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UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW
DEAN
Susan Duncan
MISSISSIPPI JUDICIAL COLLEGE
BOARD OF GOVERNORS
Chancellor Cynthia Brewer, Chancery Court, Chair
Judge Virginia Carlton, Mississippi Court of Appeals
Judge William “Tony” Boykin, Justice Court
Justice Robert Chamberlin, Mississippi Supreme Court
Bill Benson, Constituent Advisory Committee Representative
Judge Bill Halford, Municipal Court
Judge Ed Hannan, County Court
Judge Betty Sanders, Senior Status Judge
Judge Michael Taylor, Circuit Court
DIRECTOR
Randy Pierce
ADDRESS
Mississippi Judicial College
Post Office Box 1848
University, MS 38677
TELEPHONE AND FACSIMILE
Telephone: (662) 915-5955
Fax: (662) 915-7845
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USER’S GUIDE TO
THE MANUAL FOR MISSISSIPPI MUNICIPAL COURTS
Your manual is easy to use.
C The Contents page lists the specific chapters.
C Each topic within a chapter has its own section number.
C Each section number is linked to the text.
C Some topics include subheadings.
Section numbers identify both the chapter and the sequential order of the topic. Some topics will
include subheadings and applicable rule or statutory provisions. Please note that only those
portions of a rule or statute that pertain to the subheading are actually quoted in the text.
Lastly, some common abbreviations used throughout the text include:
“MRCrP” means the Mississippi Rules of Criminal Procedure.
“MRE” means the Mississippi Rules of Evidence.
“URCCC” means the Uniform Rules of Circuit and County Court.
“U.R.Y.C.P.” means the Uniform Rules of Youth Court Practice.
“Canon” means a Canon of the Code of Judicial Conduct.
Any suggestions that you may have to further improve the style, format, or content of the manual
should be addressed to:
E-mail: [email protected]
FAX: 662-915-7845
Telephone (with voice mail): 662-915-1249
This manual is intended as a reference to the law rather than as a substitute for the actual
materials cited. To ensure lawful compliance of the law always refer to the most recent
publications of rules, statutes, cases, etc.
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CONTENTS
1. RESOURCES
2. MUNICIPAL COURT JUDGE
3. MUNICIPAL CLERK
4. WARRANTS
5. EXCEPTIONS TO THE WARRANT REQUIREMENT
6. CONFESSIONS
7. RELEASE
8. CRIMINAL CASES
9. SENTENCING
10. ENFORCING CRIMINAL JUDGMENTS
11. DUI
12. RULES OF THE ROAD
13. FINANCIAL RESPONSIBILITY, PASSENGER SAFETY, AND EQUIPMENT
14. TRAFFIC VIOLATIONS PROCEDURES
15. DOMESTIC VIOLENCE, ASSAULTS, AND DISTURBANCES
16. SHOPLIFTING
17. BAD CHECKS
18. DRUG OFFENSES
19. CRIMINAL TRESPASSES
20. PROTECTION FROM DOMESTIC ABUSE
21. CONTEMPT OF COURT
22. EVIDENCE
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100 MISSISSIPPI LAWS
Mississippi Code of 1972:
The Code contains:
• The United States Constitution,
• The Mississippi Constitution,
• Mississippi statutes, and
• indexes and statutory tables.
The statutes are organized into titles (major subject areas), chapters (specific subjects),
and sections (actual language of statute). For example, in § 21-23-1: 21 is the title
"Municipalities", -23 is the chapter "Municipal Courts", and -1 is the section
"Establishment".
Mississippi Rules of Court:
The Mississippi Rules of Court contains rules governing judicial procedures and conduct,
such as:
• Uniform Rules of Circuit and County Court Practice,
• Rules of Evidence,
• Code of Judicial Conduct,
• Rules and Regulations for Mandatory Continuing Judicial Education.
Case law:
The Mississippi Supreme Court and the Mississippi Court of Appeals decide cases
appealed to them from lower courts. Published opinions of these cases are precedent in
interpreting the constitutionality, application and language of the Rules and statutes. See
Rules of Appellate Procedure, Rule 35-A and 35-B (written opinions and entry of
judgment).
101 WEBSITES
Mississippi Attorney General: http://www.ago.state.ms.us/
Mississippi Bar: http://www.msbar.org/
Mississippi Department of Archives and History: https://www.mdah.ms.gov/
Mississippi Judicial College: http://mjc.olemiss.edu/
Mississippi Judiciary: http://courts.ms.gov/
Mississippi Legislature: http://www.legislature.ms.gov/
CHAPTER 2
MUNICIPAL COURT JUDGE
200 ESTABLISHMENT AND OATH
Establishment of municipal court
Oath
201 APPOINTMENT OF MUNICIPAL JUDGES
If population is 10,000 or more
If population exceeds 10,000 and other criteria is met
Additional judges if population exceeds 50,000
If population is less than 10,000
If population is less than 20,000
Temporary judges
202 POWERS AND DUTIES OF THE MUNICIPAL JUDGE
For violations of municipal ordinances and misdemeanor offenses
As a committing court
As a conservator of the peace
For civil actions under the Protection from Domestic Abuse Act
In solemnizing marriages, taking oaths, and issuing orders
In administrating the court’s business
In expunging records
In appointing deputy clerks
Judge not to receive any fees or costs
203 RECUSAL
Disqualification
Remittal of disqualification
Transfers to justice court
204 SEPARATION OF POWERS
Separate magistracies
Separate powers
205 JUDICIAL IMMUNITY
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200 ESTABLISHMENT AND OATH
§ 21-23-1 Establishment of municipal court:
There shall be a municipal court in all municipalities of this state. Wherever the
words "police court" or "police justice" appear in the laws of this state, they shall
mean municipal court or municipal judge, respectively.
Mississippi Attorney General’s opinions:
Authority to administrator oaths.
“Pursuant to Section 21-23-1, a municipal court judge is the “police justice” of a
municipality. Therefore, a municipal court judge could administer the oath of office.” Op.
Atty. Gen. Thomas, May 9, 2003.
Art. VI § 155 Oath:
The judges of the several courts of this state shall, before they proceed to execute
the duties of their respective offices, take the following oath or affirmation, to-wit:
“I, __________, solemnly swear (or affirm) that I will administer justice without
respect to persons, and do equal right to the poor and to the rich, and that I will
faithfully and impartially discharge and perform all the duties incumbent upon me
as __________ according to the best of my ability and understanding, agreeably to
the Constitution of the United States and the Constitution and laws of the state of
Mississippi. So help me God.”
201 APPOINTMENT OF MUNICIPAL JUDGES
§ 21-23-3 If population is 10,000 or more:
In all municipalities having a population of ten thousand (10,000) or more, according to
the latest available federal census, there shall be a municipal judge and a prosecuting
attorney, who shall be appointed by the governing authorities of the municipality at the
time provided for the appointment of other officers. The municipal governing authorities
may appoint one (1) additional municipal judge, who shall exercise the same authority
and prerogatives of the office, regardless of the presence or absence of the other
municipal judge. Except as otherwise provided in Section 21-23-5, a municipal judge
shall be a qualified elector of the county in which the municipality is located and shall be
an attorney at law. Such municipal judges and prosecuting attorney shall receive a salary,
to be paid by the municipality, and to be fixed by the governing authorities of the
municipality.
§ 21-23-3 If population exceeds 10,000 and other criteria is met:
Provided, however, the governing authorities of any municipality having a population in
excess of ten thousand (10,000) persons according to the latest available federal census
and situated in a county having an area in excess of nine hundred thirty-five (935) square
miles and having a county court may, in their discretion, follow the provisions as set out
in Section 21-23-5 for municipalities having a population of less than ten thousand
(10,000).
§ 21-23-3 Additional judges if population exceeds 50,000:
Provided, further, the governing authorities of any municipality having a
population in excess of fifty thousand (50,000) according to the latest federal
decennial census may, in their discretion, provide for the appointment of not more
than ten (10) municipal judges for said municipality, each of whom shall exercise
the same authority and prerogatives of their office, regardless of the presence or
absence of the other municipal judges.
§ 21-23-5 If population is less than 10,000:
In any municipality having a population of less than ten thousand (10,000)
according to the latest available federal census, it shall be discretionary with the
governing authorities of the municipality as to whether or not a municipal judge or
a prosecuting attorney, or both, shall be appointed.
Mississippi Attorney General’s opinions:
Municipal judge needed to enforce municipal ordinances.
“[I]t is the opinion of this office that a municipality with a population of less than ten
thousand may choose not to appoint a municipal judge to manage a municipal court.
However, without a municipal judge, a town cannot enforce its municipal ordinances.”
Op. Atty. Gen. Hatcher, Sept. 24, 1999.
§ 21-23-5 If population is less than 20,000:
If the authorities of any municipality having a population of less than twenty thousand
(20,000) according to the latest available federal census appoint a municipal judge, he
shall be an attorney licensed in the State of Mississippi or a justice court judge of the
county in which the municipality is located. The mayor or mayor pro tempore shall not
serve as a municipal judge.
§ 21-23-9 Temporary judges:
In any municipality where a municipal judge is appointed or elected, the governing
authorities shall have the power and authority to appoint a municipal judge pro tempore
who shall have the same powers and qualifications for office as the municipal judge and
shall perform all duties of the municipal judge in the absence of such municipal judge or
if such municipal judge is unable to serve for any reason. In the event a municipal judge
pro tempore is not appointed or is absent or unable for any reason to serve, any justice
court judge of the county or municipal judge of another municipality may serve in his
place with the same power and authority upon designation by the municipal judge. Any
municipality that appoints a municipal judge pro tempore in the absence of a municipal
judge or has a justice court judge serve in the absence of a municipal court judge, as
provided in this section, is authorized to compensate that municipal judge pro tempore or
justice court judge in the same manner and amount as the municipality provides for the
appointed or elected municipal judge who is absent.
Mississippi Attorney General’s opinions:
No appointing multiple municipal judges pro tempore.
“[T]he municipal governing authorities may appoint one municipal judge pro tempore,
and also designate one justice court judge or municipal judge of another municipality to
serve in the absence of the municipal judge pro tempore. We do not find authority in
Section 21-23-9 for the municipal governing authorities to appoint multiple municipal
judges pro tempore.” Op. Atty. Gen. Hewes, June 17, 2005.
If municipal judge pro tempore is not available.
“[A] municipal court judge may appoint a justice court judge to serve in his place with
the same power and authority if the municipal court judge is unavailable and a municipal
judge pro tempore is either not appointed or otherwise unavailable.”) Op. Atty. Gen.
Lantrip, March 26, 2004.
Authority of appointed municipal judge.
“A justice court judge . . . appointed [under Section 21-23-9] would have the same power
and authority as the municipal court judge, which would necessarily include the authority
to execute warrants.” Op. Atty. Gen. Sorrell, March 12, 2004.
Appointed judge to act in capacity of municipal court judge.
“[T]he judge [appointed under Section 21-23-9] is not acting in his/her capacity as a
justice court judge but rather in the capacity of a municipal court judge.” Op. Atty. Gen.
Adams, August 1, 2003.
202 POWERS AND DUTIES OF THE MUNICIPAL JUDGE
§ 21-23-7 For violations of municipal ordinances and misdemeanor offenses:
(1) . . . The municipal judge shall have the jurisdiction to hear and determine, without a
jury and without a record of the testimony, all cases charging violations of the municipal
ordinances and state misdemeanor laws made offenses against the municipality and to
punish offenders therefor as may be prescribed by law.
Mississippi Attorney General’s opinions:
Municipal ordinance violations.
“Without question, the municipal court has sole jurisdiction to hear and determine cases
charging violations of municipal ordinances, pursuant to Section 21-23-7.” Op. Atty.
Gen. Spruill, March 12, 2012.
§ 21-23-7 As a committing court:
(1) . . . He may sit as a committing court in all felonies committed within the
municipality, and he shall have the power to bind over the accused to the grand
jury or to appear before the proper court having jurisdiction to try the same, and to
set the amount of bail or refuse bail and commit the accused to jail in cases not
bailable.
§ 21-23-7 As a conservator of the peace:
(1) . . . The municipal judge is a conservator of the peace within his municipality. He may
conduct preliminary hearings in all violations of the criminal laws of this state occurring
within the municipality, and any person arrested for a violation of law within the
municipality may be brought before him for initial appearance. The municipal court shall
have jurisdiction of any case remanded to it by a circuit court grand jury.
§ 21-23-7 For civil actions under the Protection from Domestic Abuse Act:
(1) . . . The municipal court shall have civil jurisdiction over actions filed pursuant to and
as provided in Title 93, Chapter 21, Mississippi Code of 1972, the Protection from
Domestic Abuse Act.
§ 21-23-7 In solemnizing marriages, taking oaths, and issuing orders:
(3) The municipal judge may solemnize marriages, take oaths, affidavits and
acknowledgments, and issue orders, subpoenas, summonses, citations, warrants for search
and arrest upon a finding of probable cause, and other such process under seal of the court
to any county or municipality, in a criminal case, to be executed by the lawful authority of
the county or the municipality of the respondent, and enforce obedience thereto. The
absence of a seal shall not invalidate the process.
Mississippi Attorney General’s opinions:
Solemnizing marriages.
“[A] municipal court judge [under Section 21-23-7(3)] may solemnize a marriage within
his jurisdiction. Op. Atty. Gen. Westfaul, February 18, 2000.
§ 21-23-7 In administrating the court’s business:
(10) The municipal court shall have the power to make rules for the administration of the
court's business, which rules, if any, shall be in writing filed with the clerk of the court
and shall include the enactment of rules related to the court's authority to issue domestic
abuse protection orders pursuant to Section 93-21-1 et seq.
See also Miss. Code Ann. § 21-23-11 (“The clerk of the municipality shall be the clerk of
the municipal court, unless the governing authorities shall otherwise elect. The clerk of
the court shall attend the sittings of the court in person or by duly appointed deputies, and
he shall be under the direction of the municipal judge.”).
Mississippi Attorney General’s opinions:
Operation of court under control of municipal judge.
“[T]he operation of the court, of whatever nature, is under the auspices and control of the
municipal judge.” Op. Atty. Gen. Smith, March 3, 2006.
§ 21-23-7 In expunging records:
(13) A municipal court judge shall expunge the record of any case in which an arrest was
made, the person arrested was released and the case was dismissed or the charges were
dropped or there was no disposition of such case.
Mississippi Attorney General’s opinions:
Expunging traffic offenses under Section 21-23-7(13).
“[A] traffic offense that has been dismissed, dropped or has no disposition is eligible to
be expunged under Mississippi Code Annotated Section 21-23-7(13) . . . .” Op. Atty.
Gen. Miller, September 14, 2001.
§ 21-23-11 In appointing deputy clerks:
The governing authorities may authorize the municipal judge to appoint other municipal
employees as deputy clerks of the court to assist the clerk of the court in the conduct of
the court's responsibilities or the governing authorities may appoint deputy clerks of the
court. The authorization to appoint and/or appointment of deputy clerks of the court shall
be entered in the minutes of the municipality. A police officer of the municipality may be
the clerk of the court or a deputy clerk of the court. The governing authorities shall
provide for the training of court personnel.
Mississippi Attorney General’s opinions:
Police officer serving as clerk of the court.
“Miss. Code Ann. Section 21-23-11 sets forth the duties of the municipal court clerk and
states that the court clerk has power “to take acknowledgments, administer any oaths
required by law to be taken by any person, and take affidavits charging any crime against
the municipality or state.” This statute states that a police officer may be the clerk of the
court or a deputy clerk of the court. . . . See also MS AG Op., Pickens (July 3, 1997)
(officer may not take his own oath). ” Op. Atty. Gen. Holland, April 5, 2002.
§ 21-23-15 Judge not to receive any fees or costs:
Neither the municipal judge, the marshal or chief of police, any police officer, or
any other officer, shall receive any fees or costs in any case in the municipal court.
Mississippi Attorney General’s opinions:
No additional fees or costs for attending court.
“Section 21-23-15 simply provides that the judge is not entitled to any fees or costs for
attending court in addition to the salary established by the governing authorities.” Op.
Atty. Gen. Young, June 17, 2005.
203 RECUSAL
Canon 3E Disqualification:
(1) Judges should disqualify themselves in proceedings in which their impartiality might
be questioned by a reasonable person knowing all the circumstances or for other grounds
provided in the Code of Judicial Conduct or otherwise as provided by law, including but
not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge
of disputed evidentiary facts concerning the proceeding;
(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the
judge previously practiced law served during such association as a lawyer concerning the
matter, or the judge or such lawyer has been a material witness concerning it;
(c) the judge knows that the judge, individually or as a fiduciary, or the judge's spouse or
member of the judge's family residing in the judge's household, has a financial interest in
the subject matter in controversy or in a party to the proceeding, or any other interest that
could be substantially affected by the outcome of the proceeding;
(d) the judge or the judge's spouse, or a person within the third degree of relationship to
either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be substantially affected by the
outcome of the proceeding;
(iv) is to the judge's knowledge likely to be a material witness in the proceeding;
(2) Recusal of Judges from Lawsuits Involving Major Donors. A party may file a motion
to recuse a judge based on the fact that an opposing party or counsel of record for that
party is a major donor to the election campaign of such judge. Such motions will be filed,
considered and subject to appellate review as provided for other motions for recusal.
Mississippi Attorney General’s opinions:
Standard for recusal.
“If a reasonable person might question the judge’s impartiality in a particular case, then
the judge should recuse himself from that case.” Op. Atty. Gen. Littleton, Oct. 24, 2003.
If municipal judge files the criminal affidavit.
