertained any proceeding on the petitioner's matter, the petition shall be filed with the clerk of the circuit court in the county in which the petitioner is detained, whether that court be in term or in vacation.

PRELIMINARY CONSIDERATION OF THE PETITION FOR THE

WRIT OF HABEAS CORPUS

(1) The petition shall be examined promptly by the judge of the court in which the petition is filed.

(2) If the petition, upon examination, does not substantially comply with the requirements of this rule, it need not be entertained on its merits and the clerk shall so notify petitioner.

(3) If from the showing made by the petition it is manifest that the person whom, or on whose behalf, it is presented is not entitled to any relief, the court can refuse to grant the writ and enter an appropriate order.

(4) Upon granting the writ the court shall order the respondent to file an answer within a reasonable time and in an appropriate court.

(5) Upon granting the writ the court shall also order the respondent to bring or cause to bring the petitioner before the court at the time and place of the hearing on the writ.

(6) If the petitioner requests transcripts of any prior proceeding and the petitioner qualifies as an indigent as under Miss. Code Ann. 99-15-15 (1972), the judge shall order the portions of the transcripts deemed necessary to decide the issues to be made available to the petitioner within reasonable time before the date of the hearing on the writ.

THE ANSWER

(1) The respondent upon whom the writ of habeas corpus is served shall file an answer in writing signed and sworn to by the person making the answer. The answer shall be filed by the date and in the court designated in the writ of habeas corpus and a copy served upon the petitioner or his representative.

(2) The answer must respond to all the allegations of the petition including the following matters:

(a) Whether the respondent has or has not the petitioner in his custody or power or restraint, and

(b) If the respondent does have the petitioner in his custody or his power or restraint, the respondent shall state the authority and cause of the restraint, and

(c) If the petitioner is restrained by virtue of any writ, warrant, or other written authority a copy of such shall be attached to the answer, and

(d) If the respondent has had the petitioner in his restraint at any time prior to or subsequent to the date on the writ of habeas corpus, but such person has escaped or been transferred to the custody of another, a description of the escape or if transfer, the time, place, for what cause, and by what authority such transfer took place.

DISCOVERY

A party shall be entitled to invoke the processes of discovery available under Miss. Code Ann. 13-1-201, 226-243 (1972), if and to the extent that the court in the exercise of its discretion and for good cause shown grants leave to do so, but not otherwise.

THE HEARING

(1) The court before whom the petitioner is brought upon the hearing on the writ of habeas corpus shall inquire into all the allegations set forth in the answer. The court may issue or order subpoenas for witnesses and compel their attendance, including, but not being limited to, subpoenas duces tecum.

(2) The court shall either discharge, or commit, or admit to bail, or remand the petitioner or award custody to the party entitled thereto as the law and the evidence shall require. The court may make any temporary order in the cause during the progress of the proceeding that justice may require.

(3) The order rendered by the court shall be conclusive until reversed and shall be a bar to another writ of habeas corpus in the same cause, except by appeal or civil action for false imprisonment.

APPEAL

(1) Any party aggrieved by the judgment on the hearing of habeas corpus or the refusal to grant a hearing of habeas corpus shall have the right to an appeal to the state supreme court.

(2) Such appeal may be had by or in behalf of the person deprived of his liberty on the same terms and conditions as are provided for in criminal cases; but such appeal shall not entitle a party to be discharged on bail in any case held not to be one in which the party is entitled to bail. In all other cases, an appeal may be had on the terms prescribed for appeals in civil cases where a supersedeas is not desired.