Miss. R. App. P. 41

As amended through March 21, 2024

Rule 41 - Issuance of Mandates; Stay of Mandate

(a) Date of Issuance: Supreme Court. The mandate of the Supreme Court shall issue 21 days after the entry of judgment unless the time is shortened or enlarged by order. The mandate shall consist of both a certified copy of the judgment of the Supreme Court with any direction as to costs, and a copy of the Court's written opinion, if any. The timely filing of a motion for rehearing will stay the mandate until disposition of the motion, unless otherwise ordered by the Court. If the motion is denied, the mandate will issue seven (7) days after entry of the order denying the motion unless the time is shortened or enlarged by order.

(b) Date of Issuance: Court of Appeals. Unless otherwise ordered, the mandate of the Court of Appeals shall issue 21 days after the latest of: the entry of judgment; the disposition of a timely motion for rehearing; or the denial or dismissal of a petition for certiorari review in the Supreme Court. If the Mississippi Supreme Court grants certiorari review, the mandate shall issue in accordance with Rule 41(a).

(c) Stay of Mandate Pending Application for Certiorari. A stay of the mandate pending application to the United States Supreme Court for a writ of certiorari may be granted upon motion, reasonable notice of which shall be given to all parties. The stay shall not exceed 90 days unless the period is extended for cause shown. If during the period of the stay there is filed with the clerk of Supreme Court a notice from the clerk of the United States Supreme Court that the party who has obtained the stay has filed a petition for the writ in that Court, the stay shall continue until final disposition by that Court. Upon the filing of a copy of an order of the United States Supreme Court denying the petition for writ of certiorari, the mandate shall issue immediately. A bond or other security may be required as a condition to the grant or continuance of a stay of the mandate.

(d) Stay of Mandate and Release in Criminal Cases. Stay of the mandate in criminal cases shall be governed by Rule 41(c), but, in addition, the petitioner must set forth good cause for the stay and clearly demonstrate that a substantial federal question previously presented on appeal is to be presented to the United States Supreme Court. In order to obtain release, the petitioner must also post a fully executed and approved appearance bond in a penal sum equal to double the amount of the bond upon which the petitioner was released from custody after conviction.

(e) Motion to Amend or Correct Mandate; Time For Filing. Any motion to amend or correct the mandate may be filed within fourteen (14) days after the court has issued the mandate or any addition to the mandate.

Miss. R. App. P. 41

Amended 2/10/1995; amended 6/21/1996; amended effective 9/30/2004 to allow the stay of a mandate under Rule 41(c) for 90 days.

Advisory Committee Historical Note

Effective September 18, 1997, Rule 41(d) was amended to effect a technical change. 699-701 So. 2d XXX (West Miss. Cases 1997).

Effective June 21, 1996, Rule 41 was amended to redesignate rehearing "petitions" as "motions." 673-678 So.2d XLIII (West Miss. Cases 1996).

Effective February 10, 1995, Rule 41(b) was entirely rewritten. 648 So.2d XXXIIXXXIII (West Miss.Cases 1995).

Effective January 1, 1995, Miss.R.App.P. 41 replaced Miss.Sup.Ct.R. 41, adding a new subsection (b) to govern the issuance of mandates by the Court of Appeals. 644-647 So.2d LXXX-LXXXI (West Miss.Cases 1994).

Comment

Rule 41 is based upon Fed.R.App.P. 41. Under Rule 41(a) and (b) the appropriate appellate court issues a formal mandate which includes a certified copy of the judgment with any direction as to costs and a copy of the written opinion, if any. The mandate must correctly and adequately reflect the decision and judgment of the Court. Deposit Guaranty National Bank v. E.Q. Smith Plumbing & Heating, Inc., 396 So. 2d 6 (Miss. 1981).

Subsection (c) is based upon Fed. R. App. P. 41(b).

Under subsection (d), a motion for a stay of the issuance of the mandate in a criminal case will not be granted unless the petition sets forth good cause for the stay and clearly demonstrates that a substantial question previously presented on appeal is to be presented to the United States Supreme Court. A motion for a stay of the issuance of the mandate in such a criminal appeal shall not be granted simply upon request. A party is no longer required to file a copy of the party's certiorari petition prior to obtaining release. However, the motion for stay must demonstrate that a substantial federal question exists, and the party must obtain a notice that the certiorari petition has been filed in order to obtain an extension of the stay and release beyond 30 days.

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