“A municipal judge may file a criminal affidavit with the municipal court and must then
recuse himself from the case. Another municipal judge may hear the case, or the
municipal judge may transfer the case to the justice court.” Op. Atty. Gen. Thomas,
January 10, 2003.
Canon 3F Remittal of disqualification:
A judge who may be disqualified by the terms of Section 3E may disclose on the record
the basis of the judge's possible disqualification and may ask the parties and their lawyers
to consider, out of the presence of the judge, whether to waive disqualification. If
following disclosure of any basis for disqualification other than personal bias or prejudice
concerning a party, the parties and lawyers, without participation by the judge, all agree
that the judge should not be disqualified, and the judge is then willing to participate, the
judge may participate in the proceeding. The agreement shall be incorporated in the
record of the proceeding.
See also Banana v. State, 635 So. 2d 851, 853 (Miss. 1994) (“As indicated in the
transcript, Banana was given the opportunity to object to Judge Montgomery sitting as his
judge, but instead conferred with his defense counsel and specifically waived any
objections. Banana also waived this issue by entering his voluntary plea of guilty. Banana
has failed to advance any reasoning in support of the position that this issue cannot be
waived.”); McDonald v. State, 784 So. 2d 261, 265 (Miss App. 2001) (“This Court finds
that waiver to have been effective under Banana v. State, 635 So.2d 851, 852
(Miss.1994). However, this Court believes that the better reasoned approach would have
been to recuse and avoid even the appearance of conflict.”).
§ 21-23-7 Transfers to justice court:
(12) A municipal court judge shall not dismiss a criminal case but may transfer the case
to the justice court of the county if the municipal court judge is prohibited from presiding
over the case by the Canons of Judicial Conduct and provided that venue and jurisdiction
are proper in the justice court. Upon transfer of any such case, the municipal court judge
shall give the municipal court clerk a written order to transmit the affidavit or complaint
and all other records and evidence in the court's possession to the justice court by certified
mail or to instruct the arresting officer to deliver such documents and records to the
justice court. There shall be no court costs charged for the transfer of the case to the
justice court.
Mississippi Attorney General’s opinions:
Transferred case treated as if originally filed in justice court.
“Once a case has been transferred from municipal court to justice court, the case is treated
as though it were originally filed in justice court.” Op. Atty. Gen. Oden, November 14,
2011.
Transfer of felony cases to justice court.
“Section 21-23-7(12) of the Mississippi Code provides for the transfer of criminal cases
from municipal court to justice court. It does not distinguish between misdemeanor and
felony cases. Therefore, a municipal judge can transfer felony cases to justice court. . . . In
justice court the defendant would be entitled to an initial appearance and a preliminary
hearing under the same guidelines as if the case originated in justice court.” Op. Atty.
Gen. Mullen, June 10, 2005.
Justice court may not refuse proper transfer.
“[A] justice court may not refuse the transfer of a case from municipal court as
contemplated by Section 21-23-7(12) unless proper venue and jurisdiction do not exist.
Any such case that is transferred from municipal court to justice court should be treated
as if the case were originally filed in justice court.” Op. Atty. Gen. Via, May 18, 2001.
When municipal court judge may transfer a case to justice court.
“[O]nce a case is filed in municipal court, a municipal court judge may not transfer a case
from municipal court to justice court unless the Canons of Judicial Conduct prohibit him
from presiding over the case or there is some other jurisdictional problem. If the case is
transferred as a result of the municipal court judge recusing himself, that same judge may
not hear the case while serving as justice court judge.” Op. Atty. Gen. Griffith, December
8, 2000.
Justice court has total jurisdiction of transferred case.
“[O]nce a case has been transferred from municipal court to justice court, the justice court
has total jurisdiction over the case and it is the responsibility of the county prosecutor to
prosecute the case. . . . The justice court clerk is responsible for issuing all process in the
case and collecting any fine that may be imposed. The county would be entitled to any
fine money collected from such a case.” Op. Atty. Gen. Prewitt, May 1, 2000.
204 SEPARATION OF POWERS
Art. 1 § 1 Separate magistracies:
The powers of the government of the State of Mississippi shall be divided into three
distinct departments, and each of them confided to a separate magistracy, to-wit: those
which are legislative to one, those which are judicial to another, and those which are
executive to another.
Art. 1 § 2 Separate powers:
No person or collection of persons, being one or belonging to one of these departments,
shall exercise any power properly belonging to either of the others. The acceptance of an
office in either of said departments shall, of itself, and at once, vacate any and all offices
held by the person so accepting in either of the other departments.
See also Myers v. City of McComb, 943 So. 2d 1, 6 (Miss. 2006) (“As recently as 1984,
this Court again made it abundantly clear that Sections 1 and 2 are to be applied to
municipalities and the persons or collection of persons which compose the same.”); In re
Grant, 631 So. 2d 758, 763 (Miss. 1994) (“It is our determination that there is an
incompatibility in the functions of the offices of mayor and judge which prevents one
person acting in both capacities. The test of incompatibility involves a determination of,
whether there is some inherent inconsistency in the nature of the duties of the two offices,
so that both cannot be administered by the same person.”).
A municipal court judge is a member of the judicial branch of government and, therefore,
would be prohibited from serving as:
• a municipal code enforcement officer. See Op. Atty. Gen. O’Reilly-Evans,
December 27, 2011 (“[A]n individual serving as the Municipal Code Enforcement
Officer, Zoning Administrator and Building and Permit Official, would, by
operation of law, vacate those positions upon taking the oath of office of justice
court judge.”).
• a police department investigator. See Op. Atty. Gen. Yarborough, July 20, 2011
(“If the [police department] investigator is elected to the office of justice court
judge and takes the oath of office he, by operation of law, vacates his position of
investigator.”).
• an alderwoman. See Op. Atty. Gen. Sandifer, March 21, 2011 (“A person may not
serve simultaneously as an alderwoman, which is in the legislative branch and as a
justice court judge which is in the judicial branch.”).
• a commission member within the executive branch of government. See Op. Atty.
Gen. Belk, June 30, 2006 (“[A] Municipal Court Judge would be violating the
separation of powers doctrine by serving on the Indianola Historic Preservation
Commission.”).
• a county prosecutor. See Op. Atty. Gen. Ready, August 8, 2005 (“It would be a
violation of the separation of powers doctrine . . . for a county prosecuting
attorney to simultaneously serve as a municipal court judge, . . . .”).
• a youth court prosecutor. See Op. Atty. Gen. Littleton, March 14, 2003 ([A]
municipal court judge is in the judicial branch of government and a youth court
prosecutor is in the executive branch of government, thereby making the holding
of both offices simultaneously [is] a violation of the separation of powers doctrine
. . . .”).
• a state representative or senator. See Op. Atty. Gen. Reeves, Jan. 18, 1989 (“Art.
1, Section 2 of the Mississippi Constitution of 1890 would prohibit an individual
serving in the Mississippi Legislature as a Representative or Senator from serving
as a . . . Municipal Court Judge.”).
• a county attorney. See Op. Atty. Gen. McLean, Nov. 3, 1987 (“[H]olding [the]
positions of municipal court judge and county attorney simultaneously . . . is
prohibited by the separation of powers doctrine.”).
205 JUDICIAL IMMUNITY
Mississippi recognizes the doctrine of judicial immunity:
For it is a general principle of the highest importance to the proper
administration of justice that a judicial officer, in exercising the authority
vested in him, shall be free to act upon his own convictions, without
apprehension of personal consequences to himself. Liability to answer to
every one who might feel himself aggrieved by the action of the judge,
would be inconsistent with the possession of this freedom, and would
destroy that independence without which no judiciary can be either
respectable or useful.
Bradley v. Fisher, 80 U.S. 335, 347 (1871).
See also, Loyacono v. Ellis, 571 So. 2d 237, 238 (Miss.1990) (“This Court fully
recognizes that the best interests of the people and public order require that judges be
immune from civil liability.”); Dewitt v. Thompson, 7 So. 2d 529, 531 (Miss. 1942)
(citing Bradley with approval).
The key factor in determining whether judicial immunity exists is “whether at the time
[the judge] took the challenged action he had jurisdiction over the subject matter before
him.” See Stump v. Sparkman, 435 U.S. 349, 356 (1978); Wheeler v. Stewart, 798 So. 2d
386, 392 (Miss. 2001).
In other words,
The rule makes the liability depend upon the jurisdiction, using the latter
word not as applicable to a case of mistaken exercise of a doubtful
jurisdiction, but when under the pleadings and admitted or clearly proven
facts there could be no possible jurisdiction.
Kitchens v. Barlow, 164 So. 2d 745, 750 (Miss. 1964).
But other remedies are available:
If someone believes a judge has acted either contrary to or in excess of her
authority, the primary remedy is to file a complaint with the Mississippi
Commission on Judicial Performance.
Mississippi Commission of Judicial Performance v. Russell, 691 So. 2d 929, 947
(Miss.1997); Vinson v. Prather, 879 So. 2d 1053, 1057 (Miss. Ct. App. 2004).
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CHAPTER 3
MUNICIPAL CLERK
300 APPOINTMENT OR ELECTION OF CLERKS
Determined by the form of government
Oath of office
Validity of official acts
301 REQUIRED BONDS OF CLERKS
If appointed municipal clerk
If under a code charter
If under a mayor-council form of government
Deputy city clerks
302 TRAINING AND EDUCATIONAL REQUIREMENTS
303 CLERK OF THE MUNICIPAL COURT
Clerk of the court and deputy clerks
Duties
Not necessary to docket “traffic misdemeanors”
Collecting state assessments
304 AUDITOR OF THE MUNICIPALITY
305 MUNICIPAL REGISTER
Registration to conform to the county registration
Clerk may register applicants as county electors
Information provided to the circuit court
County registrar’s responsibilities on the application
306 DEPUTY REGISTRAR OF ELECTIONS
307 EX-OFFICIO TREASURER
308 RECORDS TO BE KEPT
Municipal court docket
Semiannual reports to the AOC
Claims docket
Municipal docket
Ordinance records
Minute records and seal
Budgetary records
Expenditure records as prescribed by the State Auditor
Records of payments on assessments
309 OTHER DUTIES OF CLERKS
Giving notice by publication of assessment roll
Giving notice of redemption from sale of taxes
Certifying appointments to fill vacancies
Entering assessments of property escaping taxation
Depositing excess receipts for revenues
Receiving and processing written applications for redemptions
Notifying claimants on adjustments to motor vehicle assessments
Entering on the assessment rolls any tax lands contracted for sale
Demanding repayment of funds for bonds
Receiving certificates appointing urban renewal commissioners
Receiving written acceptance of trusts under Titles 59 and 65
Issuing permits for going out of business sales
310 PUBLIC RECORDS ACCESS
Administrative order
Short title
Policy
“Public body” defined
“Public records” defined
Adopting reasonable written procedures
When a written explanation is required
Redaction of exempt materials
Denials to be kept on file
Fees on providing records
Confidential commercial or financial information
Use of sensitive software
Exempted or privileged records
Exempted information regarding persons with a weapons permit
Exemption of court personnel information; victim information
Proceedings to compel public access
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300 APPOINTMENT OR ELECTION OF CLERKS
Determined by the form of government:
C Code charters: “From and after July 1, 2017, the governing authorities of the
municipality shall appoint a city or town clerk who shall likewise serve as an
officer of the municipality. . . . [T]he person appointed thereto shall hold office at
the pleasure of the governing authorities and may be discharged by such
governing authorities at any time, either with or without cause, and it shall be
discretionary with the governing authorities whether or not to require such person
appointed thereto to reside within the corporate limits of the municipality in order
to hold such office.” Miss. Code Ann. § 21-3-3.
C Commission form of government: The council has the power to create, fill or
discontinue any and all offices including the office of the municipal clerk. Any
clerk appointed serves at the pleasure of the council. See Miss. Code Ann. §
21-5-9.
C Council form of government: The council elects, by a majority vote of its entire
membership, a municipal clerk and one or more deputy clerks. All clerks serve at
the pleasure of the council and may be removed at any time for cause. Before
removal, a clerk must be given an opportunity for a hearing on the reasons for
removal. See Miss. Code Ann. § 21-7-15.
C Mayor-council form of government: The council must appoint a clerk of the
council and deputy clerks who are required to compile the minutes and records of
its proceedings, its ordinances and resolutions, and perform such duties as may be
required by law. See Miss. Code Ann. § 21-8-13.
C Council-manager plan of government: The city manager must appoint all
department heads and other employees of the city, except that the council must
appoint the city attorney, the auditor, and the police chief, and may, in its
discretion, appoint the city clerk and treasurer. See Miss. Code Ann. § 21-9-29.
Art. 14, § 268 Oath of office:
All officers elected or appointed to any office in this state, except judges and members of
the legislature, shall, before entering upon the discharge of the duties thereof, take and
subscribe the following oath: “I, __________, do solemnly swear (or affirm) that I will
faithfully support the Constitution of the United States and the Constitution of the State
of Mississippi, and obey the laws thereof; that I am not disqualified from holding the
office of __________; that I will faithfully discharge the duties of the office upon which I
am about to enter. So help me God.”
Mississippi Attorney General’s opinions:
Swearing in of newly appointed officials.
“[N]ewly appointed officials must be sworn in on or before the day of the commencement
of their terms of office, . . . .” Op. Atty. Gen. Prewitt, May 18, 2001.
§ 25-1-37 Validity of official acts
The official acts of any person in possession of a public office and exercising the
functions thereof shall be valid and binding as official acts in regard to all persons
interested or affected thereby, whether such person be lawfully entitled to hold the office
or not and whether such person be lawfully qualified or not; but such person shall be
liable to all the penalties imposed by law for usurping or unlawfully holding office, or for
exercising the functions thereof without lawful right or without being qualified according
to law.
See also Oliver v. State, 2019 WL 192339 (Miss. Ct. App. 2019) (“Here, Officer Moak
was sworn in by a justice court judge to fulfill the duties of a justice court deputy clerk in
June 2015. “One who holds office under the color of appointment and discharges the
purported duties of officer in full view of public, without being an intruder or usurper, is
at least a de facto official.” Amerson v. State, 648 So.2d 58, 61 (Miss. 1994).
Accordingly, we find that Deputy Moak was acting as a de facto officer and possessed the
requisite authority to administer the oath and swear to the charging affidavit. Therefore,
any defects that may have existed in the appointment of Deputy Moak did not negate that
Deputy Moak was acting under the color of appointment at the time he issued Oliver's
affidavit.”).
301 REQUIRED BONDS OF CLERKS
§ 21-15-38 If appointed municipal clerk:
Before any person appointed to the position of municipal clerk, city manager, municipal
administrator or municipal chief administrative officer enters upon the discharge of his
duties, he shall give bond, with sufficient surety, to be payable, conditioned and approved
as provided by law, in an amount to be determined by the municipal governing authority
(which shall not be less than Fifty Thousand Dollars ($50,000.00)).
§ 21-3-5 If under a code charter:
The municipal governing authorities shall require all officers and employees handling or
having the custody of any public funds of such city to give bond, with sufficient surety, to
be payable, conditioned and approved as provided by law, in an amount to be determined
by the governing authority (which shall be not less than Fifty Thousand Dollars
:
($50,000.00)), the premium on same to be paid from the municipal treasury.
§ 21-8-23 If under a mayor-council form of government:
(6) The council shall also require all officers and employees handling or having the
custody of any of the public funds of such municipality to give bond, with sufficient
surety, to be payable, conditioned and approved as provided by law, in an amount to be
determined by the council (which shall not be less than Fifty Thousand Dollars
($50,000.00)), the premium on which bonds shall be paid by the city.
§ 21-15-23 Deputy city clerks:
Every deputy city clerk, before entering upon the duties of his office, shall take and
subscribe the same oath required of the city clerk. The appointment of said deputy city
clerk, with the certificate of the oath, shall be filed and preserved in the office of the clerk
of the governing authorities of such city. Such deputy city clerk shall give bond, with
sufficient surety, to be payable, conditioned and approved as provided by law, in an
amount to be determined by the governing authority (which shall be not less than Fifty
Thousand Dollars ($50,000.00)).
302 TRAINING AND EDUCATIONAL REQUIREMENTS
§ 21-23-12 Required training and education:
(1) Every person appointed as clerk of the municipal court shall be required annually to
attend and complete a comprehensive course of training and education conducted or
approved by the Mississippi Judicial College of the University of Mississippi Law Center.
Attendance shall be required beginning with the first training seminar conducted after
said clerk is appointed.
(2) The Mississippi Judicial College of the University of Mississippi Law Center shall
prepare and conduct a course of training and education for municipal court clerks of the
state. The course shall consist of at least twelve (12) hours of training per year. After
completion of the first year's requirement, a maximum of six (6) hours training, over and
above the required twelve (12) hours, may be carried forward from the previous year. The
content of the course of training and when and where it is to be conducted shall be
determined by the judicial college. A certificate of completion shall be furnished to those
municipal court clerks who complete such course, and each certificate shall be made a
permanent record of the minutes of the board of aldermen or city council in the
municipality from which the municipal clerk is appointed.
(3) Upon the failure of any person appointed as clerk of the municipal court to file the
certificate of completion as provided in subsection (2) of this section, within the first year
of appointment, such person shall then not be allowed to carry out any of the duties of the
office of clerk of the municipal court and shall not be entitled to compensation for the
period of time during which such certificate remains unfiled.
(4) After August 1, 2015, and each year thereafter, the Administrative Office of Courts
shall notify the judicial college of the name of any municipal court clerk who has not
complied with the requirements of Section 9-1-46. The Mississippi Judicial College shall
not provide such clerk with a certificate of completion of course work until such time that
the Administrative Office of Courts has reported that the clerk is in compliance with the
requirements of Section 9-1-46. Further, the Administrative Office of Courts shall report
the names of all noncompliant clerks to the State Auditor and to the mayor of the
municipality that employs the clerk.
