Miss. R. App. P. 6

As amended through October 31, 2024

Rule 6 - Counsel on Appeal in Criminal Cases and Proceedingsin Forma Pauperisin Criminal Cases

(a) Leave to Proceed In Forma Pauperis From the Trial Court to the Supreme Court in Criminal Cases.

(1)Post-trial Motion in Trial Court. A defendant in a criminal case in a trial court who desires to proceed on appeal in forma pauperis shall file in the trial court a motion for leave so to proceed, together with an affidavit showing the defendant's inability to pay fees and costs. If the motion is granted, the defendant may so proceed without further application to the Supreme Court and without prepayment of fees or costs in either court. If the motion is denied, the trial court shall state in writing the reasons for the denial.

(2) When In Forma Pauperis Status Previously Granted by Trial Court. Notwithstanding the provisions of Rule 6(a)(1), a party who has been permitted to proceed in forma pauperis in the trial court may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the trial court shall certify that the party is no longer indigent and is not otherwise entitled to proceed in forma pauperis. The court shall state in writing the reasons for such certification or finding. Where an appeal is taken to the Supreme Court in forma pauperis, the certification of compliance required by Rule 11(b)(1) shall indicate that the appeal is taken in forma pauperis.

(3)Motion in the Supreme Court. If a motion for leave to proceed on appeal in forma pauperis is denied by the trial court, the trial court clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the Supreme Court within 30 days after service of notice of the action of the trial court. The motion shall be accompanied by a copy of the affidavit filed in the trial court, or by the affidavit prescribed by Rule 6(a)(1) if no affidavit has been filed in the trial court, and by a copy of the statement of reasons given by the trial court for its action.

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

Appointed trial counsel shall continue as defendant's counsel on appeal unless relieved by order of the trial court, or, if the appeal has been perfected, by order of the Supreme Court or the Court of Appeals. Any motion for such relief filed with the Supreme Court shall be accompanied by a certified copy of a trial court order appointing substitute counsel pending action by the Supreme Court or the Court of Appeals.

Appointed trial counsel may file a motion to substitute the Indigent Appeals Division of the Office of the State Public Defender, in accordance with Section 99-40-1 of the Mississippi Code. Trial counsel shall remain as the defendant's counsel until relieved by order of the Supreme Court and shall have a continuing duty to cooperate with appellate counsel after relieved by order of the Supreme Court.

(c) Waiver of Counsel in Criminal Appeal.

(1)When Appellant Has No Counsel. Where an appeal is taken to the Supreme Court and the appellant is not represented by an attorney, and the existing record does not disclose whether appellant intelligently and competently waived the right to counsel in the State appellate courts, the Supreme Court or the Court of Appeals shall request the trial court to determine:

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

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

iii. if the appellant does not desire counsel, whether the appellant intelligently and competently waives the appointment of counsel on appeal.

A transcript shall be made by the court reporter of the hearing on these issues before the trial court, and such transcript and the order of the trial court shall be certified to the Supreme Court or the Court of Appeals and shall be made a part of the record on appeal.

If the trial judge or the appellate court determines that appellant is indigent and is entitled to the appointment of counsel on appeal, and that the appellant has not intelligently and competently waived the same, the trial court shall, except for good cause shown, appoint the Indigent Appeals Division of the Office of the State Public Defender to represent the appellant on appeal in accordance with the provisions of Section 99-40-1 of the Mississippi Code.

If the trial judge or the appellate court determines that appellant is not indigent and that the appellant has not intelligently and competently waived the right to counsel on appeal, the appellate court shall stay the appeal for thirty (30) days so that appellant may hire counsel.

(2) When Appellant Moves to Dismiss Counsel and Proceed Pro Se on Appeal. When a criminal appellant moves to dismiss counsel on appeal and proceed pro se, the appellant shall serve a copy of the motion upon current counsel. The appellate court shall request the trial court to determine:

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

ii. if indigent, whether the appellant desires counsel to be appointed; and iii. if the appellant does not desire counsel, whether the appellant intelligently and competently waives the right to counsel on appeal.

If it is determined that appellant has not intelligently and competently waived the right to counsel on appeal, then the motion to dismiss counsel shall be denied. If it is determined that appellant has intelligently and competently waived the right to counsel on appeal, then the motion to dismiss counsel shall be granted.

Miss. R. App. P. 6

Amended 8/9/2007, to provide for appointment of the Mississippi Office of Indigent Appeals; Adopted to govern matters filed on or after 1/1/1995; amended effective 8/2/2012 to include procedural safeguards regarding the waiver of counsel in a criminal appeal.

Advisory Committee Historical Note

Effective January 1, 1995, M.R.A.P. 6 replaced Miss. Sup. Ct. R. 6, embracing proceedings in the Court of Appeals. 644-647 So. 2d XXXIII-XXXIV (West Miss. Cases 1994).

[Adopted August 21, 1996.]

Comment

Rule 6(a) and (b) provide for appeals in forma pauperis in criminal appeals. The rule reflects the salient features of Fed. R. App. P. 24 and Ala. R. App. P. 24. See Form 4 for a suggested affidavit to accompany a motion for application to proceed in forma pauperis. Rule 6(b) provides that appointed counsel in a criminal case may not be relieved of the responsibility for an appeal absent leave of Court. Allison v. State, 436 So. 2d 792 (Miss. 1983).

An accused entitled to counsel at trial is also entitled to counsel in an appeal as of right to the Supreme Court. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); Neal v. State, 422 So. 2d 747, 748 (Miss. 1982). Under federal law, a defendant is entitled to counsel if a sentence of imprisonment is imposed. Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979). See also Miss. Const. of 1890, art. 3, § 26.

The county prepays costs when an indigent criminal defendant appeals in forma pauperis. Miss. Code Ann. § 99-35-105 (Rev. 2000). The Clerk of the Supreme Court charges no fees or costs when a defendant incarcerated at the Mississippi State Penitentiary appeals on pauper's oath. Miss. Code Ann. § 25-7-3 (Rev. 2006).

Rule 6(b) provides for the appointment of the Indigent Appeals Division of the Office of the State Public Defender in accordance with Section 99-40-1 of the Mississippi Code. An indigent appellant shall be represented by the Indigent Appeals Division of the Office of the State Public Defender absent good cause shown.

Rule 6(c) is regarding the waiver of counsel on appeal in criminal cases. The subsection applies regardless of appellant's ability to pay for counsel. The waiver of counsel must be knowingly and intelligently made. The hearing in the trial court mirrors the hearing provided for in MRCrP 7.l(c). If appellant's motion to dismiss counsel is denied, appellant may file a pro se supplemental brief pursuant to Rule 28(b).

[Amended effective August 2, 2012; July 1, 2017.]