Mississippi Attorney General’s opinions:
Mandatory training of clerks.
“Section 21-23-12 of the Mississippi Code provides for mandatory training of “every
person appointed as clerk of the municipal court”. Subsection 21-23-12(3) provides the
consequences for a clerk failing to complete the required training . . . .”
Op. Atty. Gen. Meyers, January 7, 2011.
Consequences for failing to receive training.
“Failure of the clerk to receive the required training would prohibit the clerk from
performing any of the duties of the job from receiving any compensation until the training
is completed. Upon finding that the statute has not been complied with, the governing
authorities should suspend the clerk without pay until the clerk complies with the
requirements. Continued payments to an unqualified clerk should be reported to the State
Auditor.” Op. Atty. Gen. Kossman, March 9, 2001.
303 CLERK OF THE MUNICIPAL COURT
§ 21-23-11 Clerk of the court and deputy clerks:
The clerk of the municipality shall be the clerk of the municipal court, unless the
governing authorities shall otherwise elect. The clerk of the court shall attend the sittings
of the court in person or by duly appointed deputies, and he shall be under the direction of
the municipal judge. The governing authorities may authorize the municipal judge to
appoint other municipal employees as deputy clerks of the court to assist the clerk of the
court in the conduct of the court's responsibilities or the governing authorities may
appoint deputy clerks of the court. The authorization to appoint and/or appointment of
deputy clerks of the court shall be entered in the minutes of the municipality. A police
officer of the municipality may be the clerk of the court or a deputy clerk of the court.
The governing authorities shall provide for the training of court personnel.
Mississippi Attorney General’s opinions:
Judge may exclude clerk from courtroom during judicial proceedings.
“The judge [pursuant to Section 21-23-11] has the authority to prohibit the clerk from
being present in the courtroom during judicial proceedings.” Op. Atty. Gen. Manley,
September 9, 2011.
Clerks and deputy clerks under the direction of municipal judge.
“Pursuant to . . . Section 21-23-11, the clerk and deputy clerks assigned by the governing
authorities or appointed by the municipal judge are under the direction of the municipal
judge.” Op. Atty. Gen. Meyers, January 7, 2011.
If serving as both justice court clerk and municipal court clerk.
“[W]e find no prohibition against a justice court clerk also serving as a municipal court
clerk for a city in the same county. Of course, the employee may not be paid by one entity
while performing services for the other.” Op. Atty. Gen. Lumpkin, August 18, 2000.
§ 21-23-11 Duties:
The clerk of the court shall attend the sittings of the court in person or by duly appointed
deputies, and he shall be under the direction of the municipal judge.
. . .
The clerk of the court shall keep permanent dockets, upon which all cases shall be
entered; said docket shall contain the style of the case and the nature of the charge against
an accused, and the names of witnesses for the prosecution and defendant.
The clerk of the court shall also keep a minute record in which all orders and judgments
shall be entered. One (1) record may serve as both the docket record and minute record.
The clerk of the court or deputy clerk of the court shall issue all process from the court,
except arrest warrants or process for the seizure of persons and property, and shall
administer the collection of all fines, penalties, fees and costs imposed by the court and
deposit all collections with the municipal treasurer or equivalent officer.
The clerk of the court shall purchase all dockets, minute record, stationery and other
supplies for the municipal court, and have the account allowed by the municipal judge;
the order allowing the same shall be entered upon the minutes, and the municipal
authorities shall pay the same.
The clerk of the court and deputy clerks of the court shall have power to take
acknowledgments, administer any oaths required by law to be taken by any person, and
take affidavits charging any crime against the municipality or state.
Mississippi Attorney General’s opinions:
Certain collection responsibilities non-assignable.
“[A] probation service may not be assigned the responsibility to collect non-delinquent
fines owned by individuals not on probation. [Section 21-23-11] provides in part, “and
[the clerk] shall administer the collection of all fines, penalties, fees and costs imposed by
the court and deposit all collections with the municipal treasurer or equivalent officer.”
Op. Atty. Gen. Arnold, March 19, 2010.
Records of municipal court are public records.
“The records of the municipal court are public records and must be provided to the
governing authorities, if requested.” Op. Atty. Gen. Smith, March 3, 2006.
Keeping original affidavits and copies for felony cases.
“[T]he municipal court clerk [under Section 21-23-11] should keep the original affidavits
and copies of warrants for felony cases in the office of the court clerk and may make
copies for the investigators.” Op. Atty. Gen. Hutcherson, November 17, 2000.
Clerk’s responsibility to secure records.
The municipal court clerk is responsible [under Section 21-23-11] for preserving the
records of the court and maintaining them in the municipal court clerk's office. The
municipal court clerk must make sure that the court records in a computer data base are
secure and that unauthorized persons do not have access to the records. Op. Atty. Gen.
Carroll, September 8, 2000.
Orders and judgments contained in the minute record.
Since the minute record contains all orders and judgments from the municipal court, it is
imperative that the municipal court judge sign such orders and judgments.
Op. Atty. Gen. Rook, July 24, 2000.
Judge may correct clerical errors.
“We do not find anything in the statutes governing municipal courts which would
prohibit a municipal judge from correcting an error in the municipal court docket to
reflect the actual proceedings of that court, or directing the municipal court clerk to do so.
This power would not extend past that individual's term in office.” Op. Atty. Gen. Null,
June 23, 2000.
§ 99-19-3 Not necessary to docket “traffic misdemeanors”:
(2) It shall not be necessary to enter traffic misdemeanor cases in the municipal court
docket.
(3) For the purposes of this section:
. . .
(b) The term “traffic misdemeanor” means a violation of traffic or motor vehicle laws that
do not require mandatory imprisonment upon conviction but shall not include repeat
offenders where a sentence of imprisonment is likely and shall not include charges under
the Mississippi Implied Consent Law.
§ 99-19-73 Collecting state assessments:
(10)(a) After a determination by the court of the amount due, it shall be the duty of the
clerk of the court to promptly collect all state assessments imposed under the provisions
of this section. The state assessments imposed under the provisions of this section may
not be paid by personal check.
. . .
(c) It shall be the duty of the municipal clerk of each municipality to deposit all the state
assessments collected in the municipal court in the municipality on a monthly basis with
the State Treasurer pursuant to appropriate procedures established by the State Auditor.
The municipal clerk shall make a monthly lump-sum deposit of the total state
assessments collected in the municipal court in the municipality under this section, and
shall report to the Department of Finance and Administration the total number of
violations under each subsection for which state assessments were collected in the
municipal court in the municipality during that month.
304 AUDITOR OF THE MUNICIPALITY
§ 21-15-21 Records to be kept:
The clerk shall be the auditor of the municipality. He shall keep a record, in which he
shall enter and preserve accounts of each particular fund, and the accounts of each
municipal officer. The treasurer or depository shall not receive money from any source
until the same has been reported to the clerk and audited and a receipt warrant issued
therefor. All fines and forfeitures shall be reported by the officer collecting the same
immediately after such collection, and be paid into the treasury. The record of the auditor
shall be subject to inspection by the taxpayers of the municipality at any time during
business hours.
305 MUNICIPAL REGISTER
§ 23-15-35 Registration to conform to the county registration:
(1) The clerk of the municipality shall be the registrar of voters of the municipality, and
shall take the oath of office prescribed by Section 268 of the Constitution. The municipal
registration shall conform to the county registration which shall be a part of the official
record of registered voters as contained in the Statewide Elections Management System.
The municipal clerk shall comply with all the provisions of law regarding the registration
of voters, including the use of the voter registration applications used by county registrars
and prescribed by the Secretary of State under Sections 23-15-39 and 23-15-47.
§ 23-15-35 Clerk may register applicants as county electors:
(2) The municipal clerk shall be authorized to register applicants as county electors. The
municipal clerk shall forward notice of registration, a copy of the application for
registration, and any changes to the registration when they occur, either by certified mail
to the county registrar or by personal delivery to the county registrar provided that a
numbered receipt is signed by the registrar in return for the described documents. . . . Any
and all mailing costs incurred by the municipal clerk or the county registrar in
effectuating this subsection shall be paid by the county board of supervisors.
(3) The municipal clerk shall issue to the person making the application a copy of the
application and the county registrar shall process the application in accordance with the
law regarding the handling of voter registration applications.
(4) The receipt of a copy of the application for registration sent pursuant to Section
23-15-39(3) shall be sufficient to allow the applicant to be registered as an elector in the
municipality, provided that such application is not challenged as provided for therein.
§ 21-15-35 Information provided to the circuit court:
(5) The municipal clerk of each municipality shall provide the circuit clerk of the county
in which the municipality is located the information necessary to conform the municipal
registration to the county registration which shall be a part of the official record of
registered voters as contained in the Statewide Elections Management System. If any
changes to the information occur as a result of redistricting, annexation or other reason, it
shall be the responsibility of the municipal clerk to timely provide the changes to the
circuit clerk.
§ 23-15-47 County registrar’s responsibilities on the application:
(6) If the applicant indicates on the application that he or she resides within the city limits
of a city or town in the county of registration, the county registrar shall enter the
information into the Statewide Elections Management System.
306 DEPUTY REGISTRAR OF ELECTIONS
§ 23-15-223 Appointment:
The State Board of Election Commissioners, on or before the fifteenth day of February
succeeding each general election, shall appoint in the several counties registrars of
elections, who shall hold office for four (4) years and until their successors shall be duly
qualified. The registrar is empowered to appoint deputy registrars, with the consent of the
board of election commissioners, who may discharge the duties of the registrar.
The clerk of every municipality shall be appointed as such a deputy registrar, as
contemplated by the National Voter Registration Act (NVRA).
The county registrar may not be held liable for any malfeasance or nonfeasance in office
by any deputy registrar who is a deputy registrar by virtue of his office.
307 EX-OFFICIO TREASURER
§ 21-39-19 Written reports of receipts and disbursements:
The depository of the municipality, or the clerk as ex-officio treasurer where there is no
depository, shall receive, safely keep, and pay out all moneys belonging to the
municipality according to law. The depository or clerk shall keep correct and accurate
accounts of all receipts and disbursements, and shall make a written report to the
governing authorities, at each regular meeting, of the finances of the municipality. The
depository or clerk shall perform such other duties as may be prescribed by ordinance.
The funds of the municipality shall be paid out only by virtue of an order or ordinance
duly spread on the minutes of such municipality.
308 RECORDS TO BE KEPT
§ 21-23-11 Municipal court docket:
The clerk of the court shall keep permanent dockets, upon which all cases shall be
entered; said docket shall contain the style of the case and the nature of the charge against
an accused, and the names of witnesses for the prosecution and defendant. The clerk of
the court shall also keep a minute record in which all orders and judgments shall be
entered. One (1) record may serve as both the docket record and minute record.
See also Miss. Code Ann. § 99-19-3 (“(2) It shall not be necessary to enter traffic
misdemeanor cases in the municipal court docket.”).
§ 9-1-46 Semiannual reports to the AOC:
(1) Semiannually, the circuit clerks of each county, the municipal court clerks of each
municipality, and the justice court clerks of each county shall report to the Administrative
Office of Courts the following information:
(a) Individual misdemeanor and felony case records by offense, from the circuit clerk for
all circuit and county court criminal proceedings, and from the municipal and justice
court clerks for all misdemeanors, electronically when available, containing the date on
which the criminal charges were filed, charge code and name of indicted offenses, count
number of indicted offenses, whether counsel was appointed, the disposition of the
charges, date disposed, date sentenced, charge code and name of sentenced offenses, and
sentence length.
(b) Data should be kept individually by case number and misdemeanor charges or
indicted felony offense, and include, for criminal docket purposes, demographic
information necessary for tracking individuals across multiple databases should be
collected, including date of birth, city and state of residence, race, and gender.
(2) The Administrative Office of Courts shall be empowered to establish a uniform
reporting format for all court clerks described in subsection (1) of this section. Such
reporting format shall emphasize the need for reporting information in a sortable,
electronic format. All clerks who submit required information in other formats shall
report to the Administrative Office of Courts a schedule for conversion to technology to
enable the reporting of all required data in a sortable, electronic format.
(3) Semiannual reports shall be made to the Administrative Office of Courts by December
31, 2014, or as soon thereafter as practicable, and every year thereafter, and on June 30,
2015, or as soon thereafter as practicable, and every year thereafter. On August 1, 2015,
and each year thereafter, the Administrative Office of Courts shall provide to PEER and
the Office of State Public Defender sortable, electronic copies of all reports required by
this section.
(4) The Administrative Office of Courts shall share the information required under this
section with the Oversight Task Force.
§ 21-39-7 Claims docket:
In all municipalities having a population of more than two thousand (2,000), according to
the latest federal census, and in other municipalities where the governing authorities
should so elect, it shall be the duty of the clerk of the municipality to keep as a record in
his office a record to be styled “Docket of Claims,” in which he shall enter all demands,
claims and accounts against the municipality presented to him during the month. Said
docket shall provide space for the name of the claimant, the number of the claim, the
amount of the claim, and on what account. All demands, claims and accounts allowed
against the municipality shall be preserved by the clerk as a permanent record, and shall
be numbered in such a manner as to relate to the warrants to be issued therefor, and the
said warrant issued in payment of such claim shall carry on its face a reference to the
number of the claim for which the said warrant is issued in payment. No order for the
payment or expenditures of any funds of such municipality in payment of any
indebtedness thereof shall be made in municipalities having a claim docket unless such
claim is filed as herein provided. However, this provision shall not be applicable to the
salaries or other compensation of officers or employees of such municipality where the
amount of such salary or other compensation shall have been previously fixed by the
governing authorities of the municipality in its approval of the payroll or payrolls on
which the same appears, and in case of such allowance, it will be sufficient to enter on the
claims docket the total of such payroll, followed by reference to the said payroll upon
which such allowance may be found.
§ 21-15-19 Municipal docket:
In addition to the claims docket provided for in Section 21-39-7 the clerk shall keep a
record of permanent construction to be styled “Municipal Docket,” upon which he shall
enter each subject, other than claims and accounts, to be acted upon by the governing
authorities at the next meeting. After each meeting he shall make up such docket for the
next regular meeting, and he shall examine the statutes of the state and the ordinances of
the municipality to ascertain the subjects required or proper to be acted upon at the
following meeting, and shall docket all such matters. He shall keep all such other records
as may be provided for by ordinance, and shall file in his office and preserve all records
pertaining to the business of the municipality.
§ 21-13-13 Ordinance records:
The municipal clerk shall keep a record of permanent construction, to be entitled
“Ordinances of the City, Town or Village of __________,” in which he shall enter at
length, in cases where same have not already been entered, every ordinance in force, and
every ordinance hereafter enacted immediately after its passage. Such ordinances shall be
entered in typewriting, or in a plain and distinct handwriting, and the clerk shall append to
each ordinance a note stating the date of its passage, and shall cite therein the record and
page of the minutes containing the record of its passage. All ordinances which have been
previously passed by any municipality which are not so entered in the ordinance record,
and all ordinances hereafter passed which are not entered in the ordinance record, shall be
void and of no effect. The ordinances which are to be recorded in such ordinance record
are those which are in their nature laws of the municipality, and are not mere resolutions,
orders or decrees of a temporary nature. It shall be the duty of the municipal clerk to keep
the ordinance record indexed alphabetically.
See also Miss. Code Ann. § 21-13-17 (“Whenever in any judicial proceeding it shall be
necessary to prove the existence of any municipal ordinance, a copy of such ordinance,
certified to by the clerk of the municipality, or the ordinance book in which such
ordinance is entered, may be introduced in evidence, and shall be prima facie evidence of
the existence of such ordinance and that the same was adopted and published in the
manner provided by law.”).
§ 21-15-17 Minute records and seal:
It shall be the duty of the clerk of every municipality within the State of Mississippi to
keep a record of permanent construction to be labeled “Municipal Minutes, City (or Town
or Village, as the case may be) of __________,” in which he shall record the proceedings
and all orders and judgments of the governing authority of said municipality, and to keep
the same fully indexed alphabetically, so that all entries on said minutes can be easily
found. Said clerk shall likewise record in said minute record all ordinances in full, or in
lieu thereof, the title of all ordinances. In either case, however, the ordinances in full shall
be recorded in the ordinance record provided for in Section 21-13-13, to be kept by said
clerk.
In the event only the titles of ordinances are recorded in the minute record, it shall be
necessary that the ordinance in full, after the recordation in the ordinance record, be read,
verified and subscribed to by the mayor and clerk at the next regular meeting of the
governing authority of the municipality.
All official actions of the governing authorities of a municipality shall be evidenced only
by official entries duly recorded on such minute record.
The clerk shall be the custodian of the municipal seal, and each municipality shall adopt
and provide a seal.
Budgetary records:
§ 21-35-11
The clerk of the municipality shall open and keep a regular set of records, as prescribed
by the State Auditor, as the head of the State Department of Audit, or the director thereof,
appointed by him, as designated and defined in Title 7, Chapter 7, of the Mississippi
Code of 1972, or any office or officers hereafter designated to replace or perform the
duties imposed by said chapter, of each and every fund of the municipality, subject
always to inspection within office hours by any citizen desiring to inspect the same. Said
records shall contain accounts, under headings, corresponding with the several headings
of the budget, so that the expenditures under each head may be at once known, and the
purpose for which expended, and said records shall show the source of all monies
received and paid into each fund of the municipality. Said records shall be paid for out of
the general municipal fund, upon the order of the proper municipal authorities.
For failure to perform any duty herein required, said clerk shall be subject to suit on his
bond for any damage which the municipality may sustain by reason of such failure. Such
suit, or suits, shall be brought by the city attorney or by any attorney designated and
empowered to do so by the proper governing authorities of such municipality.
§ 21-35-13
At the regular meeting in each month, the city clerk shall submit to the governing
authorities of the municipality a report showing the expenditures and liabilities incurred
against each separate budget appropriation item during the preceding calendar month, and
like information for the whole of the fiscal year to the first day of the month in which
such report is made, together with the unexpended balance of each appropriation item and
the unencumbered balance. He shall also set forth the receipts from property taxes and, in
detail, the receipts from other taxes and all other sources of each fund for the same
period.
§ 21-35-17
Expenditures made, liabilities incurred, or warrants issued in excess of any of the budget
detailed appropriations as originally and finally determined, or as thereafter revised by
transfer as provided by this chapter, shall not be a liability of the municipality, but the
official making or incurring such expenditure or issuing such warrant shall be liable
therefor personally and upon his official bond. The governing authorities shall not
approve any claim and the city clerk shall not issue any warrant for any expenditure in
excess of said detailed budget appropriations as finally adopted, or as revised under the
provisions of this chapter, except upon an order of a court of competent jurisdiction or for
an emergency, as provided in this chapter. Any one or more of the governing authorities,
or clerk, approving any claim or issuing any warrant in excess of any such budget
appropriation, except as above provided, shall forfeit to the municipality twice the
amount of such claim or warrant, which shall be recovered in an action against such
member, or members, of the governing authorities, or clerk, or all of them, and the
several sureties on their official bonds, and it shall be the duty of the governing
authorities of such municipality, or the State Auditor, as the head of the State Department
of Audit, or the director thereof, appointed by him, or any taxpayer of such municipality,
to bring an action therefor through the city attorney, or any attorney designated and
empowered so to do by a court of competent jurisdiction. Provided, however, that the
term “budgeted expenditures” for purposes of personal liability of members of the local
governing authorities under this section shall not include any unfunded liability for
municipal employee retirement or pension funds. Nothing in this section shall diminish
any responsibility of the members of the local governing authorities to fund any employee
retirement or pension plans, or any liability as a result of any failure to fund such plans as
otherwise required by law.
§ 21-39-5 Expenditure records as prescribed by the State Auditor:
The clerk of the municipality shall open and keep a regular set of records, as prescribed
by the State Auditor, as the head of the State Department of Audit, or the director thereof,
appointed by him, as designated and defined in Title 7, Chapter 7, of the Mississippi
Code of 1972, or any office or officers hereafter designated to replace or perform the
duties imposed by said chapter, subject always to inspection within office hours by any
citizen desiring to inspect the same. Said records shall contain accounts, under headings,
corresponding with the several headings of the budget, so that the expenditures under
each head may be at once known. Such records shall be paid for out of the general
municipal fund, upon the order of the proper municipal authorities. Said clerk shall also
mark filed, as of the date of presentation of same, each and every claim against said
municipality. He shall number the same in regular consecutive order, shall file and keep
the same in like manner, and shall safely preserve the same as records of his office.
Each year's records shall be kept separate and begin with a new number each year, and
run in regular order.
In issuing any warrant under order of the governing authorities of the municipality to pay
any one of said claims so numbered and kept, said clerk shall enter the number of the
claim in the body of the warrant so that the claim may be easily found, and so that
possible duplication may be avoided. The governing authorities of the municipality shall
designate on each allowance of a claim against the municipality the fund out of which
same shall be paid, and to what account the sums shall be charged in said records. Each
allowance shall have the number of the claim noted in the minutes of said governing
authorities.
For failure to perform any duty herein required, said clerk shall be subject to suit on his
bond for any damage which the municipality may sustain by reason of such failure. Such
suit, or suits, shall be brought by the city attorney or by any attorney designated and
empowered to do so by the proper governing authorities of such municipality.
§ 21-41-21 Records of payments on assessments:
The treasurer shall immediately report to the clerk of the municipality, or to the officer
performing the duties of such clerk, any assessment paid in full. The collector shall
annually report to the clerk of the municipality, or to the officer performing the duties of
such clerk, the installments paid in that year. The clerk of the municipality, or the officer
performing the duties of such clerk, shall note such payments on the “assessment book for
local improvements.” When an assessment is paid in full, or upon the payment of the last
installment thereof, the clerk shall note on said “assessment book for local
improvements” opposite the assessment, “paid in full.” Upon the payment of each
installment an appropriate note thereof shall be made opposite such assessment on said
book, so that the amount of the assessment against any property assessed under the
provisions of this chapter, which remains a lien upon said property may be determined by
reference to the “assessment book for local improvements.”
309 OTHER DUTIES OF CLERKS
§ 21-41-13 Giving notice by publication of assessment roll:
Upon the completion of any improvement authorized by this chapter, the governing
authorities shall ascertain and determine the cost of the improvement and declare the
same by resolution. Upon said completion the governing authorities shall cause to be
prepared a roll or list to be called the “assessment roll” showing the names of the property
owners, and, opposite each name a description of each parcel of land. Such roll shall be
entered in a well-bound book prepared for that purpose, which shall contain appropriate
columns in which payments may be credited. Said book shall be known as “assessment
book for local improvements.” It shall be a public record and the entry therein of any
assessment shall be and constitute notice to the public of the lien against the land so
assessed, and no other record or notice thereof shall be necessary to any person or
corporation for that purpose. No error, omission or mistake in regard to the name of the
owner shall be held to invalidate any assessment. After the completion of the said
assessment roll it shall be delivered to the clerk of the municipality, or to the officer
performing the duties of such clerk, who shall thereupon give a notice by publication in
some newspaper published in said municipality that the assessment roll (for that piece of
local improvement made) has been delivered to him and is open for inspection at his
office, and that at a time and place therein mentioned, not less than fifteen days from the
date of the first publication, the governing authorities of said municipality will meet to
hear and determine any objections or defense.
§ 21-41-31 Giving notice of redemption from sale of taxes:
If there exists upon a portion of a tract of land sold for delinquent assessments, a lien
either of a deed of trust or mortgage of any kind, or if a portion of a tract of land sold for
said delinquent assessments is owned by one who does not own the entire portion sold,
then, subject to the provisions herein stated, the mortgagee or holder of the notes secured
by such deed of trust, or the owner of such portion, or any person interested in such real
estate, may redeem that portion of the land so sold in solido, upon which portion such
mortgagee or owner of notes, or owner of less than the whole of the real estate is
interested, in the following manner, to-wit:
Such mortgagee, or owner of notes secured by deed of trust, owner, or other person
interested, may apply in writing to the municipal clerk within the time provided by law
for redemption from sale of taxes to be permitted to redeem such portion of such entire
tract so sold in solido in which he is interested. Upon the application being filed with
him, it shall be the duty of the municipal clerk to give ten days' notice in writing of such
application by registered mail to the last known post office address, with return receipt
requested, to the owner and to the purchaser at the tax sale, and to all persons holding
mortgages or other liens of record on the land so sold in solido, or any part thereof, which
notice shall designate a time not less than ten days from the mailing thereof when the
governing authorities of the municipality shall hear and perform the duties hereinafter
provided for. The clerk shall enter on the record of such tax sale notations giving the date
when such notices were mailed, and the names and post office addresses of persons to
whom mailed.
§ 23-15-857 Certifying appointments to fill vacancies:
(1) When there is a vacancy in an elective office in a city, town or village, the unexpired
term of which shall not exceed six (6) months, the same shall be filled by appointment by
the governing authority or remainder of the governing authority of the city, town or
village. The municipal clerk shall certify the appointment to the Secretary of State and the
appointed person or persons shall be commissioned by the Governor.
§ 27-3-39 Entering assessments of property escaping taxation:
The Commissioner of Revenue shall investigate and ascertain what property, if any, is
escaping taxation or assessment. After the first day of February should the Commissioner
of Revenue discover that any person, corporation, property, business, occupation or
calling has escaped taxation for the previous calendar year or years by reason of not being
assessed by either a county or municipality, it shall be his duty to give notice to the
county or municipal tax assessor in writing, and the assessor shall, within ten (10) days
thereafter, make the proper assessment by way of an additional assessment and file the
assessment with the clerk of the board of supervisors or the clerk of the municipality, as
the case may be, who shall enter the assessment on the last approved roll or rolls in his
hands, and the clerk shall give ten (10) days' notice in writing to the person or corporation
whose property is thus assessed, and all objections to the assessment shall be heard at the
next meeting of the board of supervisors of the county or the governing authorities of the
municipality.
§ 27-39-323 Depositing excess receipts for revenues:
Except as otherwise provided for excess revenues generated by a county in accordance
with subsection (3) of Section 27-39-321 or subsection (2) of Section 27-39-320, if
revenue collected as the result of any individual levy referred to in Section 27-39-321 or
the aggregate revenue collected from all levies referred to in Section 27-39-320 which are
limited to an increase of not more than ten percent (10%) over the receipts from the same
for any one (1) of the immediately preceding three (3) fiscal years, as determined by the
levying governing authority, exceeds such limit, then it shall be the mandatory duty of the
chancery clerk of each county and the clerk of each municipality to deposit such excess
receipts over and above the ten percent (10%) increase limitation into a special account
and credit it to the fund for which such levy was made. It will be the further duty of the
chancery clerk and the city clerk to hold said funds and invest the same as authorized by
law and to report the total to the board of supervisors or the municipal governing
authorities, as the case may be, at its regular August meeting of each year. Such excess
funds shall be calculated in the budgets for the county and for the municipality,
respectively, for the purpose for which such levies were made, for the succeeding fiscal
year. Taxes imposed for the succeeding year shall be reduced by the amount of excess
funds available.
Under no circumstances shall such excess funds be expended during the fiscal year in
which such excess funds are collected.
§ 27-45-11 Receiving and processing written applications for redemptions:
All rights and privileges and duties granted or imposed, in the preceding sections, upon
lienors or any person interested in such land with reference to redemption from tax sales
made for nonpayment of state and county taxes shall likewise apply and be applicable to
like redemptions from municipal tax sales or municipal separate school district tax sales,
and also to levee and drainage district tax sales. With reference to such redemptions, the
written application for redemption shall be addressed to the municipal clerk, or to the like
officer of the levee or drainage district, as the case may be, who shall be the official to
perform the appropriate duties and to make the necessary investigation and apportionment
of the sum necessary to redeem as to any interested lienor or any person interested in such
land who shall have the right to make application to redeem, as herein set forth.
§ 27-51-23 Notifying claimants on adjustments to motor vehicle assessments:
Any person objecting to any portion or portions of the motor vehicle assessment schedule
affecting him or her directly shall file a written objection and claim for adjustment, in
triplicate, with either the board of supervisors of the county or the municipal board of the
municipality or with both such boards, on a form to be designed and supplied by the tax
commission. The motor vehicle owner shall set forth therein in detail the grounds for his
objection and claim for adjustment, with a full and complete identifiable description of
the subject motor vehicle.
If the board of supervisors or the municipal board, as the case may be, is of the opinion
that the objection and claim for adjustment of the motor vehicle owner has sufficient
merit, then the original and duplicate copies of the said objection and claim together with
any recommendation made by either of the said governing boards shall be forwarded to
the tax commission for approval or disapproval.
If the tax commission is of the opinion that the said objection contains sufficient merit,
then the tax commission shall make whatever adjustment on such claim as in its judgment
is fair and equitable; if, on the contrary, the tax commission is of the opinion that the said
objection to the proposed assessment does not have sufficient merit then the tax
commission shall disapprove the claim. In either case, the tax commission shall return the
original copy of the objection and petition to the clerk of the board of supervisors or to
the clerk of the municipal board, as the case may be, with its action duly stated thereon.
The decision of the tax commission in disapproving such a claim shall be final as
between the board of supervisors and/or the municipal board and the tax commission, and
the clerk of the respective boards shall then notify the claimant that his adjustment claim
has been disapproved by the tax commission.
A petition for adjustment originating in either the county or a municipality of the county,
if approved by the tax commission, shall become effective, as approved, in both
jurisdictions, and in cases where the county tax collector does not collect said taxes for
the municipality, then it shall be the duty of the clerk of the jurisdiction in which the
claim for adjustment originated to officially notify the tax collector of the other
jurisdiction, by citing the minute record of such action and properly identifying the
subject motor vehicle.
If the tax commission approves a claim for the reduction of a proposed assessed value of
any specific motor vehicle, then upon receipt of such notice by the clerk of the board of
supervisors of the county or by the clerk of the municipal board, as the case may be, a
minute record shall be made and a certified copy of such action shall be furnished the tax
collector, and in making his report, the tax collector shall cite on the ad valorem tax
receipt and in his report the minute book and page as legal reason for such reduction in
assessed value on any such motor vehicle. Under no circumstances shall a tax collector
vary from the said adopted assessment schedule in calculating and collecting motor
vehicle ad valorem taxes unless such petition for reduction has been approved by the tax
commission, and the tax collector has filed in his custody written official authority
therefor from the clerk of the respective board, and evidence of such action is cited as
hereinabove provided. An adjustment of the proposed assessed value of one or more
motor vehicles of a certain group or class, under this procedure, shall not affect the
proposed assessed value of other motor vehicles of the same group or class.
Any taxpayer dissatisfied with any portion of the assessment schedule directly affecting
him may pay the resulting tax under protest and sue for recovery of all or any portion of
the tax paid, provided that he requests the tax collector to indicate on the tax receipt at the
time the tax is paid that the said tax is being paid under protest. This recourse is available,
however, only to the taxpayer who filed objection and adjustment claim to the proposed
assessment during the time set for filing such objection, as provided hereinabove,
excepting in cases where the cause for such protest originated subsequent to the time for
filing such protest.
§ 29-1-43 Entering on the assessment rolls any tax lands contracted for sale:
When any contract for the sale of state forfeited tax lands shall be made, as provided in
section 29-1-39, such lands shall then become taxable in all respects and to the same
extent and in like manner as where patents are issued, except that such lands under
contract for sale shall not be sold for taxes while the state is the holder of the legal title. It
shall be the duty of the land commissioner to give notice in writing to the clerk of the
chancery court of the county in which the land is situated, and likewise the clerk of the
municipality if such land be situated in a municipality, that such land is under contract for
sale, giving the name of the purchaser and the price. The chancery clerk, and the
municipal clerk where the land is located in a municipality, shall file said notices and
enter the land upon the assessment rolls and shall clearly designate that such land is
public land which has been contracted for sale. Such land shall thereupon be assessed for
taxes as other lands are assessed, and the tax collector of the county, and the municipality
where said land is located in a municipality, shall collect the taxes thereon as in cases of
additional assessments, as provided by section 29-1-83, with reference to patents.
See also Miss. Code Ann. § 29-1-45 (addressing procedures if contract canceled by
secretary of state for a delinquency in payment of taxes on the land).
§ 31-17-59 Demanding repayment of funds for bonds:
In like manner, it shall be the duty of the clerk of the board of supervisors of each county
and of the municipal clerk of each municipality, within sixty days after the close of each
fiscal year, to check the bond register and other records in his office and ascertain
definitely the amount of bonds and interest coupons of the county, any taxing district, or
of the municipality, as the case may be, which have matured more than twelve months
before the close of the last fiscal year and which have not been paid; and if it shall appear
that funds for the payment of such bonds and coupons have been forwarded to the paying
agent and have not been used for the purpose of paying such bonds and coupons, it shall
be the duty of the clerk of the board of supervisors, or the municipal clerk, as the case
may be, to make demand upon the paying agent for the repayment of said funds into the
county depository or municipal depository, as the case may be, within thirty days from the
date of such demand.
§ 43-35-33 Receiving certificates appointing urban renewal commissioners:
(c) A commissioner shall receive no compensation for his services but shall be entitled to
the necessary expenses, including traveling expenses, incurred in the discharge of his
duties. Each commissioner shall hold office until his successor has been appointed and
has qualified. A certificate of the appointment or reappointment of any commissioner
shall be filed with the clerk of the municipality and such certificate shall be conclusive
evidence of the due and proper appointment of such commissioner.
Receiving written acceptance of trusts under Titles 59 and 65:
Trustees appointed under Title 59 (i.e., ports, harbors, landing and watercraft) pursuant to
§ 59-7-323, § 59-7-429, or § 59-15-19 must file a written acceptance of such trust with
the municipal clerk. Trustees appointed under Title 65 (i.e., highways, bridges and
ferries) pursuant to § 65-29-15 must do the same.
§ 75-65-3 Issuing permits for going out of business sales:
(1) No person shall advertise or offer for sale a stock of goods, wares or merchandise
under the description of closing-out sale, or a sale of goods, wares or merchandise
damaged by fire, smoke, water or otherwise, unless he first shall have obtained a permit
to conduct such sale from the chancery clerk of the county in which such sale is to take
place; or if such sale is to take place within a municipality, said person shall apply for and
procure such permit from the city clerk of the municipality. The applicant for such permit
shall make to such clerk an application therefor in writing and under oath at least fourteen
days prior to the opening date of sale, showing all the facts relating to the reasons and
character of such sale, including the opening and terminating dates of the proposed sale, a
complete inventory of the goods, wares, or merchandise actually on hand in the place
where such sale is to be conducted, and all details necessary to locate exactly and identify
fully the goods, wares or merchandise to be sold; providing, however, that an application
for a sale of goods, wares or merchandise damaged by fire, smoke, water or otherwise
may be obtained within three (3) days prior to the opening date of the sale. The
terminating date of such proposed sale shall be no later than seventy-five (75) days
immediately following the date of such permit application.
(2) If such clerk shall be satisfied from said application that the proposed sale is of the
character which the applicant desires to advertise and conduct, he shall issue a permit
upon the application therefor, together with a bond, payable to the city, village or town in
the penal sum of one thousand dollars ($1,000.00), conditioned upon compliance with
sections 75-65-1 to 75-65-17, to the applicant authorizing him to advertise and conduct a
sale of the particular kind mentioned in the application. Any merchant who shall have
been conducting a business in the same location where the sale is to be held for a period
of not less than one (1) year, prior to the date of holding such sale, shall be exempted
from the filing of the bond herein provided.
(3) Every city, town or village clerk to whom application is made shall endorse upon such
application the date of its filing, and shall preserve the same as a record of his office, and
shall make an abstract of the facts set forth in such application, and shall indicate whether
the permit was granted or refused.
(4) Any person making a false statement in the application provided for in this section
shall, upon conviction, be deemed guilty of perjury.
310 PUBLIC RECORDS ACCESS
Administrative order:
The Mississippi Supreme Court adopted by Administrative Order on August 27, 2008 a
“Statement of Policy Regarding Openness and Availability of Public Records.” This
administrative order can be accessed on the State of Mississippi Judiciary website at
https://courts.ms.gov/publicrecords_policy.pdf
§ 25-61-1 Short title:
This chapter shall be known and may be cited as the “Mississippi Public Records Act of
1983.” It is the policy of the Legislature that public records must be available for
inspection by any person unless otherwise provided by this act [Laws 1996, Ch. 453].
Furthermore, providing access to public records is a duty of each public body and
automation of public records must not erode the right of access to those records. As each
agency increases its use of and dependence on electronic record keeping, each agency
must ensure reasonable access to records electronically maintained, subject to the rules of
records retention.
See also Estate of Cole v. Ferrell, 163 So. 3d 921, 925 (Miss. 2012) (“Court filings are
considered to be public records, unless otherwise exempted by statute.”).
§ 25-61-2 Policy:
It is the policy of this state that public records shall be available for inspection by any
person unless otherwise provided by this chapter; furthermore, providing access to public
records is a duty of each public body and automation of public records must not erode the
right of access to those records. As each public body increases its use of, and dependence
on, electronic record keeping, each public body must ensure reasonable access to records
electronically maintained, subject to records retention.
§ 25-61-3 “Public body” defined:
The following words shall have the meanings ascribed herein unless the context clearly
requires otherwise:
(a) “Public body” shall mean any department, bureau, division, council, commission,
committee, subcommittee, board, agency and any other entity of the state or a political
subdivision thereof, and any municipal corporation and any other entity created by the
Constitution or by law, executive order, ordinance or resolution. The term “public body”
includes the governing board of a charter school authorized by the Mississippi Charter
School Authorizer Board. Within the meaning of this chapter, the term “entity” shall not
be construed to include individuals employed by a public body or any appointed or
elected public official.
§ 25-61-3 “Public records” defined:
The following words shall have the meanings ascribed herein unless the context clearly
requires otherwise:
. . .
(b) “Public records” shall mean all books, records, papers, accounts, letters, maps,
photographs, films, cards, tapes, recordings or reproductions thereof, and any other
documentary materials, regardless of physical form or characteristics, having been used,
being in use, or prepared, possessed or retained for use in the conduct, transaction or
performance of any business, transaction, work, duty or function of any public body, or
required to be maintained by any public body. “Public records” shall not mean “personal
information” as defined in Section 25-62-1.
§ 25-61-5 Adopting reasonable written procedures:
(1)(a) Except as otherwise provided by Sections 25-61-9, 25-61-11, and 25-61-11.2 all
public records are hereby declared to be public property, and any person shall have the
right to inspect, copy or mechanically reproduce or obtain a reproduction of any public
record of a public body in accordance with reasonable written procedures adopted by the
public body concerning the cost, time, place and method of access, and public notice of
the procedures shall be given by the public body, or, if a public body has not adopted
written procedures, the right to inspect, copy or mechanically reproduce or obtain a
reproduction of a public record of the public body shall be provided within one (1)
working day after a written request for a public record is made. No public body shall
adopt procedures which will authorize the public body to produce or deny production of a
public record later than seven (7) working days from the date of the receipt of the request
for the production of the record.
§ 25-61-5 When a written explanation is required:
(1)(b) If a public body is unable to produce a public record by the seventh working day
after the request is made, the public body must provide a written explanation to the
person making the request stating that the record requested will be produced and
specifying with particularity why the records cannot be produced within the seven-day
period. Unless there is mutual agreement of the parties, or the information requested is
part of ongoing negotiations related to a request for competitive sealed proposals, in no
event shall the date for the public body's production of the requested records be any later
than fourteen (14) working days from the receipt by the public body of the original
request. Production of competitive sealed proposals in accordance with requests made
pursuant to this section shall be no later than seven (7) working days after the notice of
intent to award is issued to the winning proposer. Persons making a request for
production of competitive sealed proposals after the notice of intent to award is issued by
the public body shall have a reasonable amount of time, but in no event less than seven
(7) working days after the production of the competitive sealed proposals, to protest the
procurement or intended award prior to contract execution. However, in any instance
where a person has filed for a protective order for a competitive sealed proposal and the
court has not ruled on the protective order within ninety (90) days of filing, then the
public body may proceed with awarding the contract without production of competitive
sealed proposals and the contract may be protested after execution.
§ 25-61-5 Redaction of exempt materials:
(2) If any public record contains material which is not exempted under this chapter, the
public agency shall redact the exempted and make the nonexempted material available for
examination. Such public agency shall be entitled to charge a reasonable fee for the
redaction of any exempted material, not to exceed the agency's actual cost.
§ 25-61-5 Denials to be kept on file:
(3) Denial by a public body of a request for access to or copies of public records under
this chapter shall be in writing and shall contain a statement of the specific exemption
relied upon by the public body for the denial. Each public body shall maintain a file of all
denials of requests for public records. Public bodies shall be required to preserve such
denials on file for not less than three (3) years from the date such denials are made. This
file shall be made available for inspection or copying or both during regular office hours
to any person upon written request.
§ 25-61-7 Fees on providing records:
(1) Except as provided in subsection (2) of this section, each public body may establish
and collect fees reasonably calculated to reimburse it for, and in no case to exceed, the
actual cost of searching, reviewing and/or duplicating and, if applicable, mailing copies of
public records. Any staff time or contractual services included in actual cost shall be at
the pay scale of the lowest level employee or contractor competent to respond to the
request. Such fees shall be collected by the public body in advance of complying with the
request.
(2) A public body may establish a standard fee scale to reimburse it for the costs of
creating, acquiring and maintaining a geographic information system or multipurpose
cadastre as authorized and defined under Section 25-61-1 et seq., or any other
electronically accessible data. Such fees must be reasonably related to the costs of
creating, acquiring and maintaining the geographic information system, multipurpose
cadastre or other electronically accessible data, for the data or information contained
therein or taken therefrom and for any records, papers, accounts, maps, photographs,
films, cards, tapes, recordings or other materials, data or information relating thereto,
whether in printed, digital or other format. In determining the fees or charges under this
subsection, the public body may consider the type of information requested, the purpose
or purposes for which the information has been requested and the commercial value of
the information.
§ 25-61-9 Confidential commercial or financial information:
(1) Records furnished to public bodies by third parties which contain trade secrets or
confidential commercial or financial information shall not be subject to inspection,
examination, copying or reproduction under this chapter until notice to said third parties
has been given, but such records shall be released no later than twenty-one (21) days from
the date the third parties are given notice by the public body unless the third parties have
filed in chancery court a petition seeking a protective order on or before the expiration of
the twenty-one-day time period. Any party seeking the protective order shall give notice
to the party requesting the information in accordance with the Mississippi Rules of Civil
Procedure.
§ 25-61-10 Use of sensitive software:
(1) Except as otherwise provided in Section 25–61–11.2, any public body that uses
sensitive software, as defined in Section 25-61-9, or proprietary software must not
thereby diminish the right of the public to inspect and copy a public record. A public body
that uses sensitive software, as defined in Section 25-61-9, or proprietary software to
store, manipulate, or retrieve a public record will not be deemed to have diminished the
right of the public if it either: (a) If [if] legally obtainable, makes a copy of the software
available to the public for application to the public records stored, manipulated, or
retrieved by the software; or (b) ensures that the software has the capacity to create an
electronic copy of each public record stored, manipulated, or retrieved by the software in
some common format such as, but not limited to, the American Standard Code for
Information Interchange.
(2) A public body shall provide a copy of the record in the format requested if the public
body maintains the record in that format, and the public body may charge a fee which
must be in accordance with Section 25-61-7.
(3) Before a public body acquires or makes a major modification to any information
technology system, equipment, or software used to store, retrieve, or manipulate a public
record, the public body shall adequately plan for the provision of public access and
redaction of exempt or confidential information by the proposed system, equipment or
software.
(4) A public body may not enter into a contract for the creation or maintenance of a public
records data base if that contract impairs the ability of the public to inspect or copy the
public records of that agency, including public records that are on-line or stored in an
information technology system used by the public body.
See also Miss. Code Ann. § 25–61–11.2, which sets forth information technology (IT)
records exempted from the Mississippi Public Records Act of 1983).
§ 25-61-11 Exempted or privileged records:
The provisions of this chapter shall not be construed to conflict with, amend, repeal or
supersede any constitutional law, state or federal statutory law, or decision of a court of
this state or the United States which at the time of this chapter is effective or thereafter
specifically declares a public record to be confidential or privileged, or provides that a
public record shall be exempt from the provisions of this chapter.
Confidential or privileged records exempt from public access:
C Judicial records in the possession of a public body developed among judges and
their aides. See Miss. Code Ann. § 9-1-38.
C Jury records in the possession of a public body developed among juries
concerning judicial decisions. See Miss. Code Ann. § 13-5-97.
C Personnel files such as personnel records, applications for employment, test
questions and answers used in employment examinations, letters of
recommendation, and documents relating to contract authorization. See Miss.
Code Ann. § 25-1-100.
C Attorney's work products which includes all attorney-client communications. See
Miss. Code Ann. § 25-1-102.
C Personal information of law enforcement or court personnel and officers. See
Miss. Code Ann. § 25-61-12(1).
C Investigative reports when in the possession of a law enforcement agency,
however a law enforcement agency may choose to make public all or any part of
any investigative report. See Miss. Code Ann. §§ 25-61-3(f), -12(2).
C Personal information of victims, including victim impact statements and letters of
support on behalf of victims that are contained in records on file with the
Mississippi Department of Corrections and State Parole Board. See Miss. Code
Ann. § 25-61-12(2)(d) and (3).
C Youth court records may not be disclosed except in limited instances. See
U.R.Y.C.P. 5; Miss. Code Ann. § 43-21-261.
Mississippi Attorney General’s opinions:
Records exempt from disclosure.
“[U]nless authorized or required by statute, information such as dates of birth, complete
social security numbers, partial social security numbers, home addresses and driver's
license numbers should not be made public by the Justice Court Clerk. Likewise, . . .
prior to publishing documents online that contain such information, the Justice Court
Clerk should redact the information.” Op. Atty. Gen. Neyman, January 31, 2014.
On satisfying a legitimate request for the verification of a social security number.
“It is a matter of common knowledge that social security numbers and birth dates are used
for the purpose of committing identity theft, which is a felony under Section 97-19-85.
Oftentimes, a legitimate request seeking a record for the purpose of determining or
confirming a social security number, which has previously been provided to the requestor
by an individual, can be satisfied by redacting the first five or six digits and leaving only
the last few digits visible.” Op. Atty. Gen. Berryman, March 22, 2013.
When affidavit and arrest warrants constitute public records.
“Generally the affidavit and [arrest] warrant are not public documents until such time as
the warrant has been served.” Op. Atty. Gen. Miller, July 30, 2010.
§ 25-61-11.1 Exempted information regarding persons with a weapons permit:
The name, home address, any telephone number or other private information of any
person who possesses a weapon permit issued under Section 45-9-101 or Section 97-37-7
shall be exempt from the Mississippi Public Records Act of 1983.
§ 25-61-12 Exemption of court personnel information; victim information:
(1) The home address, any telephone number of a privately paid account or other private
information of any law enforcement officer, criminal investigator, judge or district
attorney or the spouse or child of the law enforcement officer, criminal investigator, judge
or district attorney shall be exempt from the Mississippi Public Records Act of 1983. This
exemption does not apply to any court transcript or recording if given under oath and not
otherwise excluded by law.
. . .
(3) Personal information of victims, including victim impact statements and letters of
support on behalf of victims that are contained in records on file with the Mississippi
Department of Corrections and State Parole Board, shall be exempt from the provisions
of this chapter.
§ 25-61-13 Proceedings to compel public access:
The Mississippi Ethics Commission shall have the authority to enforce the provisions of
this chapter upon a complaint filed by any person denied the right granted under Section
25–61–5 to inspect or copy public records. Upon receiving a complaint, the commission
shall forward a copy of the complaint to the head of the public body involved. The public
body shall have fourteen (14) days from receipt of the complaint to file a response with
the commission. After receiving the response to the complaint or, if no response is
received after fourteen (14) days, the commission, in its discretion, may dismiss the
complaint or proceed by setting a hearing in accordance with rules and regulations
promulgated by the Ethics Commission. The Ethics Commission may order the public
body and any individual employees or officials of the public body to produce records or
take other reasonable measures necessary, if any, to comply with this chapter. The Ethics
Commission may also impose penalties as authorized in this chapter. The Ethics
Commission may order a public body to produce records for private review by the
commission, its staff or designee. The Ethics Commission shall complete its private
review of the records within thirty (30) days after receipt of the records from the public
body. Records produced to the commission for private review shall remain exempt from
disclosure under this chapter while in the custody of the commission.
Nothing in this chapter shall be construed to prohibit the Ethics Commission from
mediating or otherwise resolving disputes arising under this chapter, from issuing an
order based on a complaint and response where no facts are in dispute, or from entering
orders agreed to by the parties. In carrying out its responsibilities under this section, the
Ethics Commission shall have all the powers and authority granted to it in Title 25,
Chapter 4, Mississippi Code of 1972, including the authority to promulgate rules and
regulations in furtherance of this chapter.
Any party may petition the chancery court of the county in which the public body is
located to enforce or appeal any order of the Ethics Commission issued pursuant to this
chapter. In any such appeal the chancery court shall conduct a de novo review. Nothing in
this chapter shall be construed to prohibit any party from filing a complaint in any
chancery court having jurisdiction, nor shall a party be obligated to exhaust
administrative remedies before filing a complaint. However, any party filing such a
complaint in chancery court shall serve written notice upon the Ethics Commission at the
time of filing the complaint. The written notice is for information only and does not make
the Ethics Commission a party to the case.
§ 25-61-15 Penalties for wrongful denial:
Any person who shall deny to any person access to any public record which is not exempt
from the provisions of this chapter or who charges an unreasonable fee for providing a
public record may be liable civilly in his personal capacity in a sum not to exceed One
Hundred Dollars ($100.00) per violation, plus all reasonable expenses incurred by such
person bringing the proceeding.
311 EXEMPTIONS FROM LIABILITY (MISSISSIPPI TORTS CLAIMS ACT)
§ 11-46-9 If within course and scope of employment:
(1) A governmental entity and its employees acting within the course and scope of their
employment or duties shall not be liable for any claim:
(a) Arising out of a legislative or judicial action or inaction, or administrative action or
inaction of a legislative or judicial nature;
(b) Arising out of any act or omission of an employee of a governmental entity exercising
ordinary care in reliance upon, or in the execution or performance of, or in the failure to
execute or perform, a statute, ordinance or regulation, whether or not the statute,
ordinance or regulation be valid;
Case law:
Spencer v. City of Jackson, 511 F. Supp.2d 671, 673 (S.D. Miss. 2007) (“Any suit
alleging state law tort claims against the defendants in their individual capacity is subject
to the [Mississippi Tort Claims Act] and no recovery may be had against employees
individually if they were acting within the course and scope of their employment when
the alleged events giving rise to the cause of action occurred.”).
DeSoto Cty. v. T.D., 160 So. 3d 1154, 1156 (Miss. 2015) (“Section 11-46-9 grants
immunity to DeSoto County if: (1) its justice court clerk was “acting within the course
and scope of [her] employment or duties” (there is no dispute that she was), and (2) the
claim arises “out of a . . . judicial action or inaction, or administrative action or inaction
of a . . . judicial nature. . . .” We find that the Legislature could not have chosen language
that more precisely and clearly provides immunity to the clerk. The statute uses no words
of limitation. It provides immunity for all claims that arise from any “judicial action or
inaction, or administrative . . . inaction of a . . . judicial nature . . . .”).
Simpson v. City of Pickens, 761 So. 2d 855, 858 (Miss. 2000) (“The [Mississippi Tort
Claims Act] provides the exclusive civil remedy against a governmental entity or its
employees for acts or omissions which give rise to a suit.”);
Smith v. City of Saltillo, 44 So. 3d 438, 441 (Miss. Ct. App. 2010) (“The failure of the
municipal court clerk to send Smith's abstract to the Department of Public Safety was an
“administrative action or inaction of a legislative or judicial nature.””).
312 MUNICIPAL COURT COLLECTIONS PAYMENT PROGRAM
§ 21-23-23
(1) The Department of Revenue shall administer the Municipal Court Collections
Payment Program. The purpose of the program shall be to provide support for salaries of
municipal court personnel, for the purchase, operation and maintenance of software and
equipment, for facility planning and improvement, and for other expenses incurred for the
purpose of collecting fines and assessments within the municipal court system. Monies
appropriated by the Legislature to the Department of Revenue for the purposes of funding
the Municipal Court Collections Payment Program shall be expended by the department
to each participating municipality based upon that municipality's deposits in the Treasury
of the monies received under the provisions of Section 99-19-73.
(2) The Department of Revenue shall promulgate rules and procedures relating to the
disbursement of monies to participating municipalities. The department shall promulgate
rules and procedures to ensure that the municipal court system of a participating
municipality practices proper and effective collection procedures for the collection of
fines and other assessments. If a municipality uses its own employees to collect
delinquent fines and other assessments owed to the municipality, then it may use monies
from the fund to defray the costs associated with these collection actions. In addition, the
governing authority of a participating municipality shall contract with a private attorney
or private collection agent or agency to collect delinquent criminal fines and other
assessments as provided in Section 21-17-1(6) in order to qualify.
CHAPTER 4
WARRANTS
400 GOVERNING LAW ON ARREST WARRANTS
Fourth Amendment
Article 3 § 23 of the Mississippi Constitution
Duty of judge upon making of a charging affidavit
Issuance of arrest warrant or summons
Contents of arrest warrant or summons; execution, return
When the Mississippi Rules of Evidence do not apply
Warrants against teachers, jail officers, counselor at an adolescent opportunity
program, and law enforcement officers
Laws pertaining to children
Information forwarded to the Mississippi Justice Information Center
401 WARRANTLESS ARRESTS
For a felony or breach of peace
Knowledge of an outstanding warrant
For domestic violence or a protective order violation
“Misdemeanor or felony act of domestic violence” defined
Arrest docket and incident report
Civil immunity for arrests made in good faith
402 GOVERNING LAW ON SEARCH WARRANTS
Fourth Amendment
Article 3 § 23 of the Mississippi Constitution
Applies to federal and state officers
Persons or things subject to search and seizure
Warrant on affidavit
Contents of search warrants
Execution and return with inventory; return of papers to court; custody of things
Judge’s authority to issue search warrants
Who may execute search warrants
When the Mississippi Rules of Evidence do not apply
403 REASONABLE EXPECTATION OF PRIVACY
Determined by the totality of the circumstances
In the home
In the curtilage
On someone else’s premises
In a vehicle
Of letters and sealed packages
In a jail
From ariel observations
From the use of sense-enhancing devices
Installation of a Global-Positioning-System
404 CHALLENGING A DEFECTIVE SEARCH WARRANT
Is there probable cause?
Stale information?
False statements?
Oath and affirmation?
Designated with reasonable certainty?
Anticipatory warrant?
Functus officio?
Returnable to a blank or past date?
Signed and dated?
Telephonic search warrant?
405 CHALLENGING THE EXECUTION OF A SEARCH WARRANT
Scope of the search exceeded?
Reasonable reliance on warrant’s validity or contents?
Was the warrant properly served?
Were the occupants unlawfully detained?
Did officers announce their presence?
406 CONFIDENTIAL INFORMANTS
For establishing probable cause
When corroborating evidence is necessary
When divulging identity is not required
400 GOVERNING LAW ON ARREST WARRANTS
Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
Article 3 § 23 of the Mississippi Constitution:
The people shall be secure in their persons, houses, and possessions, from unreasonable
seizure or search; and no warrant shall be issued without probable cause, supported by
oath or affirmation, specially designating the place to be searched and the person or thing
to be seized.
MRCrP 2.2 Duty of judge upon making of a charging affidavit:
(a) Probable Cause Determination. If it appears from the charging affidavit and the
evidence submitted that there is probable cause to believe that the offense complained of
has been committed and that there is probable cause to believe that the defendant
committed it, the judge shall proceed under Rule 3.1. Before ruling on a request for a
warrant, the judge may examine under oath the affiant and any witnesses the affiant may
produce.
(b) Evidence. The finding of probable cause shall be based upon evidence, which may be
hearsay in whole or in part provided there is a basis for believing the source of the
hearsay to be credible and for believing that there is a factual basis for the information
furnished.
See also Miss. Code Ann. § 99-15-5 (“Any conservator of the peace may, upon a finding
of probable cause, by warrant issued under his hand, cause any person charged on
affidavit with having committed, or with being suspected of, any offense against the law,
to be arrested and brought before him, or before some other conservator of the peace in
the proper county. On examination, the conservator of the peace shall commit the
offender to jail if the offense be not bailable, and if it be bailable and the offender fail to
find bail.”).
Case law:
Payton v. N.Y., 445 U.S. 573 (1980) (“Thus, for Fourth Amendment purposes, an arrest
warrant founded on probable cause implicitly carries with it the limited authority to enter
a dwelling in which the suspect lives when there is reason to believe the suspect is
within.”).
Wilkinson v. Mayor and Alderman of City of Vicksburg, 2007 WL 1032353 (S.D. Miss.)
(“Probable cause cannot be made out by affidavits which are purely conclusory, stating
only the affiant’s belief that probable cause exists without detailing any of the ‘underlying
circumstances’ upon which that belief is based.”).
Conerly v. State, 760 So. 2d 737, 741 (Miss. 2000) (“Suspicion alone does not meet the
constitutional standard of probable cause.”).
Strode v. State, 231 So. 2d 779, 782 (Miss. 1970) (“Probable cause is a practical,
nontechnical concept, based upon the conventional considerations of everyday life on
which reasonable and prudent men, not legal technicians, act. It arises when the facts and
circumstances within an officer's knowledge, or of which he has reasonably trustworthy
information, are sufficient in themselves to justify a man of average caution in the belief
that a crime has been committed and that a particular individual committed it.”).
MRCrP 3.1 Issuance of arrest warrant or summons
(a) Issuance. Upon a finding of probable cause made pursuant to Rule 2.2, or upon a
finding that such a determination has previously been made, the judge shall immediately
cause to be issued an arrest warrant or, where not prohibited by law, a summons. More
than one (1) summons or warrant may issue on the same charging affidavit.
(b) Summons; Subsequent Issuance of Arrest Warrant.
(1) Summons. Unless otherwise prohibited by law, the judge may issue a summons if:
(A) the defendant is not in custody;
(B) the offense charged is bailable as a matter of right; and
(C) there is no reasonable cause to believe that the defendant will not obey the summons.
(2) Subsequent Issuance of Arrest Warrant. After the issuance of a summons, the judge
shall issue an arrest warrant if:
(A) the defendant, having been duly summoned, fails to appear;
(B) there is reasonable cause to believe that the defendant will fail to appear; or
(C) the summons cannot be served or delivered for any reason.
(c) Traffic Citations Unaffected. The use of tickets, citations, or affidavits for
misdemeanor traffic violations shall be as otherwise provided by law.
See also Miss. Code Ann. § 99-33-3 (“On affidavit of the commission of any crime, of
which the justice court has jurisdiction, lodged with the justice court, the clerk shall, upon
direction by a justice court judge of the county, issue a warrant for the arrest of the
offender returnable forthwith or on a certain day to be named.”).
MRCrP 3.2 Contents of arrest warrant or summons; execution, return:
(a) Arrest Warrant. An arrest warrant issued upon a charging affidavit shall be signed by
the issuing judge. The arrest warrant shall:
(1) contain the complete name of the defendant, or if the name is unknown, any name or
description by which the defendant can be identified with reasonable certainty;
(2) contain the location of the defendant, if known;
(3) state the offense with which the defendant is charged; and
(4) command that the defendant be arrested and brought before the issuing judge, or, if
the issuing judge is unavailable, before the nearest or most accessible judge having
jurisdiction. If the defendant is bailable as a matter of right, the arrest warrant may state
that the defendant shall be released on his personal recognizance, subject to the
mandatory conditions of release in Rule 8.4(a), and directed to appear at a specified time
and place, or be released via an appearance bond or a secured appearance bond in an
amount predetermined by the court.
(b) Summons. The summons shall be in the same form as the arrest warrant, except that it
shall summon the defendant to appear at a stated time and place within a reasonable time
from the date of issuance.
(c) Execution of Arrest Warrant, Return.
(1) By Whom. The arrest warrant shall be directed to and may be executed by any officer
authorized by law within the State of Mississippi.
(2) Manner of Execution. An arrest warrant shall be executed by arrest of the defendant.
(3) Return. After execution, the officer returning an arrest warrant shall write thereon the
manner and date of execution, shall print and sign the officer's name and state the officer's
badge number, and shall promptly return the arrest warrant to the clerk of the court
specified in the arrest warrant.
(d) Service of Summons. The summons may be served by personally delivering a copy of
the summons to the defendant by any officer authorized by law to execute arrest warrants
or by delivering a copy of the summons by U.S. mail, addressed to the defendant at the
defendant’s usual residence, business or post office address. The officer serving the
summons shall make return of the summons in the same manner as provided in Rule
3.2(c)(3) for making return of an arrest warrant.
(e) Defective Arrest Warrant. An arrest warrant shall not be invalidated nor shall any
person in custody thereon be discharged because of a defect in form. The arrest warrant
may be amended by the court to remedy such defect.
See also Comment to Rule 3.2(d) (“A defendant’s failure to respond to a mailed
summons does not provide valid grounds for the issuance of a contempt-based arrest
warrant.”); DeSoto Cty. v. T.D., 160 So. 3d 1154, 1156-57 (Miss. 2015) (“Once the
parties appeared, the justice court judge should not have left the arrest warrant
outstanding. Then, after the parties complied with the judge’s instructions and he
remanded the charges, the clerk should have notified the local sheriff’s office that the
warrants were cancelled. So the authority to cancel the warrant lay with the judge.”).
MRE 1101 When the Mississippi Rules of Evidence do not apply:
(a) To Courts and Proceedings. These rules apply to all cases and proceedings in
Mississippi courts, except as provided in subdivision (b).
(b) Exceptions. These rules--except for those on privilege--do not apply to the following:
. . .
(a) To Courts and Proceedings. These rules apply to all cases and proceedings in
Mississippi courts, except as provided in subdivision (b).
(b) Exceptions. These rules--except for those on privilege--do not apply to the following:
. . .
(4) these miscellaneous proceedings:
C extradition or rendition;
C issuing an arrest warrant, criminal summons, or search warrant;
C probable cause hearings in criminal cases and youth court cases;
C sentencing;
C disposition hearings;
C granting or revoking probation; and
C considering whether to release on bail or otherwise.
Mississippi statutes on arrest warrants applicable to justice courts include: 45-27-9,
97-19-75, 97-19-79, 99-3-28, and 99-25-5.
§ 99-3-28 Warrants against teachers, jail officers, counselor at an adolescent
opportunity program, and law enforcement officers:
(1)(a)(i) Except as provided in subsection (2) of this section, before an arrest warrant shall
be issued against any teacher who is a licensed public school employee as defined in
Section 37-9-1, a certified jail officer as defined in Section 45-4-9, a counselor at an
adolescent opportunity program created under Section 43-27-201 et seq., or a sworn law
enforcement officer within this state as defined in Section 45-6-3 for a criminal act,
whether misdemeanor or felony, which is alleged to have occurred while the teacher, jail
officer, counselor at an adolescent opportunity program or law enforcement officer was in
the performance of official duties, a probable cause hearing shall be held before a circuit
court judge. The purpose of the hearing shall be to determine if adequate probable cause
exists for the issuance of a warrant. All parties testifying in these proceedings shall do so
under oath. The accused shall have the right to enter an appearance at the hearing,
represented by legal counsel at his own expense, to hear the accusations and evidence
against him; he may present evidence or testify in his own behalf.
(ii) The authority receiving any such charge or complaint against a teacher, jail officer,
counselor at an adolescent offender program or law enforcement officer shall immediately
present same to the county prosecuting attorney having jurisdiction who shall
immediately present the charge or complaint to a circuit judge in the judicial district
where the action arose for disposition pursuant to this section.
(b) For any person not covered under paragraph (a) of this subsection, before an arrest
warrant based on the criminal complaint of a person who is not a law enforcement officer
acting in the officer's official capacity may be issued against the person for an alleged
criminal act, whether misdemeanor or felony, the appropriate judge must make a
determination, with or without a hearing, as to whether the affidavit clearly identifies
probable cause to believe that the offense alleged has been committed, at the discretion of
the court. If the judge elects to hold a probable cause hearing, parties testifying shall do so
under oath and the accused shall have the right to enter an appearance, be represented by
legal counsel at his own expense, to hear the accusations and evidence against him, and
may present evidence or testify in his own behalf.
(2) Nothing in this section shall prohibit the issuance of an arrest warrant by a circuit
court judge upon presentation of probable cause, without the holding of a probable cause
hearing, if adequate evidence is presented to satisfy the court that there is a significant
risk that the accused will flee the court's jurisdiction or that the accused poses a threat to
the safety or wellbeing of the public.
(3) Nothing in this section shall prohibit a law enforcement officer from arresting any
person under circumstances in which the law enforcement officer would not be required
to seek a warrant from a court.
.
See also:
State v. Delaney, 52 So. 3d 348, 351 (Miss. 2011) (“[T]he procedural requirements of
Section 99-3-28 are inapplicable once an indictment has been returned by a Mississippi
grand jury.”).
Jackson v. State, 299 So. 3d 823, 832 (Miss. Ct. App. 2020) (“The plain language of the
statute mandates a probable cause hearing before an arrest warrant is issued against a
licensed public school teacher if engaged in a criminal act while in the performance of his
official duties. K.B. was not Jackson's student. Jackson happened to work at the same
school K.B. attended. Jackson never taught K.B. Jackson never supervised K.B. In fact,
all of the alleged criminal activities by Jackson against K.B. occurred off campus, outside
of school hours. Consequently, Jackson cannot avail himself of the procedures provided
in this section.”).
Laws pertaining to children:
§ 43-21-301
(1) No court other than the youth court shall issue an arrest warrant or custody order for a
child in a matter in which the youth court has exclusive original jurisdiction but shall
refer the matter to the youth court.
(2) Except as otherwise provided, no child in a matter in which the youth court has
exclusive original jurisdiction shall be taken into custody by a law enforcement officer,
the Department of Human Services, the Department of Child Protection Services, or any
other person unless the judge or his designee has issued a custody order to take the child
into custody.
U.R.Y.C.P. 11
Comments & Procedures to 11(a)(1):
Justice and municipal courts may not issue an order to take a child into custody, or an
arrest warrant, for any child within the exclusive original jurisdiction of the youth court.
Such is not applicable to offenses outside the exclusive original jurisdiction of the youth
court, e.g., hunting, fishing or traffic violations. See White v. Walker, 950 F.2d 972, 979
(5th Cir. 1991). However, in those instances, the custody of the child must comply with
all state and federal laws pertaining to the detention of juveniles. See U.R.Y.C.P. 19(c).
When a child is convicted of a misdemeanor offense by a criminal court having original
jurisdiction of the misdemeanor charge and the sentence includes that the child is to be
committed to, incarcerated in or imprisoned in a jail or other place of detention, the
commencement of such commitment, incarceration or imprisonment in a jail or other
place of detention is stayed until the criminal court has notified the youth court judge or
the judge's designee of the conviction and sentence.
U.R.Y.C.P. 19
Any child who is charged with a hunting or fishing violation, a traffic violation, a
violation of the Mississippi Implied Consent Law, or any other criminal offense for which
the youth court shall have power on its own motion to remove jurisdiction from any
criminal court, may be detained only in the same juvenile facilities designated by the
youth court for children within the jurisdiction of the youth court.
§ 45-27-9 Information forwarded to the Mississippi Justice Information Center:
(4) All persons in charge of law enforcement agencies shall submit to the center detailed
descriptions of arrest warrants and related identifying data immediately upon
determination of the fact that the warrant cannot be served for the reasons stated. If the
warrant is subsequently served or withdrawn, the law enforcement agency concerned
must immediately notify the center of the service or withdrawal. Also, the agency
concerned must annually, no later than January 31 of each year and at other times if
requested by the center, confirm all arrest warrants which continue to be outstanding.
Upon receipt of a lawful expunction order, the center shall purge and destroy files of all
data relating to an offense when an individual is subsequently exonerated from criminal
liability of that offense. The center shall not be liable for the failure to purge, destroy or
expunge any records if an agency or court fails to forward to the center proper
documentation ordering the action.
. . .
(6) All persons in charge of law enforcement agencies, all court clerks, all municipal
justices where they have no clerks, all justice court judges and all persons in charge of
state and county probation and parole offices, shall supply the center with the information
described in subsections (4) and (10) of this section on the basis of the forms and
instructions for the disposition form to be supplied by the center.
401 WARRANTLESS ARRESTS
§ 99-3-7 For a felony or breach of peace:
(1) An officer or private person may arrest any person without warrant, for an indictable
offense committed, or a breach of the peace threatened or attempted in his presence; or
when a person has committed a felony, though not in his presence; or when a felony has
been committed, and he has reasonable ground to suspect and believe the person
proposed to be arrested to have committed it; or on a charge, made upon reasonable
cause, of the commission of a felony by the party proposed to be arrested. And in all cases
of arrests without 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 on pursuit.
See also United States Supreme Court cases:
Payton v. New York, 445 U.S. 573, 576 (1979) (“[T]he Fourth Amendment . . . prohibits
the police from making a warrantless and nonconsensual entry into a suspect’s home in
order to make a routine felony arrest.”).
Virginia v. Moore, 553 U.S. 164, 178 (2008) (“When officers have probable cause to
believe that a person has committed a crime in their presence, the Fourth Amendment
permits them to make an arrest, and to search the suspect in order to safeguard evidence
and ensure their own safety.”).
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable
cause to believe that an individual has committed even a very minor criminal offense in
his presence, he may, without violating the Fourth Amendment, arrest the offender.”).
See also Mississippi cases:
Elkins v. McKenzie, 865 So. 2d 1065, 1083 (Miss. 2003) (“Prior to invading or entering a
home, the government has the burden to demonstrate exigent circumstances to ‘overcome
the presumption of unreasonableness that attaches to all warrantless home entries.’”).
Brewer v. State, 725 So. 2d 106, 129 (Miss. 1998) (“The facts necessary to uphold an
arrest without a warrant must be sufficiently strong to support the issuance of a warrant
for arrest.”).
Strode v. State, 231 So. 2d 779, 782 (Miss. 1970) (“[Probable cause] arises when the
facts and circumstances within an officer's knowledge, or of which he has reasonably
trustworthy information, are sufficient in themselves to justify a man of average caution
in the belief that a crime has been committed and that a particular individual committed
it.”).
Butler v. State, 19 So. 3d 111, 11 (Miss. Ct. App. 2009) (“Officer Reed saw a group of
people at the Chuk Stop drinking alcohol in violation of a city ordinance. This fact alone
gave [him] authority under the law to carry out warrantless arrests of those he saw
drinking alcohol in violation of the city ordinance.”).
McCoy v. State, 811 So. 2d 482 (Miss. Ct. App. 2002) (“[T]he arrest of McCoy was not
inconsistent with Mississippi statutory law or case law which provides for the warrantless
arrest of a suspect for a misdemeanor offense committed in the officer's presence.”).
Spencer v. State, 908 So. 2d 783, 786 (Miss. Ct. App. 2005) (“[T]he presence
requirement is contextual and may be satisfied under specific circumstances even though
the arresting officer did not physically see the misdemeanor criminal act.”).
§ 99-3-7 Knowledge of an outstanding warrant:
(2) Any law enforcement officer may arrest any person on a misdemeanor charge without
having a warrant in his possession when a warrant is in fact outstanding for that person's
arrest and the officer has knowledge through official channels that the warrant is
outstanding for that person's arrest. In all such cases, the officer making the arrest must
inform such person at the time of the arrest the object and cause therefor. If the person
arrested so requests, the warrant shall be shown to him as soon as practicable.
§ 99-3-7 For domestic violence or a protective order violation:
(3)(a) Any law enforcement officer shall arrest a person with or without a warrant when
he has probable cause to believe that the person has, within twenty-four (24) hours of
such arrest, knowingly committed a misdemeanor or felony that is an act of domestic
violence or knowingly violated provisions of a criminal domestic violence or sexual
assault protection order issued pursuant to Section 97-3-7(11), 97-3-65(6) or 97-3-101(5)
or an ex parte protective order, protective order after hearing or court-approved consent
agreement entered by a chancery, circuit, county, justice or municipal court pursuant to
the Protection from Domestic Abuse Law, Sections 93-21-1 through 93-21-29,
Mississippi Code of 1972, or a restraining order entered by a foreign court of competent
jurisdiction to protect an applicant from domestic violence.
(b) If a law enforcement officer has probable cause to believe that two (2) or more
persons committed an act of domestic violence as defined herein, or if two (2) or more
persons make complaints of domestic violence to the officer, the officer shall attempt to
determine who was the principal aggressor. The term principal aggressor is defined as the
party who poses the most serious ongoing threat, or who is the most significant, rather
than the first, aggressor. The officer shall presume that arrest is not the appropriate
response for the person or persons who were not the principal aggressor. If the officer
affirmatively finds more than one (1) principal aggressor was involved, the officer shall
document those findings.
(c) To determine which party was the principal aggressor, the officer shall consider the
following factors, although such consideration is not limited to these factors:
(i) Evidence from the persons involved in the domestic abuse;
(ii) The history of domestic abuse between the parties, the likelihood of future injury to
each person, and the intent of the law to protect victims of domestic violence from
continuing abuse;
(iii) Whether one (1) of the persons acted in self-defense; and
(iv) Evidence from witnesses of the domestic violence.
(d) A law enforcement officer shall not base the decision of whether to arrest on the
consent or request of the victim.
See also Anderson v. State, 102 So.3d 304, 309 (Miss. Ct. App. 2012) (“[Section
99–3–7(3)(a)] sets forth Mississippi's principal-aggressor law applicable to
domestic-violence cases. A victim's cooperation is not required to proceed with a charge
of domestic violence.”).
§ 99-3-7 “Misdemeanor or felony act of domestic violence” defined:
(5) As used in subsection (3) of this section, the phrase “misdemeanor or felony that is an
act of domestic violence” shall mean one or more of the following acts between current or
former spouses or a child of current or former spouses, persons living as spouses or who
formerly lived as spouses or a child of persons living as spouses or who formerly lived as
spouses, a parent, grandparent, child, grandchild or someone similarly situated to the
defendant, persons who have a current or former dating relationship, or persons who have
a biological or legally adopted child together:
(a) Simple or aggravated domestic violence within the meaning of Section 97–3–7;
(b) Disturbing the family or public peace within the meaning of Section 97–35–9,
97–35–11, 97–35–13 or 97–35–15; or
(c) Stalking within the meaning of Section 97–3–107.
§ 99-3-7 Arrest docket and incident report:
(6) Any arrest made pursuant to subsection (3) of this section shall be designated as
domestic assault or domestic violence on both the arrest docket and the incident report.
Any officer investigating a complaint of a misdemeanor or felony that is a crime of
domestic violence who finds probable cause that such an offense has occurred within the
past twenty-four (24) hours shall file an affidavit on behalf of the victim(s) of the crime,
regardless of whether an arrest is made within that time period. If the crime is reported or
investigated outside of that twenty-four-hour period, the officer may file the affidavit on
behalf of the victim. In the event the officer does not file an affidavit on behalf of the
victim, the officer shall instruct the victim of the procedure for filing on his or her own
behalf.
§ 99-3-7 Civil immunity for arrests made in good faith:
(7) A law enforcement officer shall not be held liable in any civil action for an arrest
based on probable cause and in good faith pursuant to subsection (3) of this section, or
failure, in good faith, to make an arrest pursuant to subsection (3) of this section.
402 GOVERNING LAW ON SEARCH WARRANTS
Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
See also Colorado v. Bannister, 449 U.S. 1, 2 (1980). Absent a specifically established
exception warrantless searches are per se unreasonable.
Article 3 § 23 of the Mississippi Constitution:
The people shall be secure in their persons, houses, and possessions, from unreasonable
seizure or search; and no warrant shall be issued without probable cause, supported by
oath or affirmation, specially designating the place to be searched and the person or thing
to be seized.
See also Hamilton v State, 556 So. 2d 685, 690 (Miss. 1990) (“[T]he affidavit and search
warrant, both of which [were] incorporated by reference and made a part of the
instruments the underlying facts and circumstances sheet, sufficiently directed the officers
to the appellant’s premises where they found him in his residence, executed the warrant
and discovered marijuana.”); Moore v. State, 103 So. 483, 485 (Miss. 1925) (“[The
reasonableness of a search or seizure is] a judicial question to be determined by the court
in each case, taking into consideration the place searched, the thing seized, the purpose
for, and the circumstances under which the search or seizure was made, and the presence
or absence of probable cause therefor.”).
Applies to federal and state officers:
The Fourth Amendment and Article 3, Section 23 of the Mississippi Constitution apply to
public officers, not private persons. See Holliday v. State, 180 So. 800, 800 (Miss. 1938).
Evidence obtained through the search of a private citizen acting on own initiative, even in
instances of trespassing, has been held admissible. See United States v. Kirk, 392 F.
Supp.2d 760, 764 (N.D. Miss. 2005); Wolf v. State, 281 So. 2d 445, 449 (Miss. 1973).
But this is not the case if the private citizen is acting as a government agent or
instrument:
An officer can not obviate the necessity of obtaining a search warrant
before invading the private premises of a citizen, merely by carrying with
him other persons who are not officers to make the find.
Holder v. State, 93 So. 2d 841, 843 (Miss. 1957).
Two critical factors considered by courts in determining if a private is acting as a
government agent or instrument include: (1) whether the government knew of and
acquiesced in the intrusive conduct, and (2) whether the party performing the search
intended to assist law enforcement efforts or to further his own ends. See United States v.
Bazan, 807 F.2d 1200, 1203-04 (5
th
Cir. 1986). De minimis or incidental contacts
between the citizen and law enforcement agents prior to or during the course of a search
or seizure is insufficient. See United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982).
MRCrP 4.1 Persons or things subject to search and seizure:
A search warrant may be issued for any of the following:
(1) evidence of a crime;
(2) contraband, fruits of crime, or other things unlawfully possessed;
(3) thing(s) designed for use, intended for use, or which is being or has been used in
committing a crime; and
(4) a person to be arrested, or who is unlawfully restrained.
MRCrP 4.2 Warrant on affidavit:
(a) In General. No search warrant shall issue except upon affidavit presented to the
issuing judge authorized by law to issue search warrants, establishing grounds for issuing
the warrant.
(b) Issuance. If the judge finds probable cause exists, the judge shall issue a warrant
naming or describing the person or thing to be seized, and naming or describing the
person or place to be searched.
MRCrP 4.3 Contents of search warrants:
Every search warrant issued by the court shall:
(1) command the law enforcement officer to search, within a specified time not to
exceed ten (10) days, the person(s) or place(s) named in the search warrant and to
return the warrant and an inventory of the thing(s) seized to the court as
designated in the warrant;
(2) designate the court to which the warrant and an inventory of the thing(s) seized
shall be returned; and
(3) be signed and dated by the judge, showing the exact time and date and the
name of the law enforcement officer to whom the warrant was delivered for
execution.
See also:
Brown v. State, 2021 WL 973047 (Miss. Ct. App. 2021), which held:
“Because the officer executed the warrant within mere hours of its issuance, the
laudable goals of execution of the warrant within ten days were met. Although the
warrant technically violated Rule 4.3, the search and seizure actions by the
government in this case were in conformance with the Constitution. Thus, we find
that the warrant's failure to provide the exact time was harmless error because the
warrant was clearly executed within hours of issuance and within the mandated
ten-day time frame. We further find that the warrant's failure to include the name
of the designated officer was harmless error because the record is clear that
Officer Ray was the officer who requested and received the warrant. In
conclusion, the goals of Rule of 4.3 were met, and to hold the search warrant in
this case invalid would, without doubt, put form over substance.”
MRCrP 4.4 Execution and return with inventory; return of papers to court;
custody of things:
(a) Receipt and Inventory. The law enforcement officer conducting the search under the
search warrant shall give to the person from whom or from whose premises the things
were taken, or shall leave at the place from which the things were taken, a copy of the
search warrant together with a copy of an inventory of the things taken. The inventory
shall be made in the presence of the person from whose possession or premises the things
were taken, if that person is present, and shall be verified by the law enforcement officer
executing the search warrant.
(b) Return of Papers to Court. The law enforcement officer executing the search warrant
shall promptly return the search warrant, along with any inventory of things seized, to the
court specified in the search warrant. Unexecuted search warrants shall be returned to the
court.
(c) Custody of Things. All things taken pursuant to a search warrant shall be retained in
the custody of the seizing officer or agency, subject to court order.
Judge’s authority to issue search warrants:
Justice court judges may issue search warrants:
• as a conservator of the peace within the county. See Miss. Code Ann. § 99-15-11.
• for administrative inspection and warrants under the Uniform Controlled
Substance Law. See Miss. Code Ann. § 41-29-157.
• for intoxicating beverages offenses. See Miss. Code Ann. § 99-27-15.
A judge who issues a search warrant is not automatically disqualified from presiding over
the case on the merits. Recusal is only required if a reasonable person, knowing all the
circumstances, would harbor doubt as to the judge’s impartiality. See Code of Judicial
Conduct, Canon 3; Wallace v. State, 741 So. 2d 938, 941-42 (Miss. 1999).
See also Ormond v. State, 599 So. 2d 951, 958 (Miss. 1992) (“Under this state's and the
federal guidelines, for a search warrant to be valid it must be issued by a neutral and
detached magistrate.”); McCommon v. State, 467 So. 2d 940, 942 (Miss. 1985) (“A
magistrate who fails to perform his neutral and detached function and who serves “merely
as a rubber stamp for the police” cannot validly issue a search warrant.”).
Who may execute search warrants:
Officials authorized to execute search warrants include:
• sheriffs in the county and in any municipalities within the county. See Miss. Code
Ann. §§ 19-19-5; 19-25-35 and 19-25-37.
• police officers within the boundaries of the municipality. See Miss. Code Ann. §
21-21-1.
• peace officers of the State of Mississippi, any enforcement officer of the
Mississippi Department of Transportation, or any highway patrolman. See Miss.
Code Ann. § 41-29-159.
• conservation officers. See Miss. Code Ann. § 49-1-43.
MRE 1101 When the Mississippi Rules of Evidence do not apply:
(a) To Courts and Proceedings. These rules apply to all cases and proceedings in
Mississippi courts, except as provided in subdivision (b).
(b) Exceptions. These rules--except for those on privilege--do not apply to the following:
. . .
(4) these miscellaneous proceedings:
C extradition or rendition;
C issuing an arrest warrant, criminal summons, or search warrant;
C probable cause hearings in criminal cases and youth court cases;
C sentencing;
C disposition hearings;
C granting or revoking probation; and
C considering whether to release on bail or otherwise.
403 REASONABLE EXPECTATION OF PRIVACY
Determined by the totality of the circumstances:
The Fourth Amendment and Article 3, Section 23 of the Mississippi Constitution protect
people, not places. What a person seeks to protect as private, even in an area accessible
to the public, may be constitutionally protected. See Katz v. United States, 389 U.S. 347,
359 (1967) (“[Fourth Amendment protections] do not vanish when the search in question
is transferred from the setting of a home, an office, or a hotel room to that of a telephone
booth.”). The key inquiry is whether the person challenging the lawfulness of the search
had a legitimate expectation of privacy, i.e., one that society is prepared to recognize as
reasonable, in the invaded place. See Rakas v. Illinois, 439 U.S. 128, 143 (1978). This is
determined by considering the totality of circumstances. Absent a legitimate expectation
of privacy there is no standing to contest the lawfulness of the search. Important, though
certainly not conclusive, considerations are where and how the search is conducted.
The Mississippi Constitution, at least as to an expectation of privacy in the home,
provides greater protection than federal law. See Graves v. State, 708 So. 2d 858, 862
(Miss. 1998) (“[T]his Court has found that the Mississippi Constitution extends greater
protections of an individual’s reasonable expectation of privacy than those enounced
under Federal Law.”).
In the home:
Ordinarily the expectation of privacy in the home is greater than that of a public or
commercial setting. See New York v. Burger, 482 U.S. 691, 700 (1987). This may be
significantly lessened, though, where the activities or circumstances on the premises
create a risk of intrusion that is reasonably foreseeable, e.g., exposing activities to public
scrutiny by leaving drapes open or using home to shop illegal drugs. See Lewis v. United
States, 385 U.S. 206, 211 (1966); Lee v. State, 489 So. 2d 1382, 1386 (Miss. 1986). A
medical emergency in the home or a house afire presents an exigency of compelling
gravity making a warrantless entry and plain view seizure, but not an intensive search
absent a warrant or consent, reasonable. See Thompson v. Louisiana, 469 U.S. 17, 22
(1984); Rose v. State, 586 So. 2d 746, 752 (Miss. 1991). A homeowner has a legitimate
expectation of privacy in the contents of garbage kept inside the residence, but not if left
for collection next to the street. See California v. Greenwood, 486 U.S. 35, 40 (1988);
Welch v. State, 830 So. 2d 664, 668 (Miss. 2002).
In the curtilage:
A resident has a legitimate expectation of privacy in the curtilage, but not open fields.
[C]urtilage questions should be resolved with particular reference to four
factors: the proximity of the area claimed to be curtilage to the home,
whether the area is included within an enclosure surrounding the home, the
nature of the uses to which the area is put, and the steps taken by the
resident to protect the area from observation by people passing by.
United States v. Dunn, 480 U.S. 294, 301 (1987).
See also Florida v. Jardines, 133 S.Ct. 1409, 1415 (2013) (“[The curtilage] is “intimately
linked to the home, both physically and psychologically,” and is where “privacy
expectations are most heightened.” . . . The front porch is the classic exemplar . . . .”);
Oliver v. United States, 466 U.S. 170, 179 (1984) (“Open fields do not provide the setting
for those intimate activities that the [Fourth] Amendment is intended to shelter from
government interference or surveillance.”); Arnett v. State, 532 So. 2d 1003, 1009 (Miss.
1988) (“Four-factor test [in Dunn] is not to be rigidly applied in all cases, but is to be
used as an analytical tool in determining whether an area is so intimately tied to a home
as to be within its curtilage.”).
On someone else’s premises:
“While an ownership of possessory interest is not necessarily required, the mere
legitimate presence on the searched premises by invitation or otherwise, is insufficient in
itself to create a protectable expectation.” States v. Meyer, 656 F.2d 979, 980 (5
th
Cir.
1981). Instead, the defendant must show an expectation of privacy in the invaded place
that society is prepared to recognize as reasonable. See, e.g., Minnesota v. Carter, 525
U.S. 83, 91 (1998) (holding that defendant being on premises with consent of
householder to assist in bagging cocaine had no legitimate expectation of privacy);
Hopson v. State, 625 So. 2d 395, 401 (Miss. 1993) (holding that occasional baby-sitter
did not have legitimate expectation of privacy). A houseguest is entitled to the same
Fourth Amendment protections that one would ordinarily expect at home–but not more.
See Minnesota v. Olson, 495 U.S. 91, 98 (1990) (holding that overnight houseguest had
legitimate expectation of privacy); U.S. v. Taylor, 482 F.3d 315, 318 (5
th
Cir. 2007)
(“Taylor fails to recognize that under [Minnesota v. Olson], his Fourth Amendment rights
as a guest are limited to those that he could assert with respect to his own residence.”).
In a vehicle:
There is less expectation of privacy in a vehicle than a home. This is due in part by the
exigency created by its mobility. See Cady v. Dombrowski, 413 U.S. 433, 442 (1973).
The owner or driver of a vehicle has a greater expectation of privacy than a mere
passenger. See United States v. Roberson, 6 F.3d 1088, 1091 (5
th
Cir. 1993) (“Typically, a
passenger without a possessory interest in an automobile lacks standing to complain of its
search because his privacy expectation is not infringed.”); Bradshaw v. State, 192 So. 2d
387 (Miss. 1966) (“[Defendant] was neither the owner nor driver of the car, and any
search of it, as to him, was not unlawful.”); McKee v. State, 878 So. 2d 232, 236 (Miss.
Ct. App. 2004) (“[Defendant who] was not the owner of the vehicle [but] merely test-
driving it [would have lacked standing to complain of its search.]”); McCollins v. State,
798 So. 2d 624, 628 (Miss. Ct. App. 2001) (“As a passenger, [the defendant] had no
reasonable expectation of privacy which would give him standing to bring such a
claim.”).
Of letters and sealed packages:
Letters and other sealed packages ordinarily require a warrant before government agents
may examine the contents:
Even when government agents may lawfully seize such a package to
prevent loss or destruction of suspected contraband, the Fourth
Amendment requires that they obtain a warrant before examining the
contents of such a package. Such a warrantless search could not be
characterized as reasonable simply because, after the official invasion of
privacy occurred, contraband is discovered.
United States v. Jacobsen, 466 U.S. 109, 114 (1983).
In a jail:
A prisoner has a legitimate expectation of privacy when talking to his attorney in a secure
room at the jail, but not when talking with other inmates in a cell. See Hudson v. Palmer,
468 U.S. 517, 536 (1984); Lanza v. New York, 370 U.S. 139, 144-45 (1962).
From ariel observations:
Ariel observations of private and commercial properties ordinarily do not invoke Fourth
Amendment protections. California v. Ciraolo, 476 U.S. 207, 215 (1986) (“The Fourth
Amendment simply does not require the police traveling in the public airways to obtain a
warrant in order to observe [on residential property] what is visible to the naked eye.”).
From the use of sense-enhancing devices:
The use of sense-enhancing devises not in general public use to explore details of the
home which otherwise would not be knowable requires a warrant. See Kyllo v. United
States, 533 U.S. 27, 40 (2001) (“Where, as here, the Government uses a device that is not
in general public use, to explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a “search” and is
presumptively unreasonable without a warrant.”). The use of flashlights or binoculars do
not require a warrant. See United States v. Lee, 274 U.S. 559, 563 (1927).
Installation of a Global-Positioning-System:
“[T]he Government’s installation of a GPS device on a target’s vehicle, and its use of that
device to monitor the vehicle’s movements, constitutes a ‘search.’” United States v.
Jones, 132 S.Ct. 945 (2012).
404 CHALLENGING A DEFECTIVE SEARCH WARRANT
Is there probable cause?
The judge’s decision for issuing a warrant is a practical, common-sense decision of
whether, given all the circumstances set forth in the affidavit [and any sworn oral
testimony supplementing the affidavit], including the “veracity” and “basis of
knowledge” of persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.
See Illinois v. Gates, 462 U.S. 213, 237 (1983); Hickson v. State, 512 So. 2d 1, 3 (Miss.
1987) (“While the underlying facts stated in the affidavit for the search warrant
considered alone, may not have been sufficient, oral testimony was adduced before the
magistrate which, taken together with the affidavit, sufficiently established that probable
cause existed for the issuance of the warrant.”); Lee v. State, 435 So. 2d 674, 676 (Miss.
1983) (“[W]e reaffirm the totality of the circumstances analysis that traditionally has
informed probable cause determinations.”); Prueitt v. State, 261 So. 2d 119, 123 (Miss.
1972) (“Oral testimony is admissible before the officer who is requested to issue a search
warrant.”); Donerson v. State, 812 So. 2d 1081, 1085 (Miss. Ct. App. 2001) (“A judge
may make a determination of probable cause on any evidence offered . . ., [including
hearsay that is reasonably trustworthy,] regardless of whether that evidence is admissible
in court.”).
Probable cause is more than a mere suspicion of illegal activity:
[A]ll judges [must] scrupulously examine the facts in each case, make a
careful evaluation, and in their own best judgment gleaned from life's
experiences determine whether probable cause existed for a particular
search or issuance of a magistrate's search warrant. It is not what some
officer thought, it is not some conduct that was simply unusual, not some
conduct which simply roused the suspicion that illegal activity could be
afoot when there was at the same time just as likely a possibility that
nothing at all illegal was transpiring. Rather, it must be information
reasonably leading an officer to believe that then and there contraband or
evidence material to a criminal investigation would be found. While no
more than this will be required, at least this much will be demanded.
Rooks v. State, 529 So. 2d 546, 554 (Miss. 1988).
See also Washington v. State, 382 So. 2d 1086, 1087-88 (Miss. 1980) (“While it is true
that search warrant affidavits must be interpreted in a common sense manner with
appreciation for the fact that non-lawyers prepare them in haste of criminal investigations
. . . it is equally well established that no interpretation may excuse the absence of
sufficient underlying facts and circumstances to provide a rational basis for a neutral and
judicial determination of probable cause.”).
Stale information?
Staleness of information is but one factor in the totality of circumstances for establishing
probable cause in issuing a search warrant. See Renfrow v. State, 34 So. 3d 617, 627
(Miss. Ct. App. 2009) (“[I]t was reasonable for the judge who issued the search warrant
to conclude that images on a computer could still be recovered by forensic methods nine
or ten months after the children saw them.”); Flake v. State, 948 So. 2d 493, 496-97
(Miss. Ct. App. 2007) (“[T]he facts here do not imply that the information forming the
basis for the probable cause was stale. . . . It defies common sense to believe that the
confidential informant purchased methamphetamine from Flake and then carried it
around for several weeks before notifying the police.”).
False statements?
If a defendant makes a substantial preliminary showing that a false statement knowingly
and intentionally or with reckless disregard for the truth was included by the affiant in the
warrant affidavit, and if the allegedly false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s
request. See Franks v. Delaware, 438 U.S. 154, 155-156 (1978); McNeal v. State, 617 So.
2d 999, 1004 (Miss. 1993); Busick v. State, 906 So. 2d 846, 854 (Miss. Ct. App. 2005).
At the hearing, the defendant must show by a preponderance of the evidence that the
officer intentionally misrepresented facts or made them in reckless disregard for the truth:
We find . . . no showing that [the officer] intentionally misrepresented
facts or made them in reckless disregard for the truth. [He] described the
CI as reliable in the past because he knew him to be a reliable CI used by
the department on occasion.
Roach v. State, 7 So. 3d 911, 919 (Miss. 2009).
If the allegation is proved, then the court must set aside the false statement and determine
whether the remaining affidavit (i.e., absent the false statement) along with the sworn oral
testimony supplementing the affidavit are still sufficient to establish probable cause:
[The criminal investigator] erred in some of the statements set forth in the
underlying facts [of the warrant affidavit] . . . [but] there was no showing
that [he] intentionally misrepresented those facts, or made them in reckless
disregard for the truth. Moreover, the remaining underlying facts clearly
constituted probable cause for the issuance of the search warrants.
Bevill v. State, 556 So. 2d 699, 713 (Miss. 1990).
But if the remaining facts are not sufficient, the search warrant is voided and the fruits of
the search are suppressed to the same extent as if no warrant was issued. See Petti v.
State, 666 So. 2d 754, 757-60 (Miss. 1995); Shaw v. State, 938 So. 2d 853, 857-59 (Miss.
Ct. App. 2006).
Oath and affirmation?
The “oath and affirmation” condition is satisfied if the affiant does some unequivocal act,
whether by words or conduct, that indicates to the issuing judge that the affidavit is under
oath. See Boyd v. State, 40 So. 2d 303, 306 (Miss.1949) (“[W]e do not think that the
issuance of the search warrant in the instant case was ‘supported by oath or affirmation’
before the officer issuing the same, as contemplated by the Constitution.”); Atwood v.
State, 111 So. 865 (Miss. 1927) (“The affiant, in the presence of the [judge], signed the
affidavit; the [judge] affixed his jurat thereto, and issued the search warrant in proper
form.”).
Designated with reasonable certainty?
Descriptions in search warrants need not be positively specific and definite, but are
sufficient if the places and things to be searched are designated in such manner that the
officer making the search may locate them with reasonable certainty. See Pool v. State,
483 So. 2d 331, 334 (Miss. 1986); Conn v. State, 170 So. 2d 20 (Miss. 1964); Matthews
v. State, 100 So. 18, 19-20 (Miss. 1924); Loeb v. State, 98 So. 449, 452 (Miss. 1923). In
determining whether the search warrant adequately describes the places to be searched or
things to be seized, the court may look to the affidavit and its underlying facts and
circumstances. See Hamilton v. State, 556 So. 2d 685, 688-90 (Miss. 1990). Naming the
owner or occupant of the premises is relevant only to assist and aid in particularizing the
place to be searched:
It is proper to name the owner or occupant if known, but, if he is unknown,
this fact will not prevent a search of the premises when probable cause
exists, and the property to be searched is described with sufficient clarity.
Traxler v. State, 142 So. 2d 14, 15 (Miss. 1962).
See also Sutton v. State, 238 So. 3d 1150, 1157 (Miss. 2018) (“Sutton argues that the
search warrant did not adequately describe the property to be seized. After review, we
agree. ‘The description ‘stolen property’ is no description.’”); Williams v. State, 583 So.
2d 620, 624 (Miss. 1991) (“[N]othing in the Fourth Amendment requires that either the
affidavit or the warrant give the name of the owner of the property to be searched.”);
Wince v. State, 39 So. 2d 882, 884 (Miss. 1949) (“There is no good reason to require that
the affidavit and search warrant shall show the name of the owners of the property, and
we do not think that such a showing in the affidavit and the search warrant is necessary or
required by our statutes.”).
Anticipatory warrant?
Anticipatory warrants meet the Fourth Amendment’s particularity requirements so long as
the supporting affidavit contains information showing:
1) that if the triggering condition occurs there is a fair probability that contraband or
evidence of a crime will be found in a particular place, and
2) that there is probable cause to believe the triggering event will occur.
See United States v. Grubbs, 547 U.S. 90, 98 (2006) (“[The Fourth Amendment’s]
particularity requirement does not include the conditions precedent to execution of the
warrant.”).
Functus officio?
“Functus officio” is term that is applied to an instrument, power, or agency, which has
fulfilled the purpose of its creation, and is therefore of no further virtue or effect:
Was the search warrant lawfully available to the officers for further and
other searches of the premises of defendant after the search had been
completed, evidence obtained, the defendant arrested, plead guilty, and
paid his fine? We think not. The power to the search warrant had become
exhausted.
Riley v. State, 37 So. 2d 768, 769-70 (Miss. 1948).
See also Taylor v. State, 102 So. 267, 268 (Miss. 1924) (“We think it is necessary that
some time shall be fixed in a search warrant for the return thereof, and that after that time
it becomes functus officio, and cannot be executed.”)
Returnable to a blank or past date?
A search warrant returnable to a blank or past date is void. See Buxton v. State, 39 So. 2d
310, 311 (Miss. 1949); Buckley v. State, 117 So. 115, 116 (Miss. 1928). A search
warrant “returnable instanter” is valid since such is not an indefinite or impossible return
date. See Meyer v. State, 309 So. 2d 161, 166 (Miss. 1975).
Signed and dated?
A search warrant not signed or dated is void:
If undated search warrants were allowed to be placed in the hands of
officers with no date fixed therein for the reasonably early execution and
return thereof, and after execution the court were allowed to insert the
essential date or dates by amendment, the door to the equivalent of the
odious general warrant or writ of assistance which our forefathers had so
earnestly sought to close by the searches and seizures provisions in state
and federal constitutions, would be open again.
Johnson v. State, 31 So. 2d 127, 128 (Miss. 1947).
But this requirement doesn’t necessarily apply to the affidavit in support of the warrant.
See McKinney v. State, 724 So. 2d 928, 933 (Miss. Ct. App. 1998) (“Although the
affidavit [in support of the warrant] was undated, we find that there was a substantial
basis to support the judge’s finding of probable cause.”). It should be noted too that
Sunday warrants are not prohibited. See Armstrong v. State, 15 So. 2d 438, 438 (Miss.
1943) (“The fact that a search warrant is issued on Sunday does not render it invalid,
unless expressly prohibited by statutory enactment.”).
Telephonic search warrant?
Telephonic search warrants, absent statutory procedures authorizing their use, are not
valid in Mississippi. See White v. State, 842 So. 2d 565, 570 (Miss. 2003).
405 CHALLENGING THE EXECUTION OF A SEARCH WARRANT
Scope of the search exceeded?
A judge in issuing a search warrant may limit the scope of the search. Evidence seized as
a result of exceeding that scope, and for which no recognizable exception applies, is
inadmissible. See, e.g., Strange v. State, 530 So. 2d 1336, 1339 (Miss. 1998) (holding that
marijuana seized in nighttime search inadmissible where warrant limited scope to “in the
daytime”); Carney v. State, 525 So. 2d 776, 787 (Miss. 1988) (“As the search warrant was
properly issued only for the television and radio, then only that contraband discovered in
plain view during the search for [those items] is properly admissible.”); Strangi v. State,
98 So. 340 (Miss. 1923) (holding that warrant specifically authorizing search of a
particular room occupied by a particular person did not justify the search of a different
and separate building 100 feet away.).
But there is significant leeway:
The search warrant specifically stated that the resulting search was “[t]o
include items inside the vehicle.” . . . [W]e interpret the search warrant as
authorizing the seizure of any evidence that tended to demonstrate that
Taylor was intoxicated at the time she hit and killed William. The black
box and the data within it contained information that would assist in that
regard.
Taylor v. State, 94 So. 3d 298, 311 (Miss. Ct. App. 2012).
Even when searching homes:
The search warrant listed the following items to be seized: “money,
checks, money order receipts, clothing worn during the robbery of the
Piggly Wiggly store to include gray hooded sweatshirt, dark denim pants,
long sleeve black shirt.”
. . .
Officer Brown was entitled to make reasonable inspection of places where
the items identified in the search warrant may have been hidden, and the
living-room closet was such a location. Having discovered the gun, it was
reasonable for Officer Brown to believe, under the circumstances of the
investigation, that the gun had evidentiary value. Accordingly, we affirm
the trial court's denial of Trammell's motion to suppress.
Trammell v. State, 62 So. 3d 424, 427-28 (Miss. Ct. App. 2011).
However, officers must still consider the expectation of privacy of others:
Where the proof shows that a portion of a residence is in the sole, separate,
and exclusive possession of an individual other than the one named by the
search warrant, that individual has a reasonable expectation of privacy in
his or her solely occupied portion.
Graves v. State, 708 So. 2d 858, 861 (Miss. 1997).
A search pursuant to a warrant should be accomplished from its onset, taking into account
the totality of the circumstances, within a reasonable length of time. See Smith v. State,
102 So. 2d 699, 700 (Miss. 1958).
Reasonable reliance on warrant’s validity or contents?
The Fourth Amendment exclusionary rule should not be applied if officers in executing
the search acted in objectively reasonable reliance as to the warrant’s validity or contents:
[The judge] unequivocally stated that it was her intent to issue a “no
knock” warrant, and that she informed the officer-affiant of this intent. . . .
There is no reason why a clerical mistake on the part of the judge should
result in the suppression of the evidence seized.
White v. State, 746 So. 2d 953, 957-58 (Miss. Ct. App. 1999).
See also Massachusetts v. Sheppard, 468 U.S. 981, 989-90 (1984) (“We refuse to rule
that an officer is required to disbelieve a judge who has just advised him, by word and by
action, that the warrant he possesses authorizes him to conduct the search he has
requested.”); United States v. Leon, 468 U.S. 897, 922 (1984) (“We conclude that the
marginal or nonexistent benefits produced by suppressing evidence obtained in
objectively reasonable reliance on a subsequently invalidated search warrant cannot
justify the substantial costs of exclusion); White v. State, 842 So. 2d 565, 568 (Miss.
2003) (“[W]e adopt the Leon good faith exception to warrantless searches . . . .”).
But this “good faith” exception does not apply if officers deliberately mislead the judge
with false statements to secure the warrant. See Shaw v. State, 938 So. 2d 853, 858 (Miss.
Ct. App. 2005). Moreover, probable cause developed subsequent to the unlawful search
and seizure does not retroactively cure the prior violation. See McDuff v. State, 763 So.
2d 850, 856 (Miss. 2000).
Was the warrant properly served?
Failure to serve the owner or person occupying or controlling the premises with a copy of
the warrant, despite statutory language mandating that it be done, does not void an
otherwise valid search. See Williams v. State, 583 So. 2d 620, 624-25 (Miss. 1991).
Serving the person in charge of the premises, even though no attempt is made to locate
the owner, is clearly sufficient. See Brown v. State, 77 So. 2d 694, 695 (Miss. 1955).
Were the occupants unlawfully detained?
Police executing a valid search warrant have limited authority to detain the occupants of
the premises while the search is conducted so as to minimize the risk of harm to the
officers and occupants, prevent flight in the event incriminating evidence is found, and
facilitate the orderly completion of the search. See Michigan v. Summers, 452 U.S. 692,
701-05 (1981); Dees v. State, 758 So. 2d 492, 494 (Miss. Ct. App. 2000). But “[o]nce an
individual has left the immediate vicinity of a premises to be searched, however,
detentions must be justified by some other rationale.” Bailey v. U.S., 133 S.Ct. 1031,
1043 (2013).
Did the officers announce their presence?
Absent a legitimate justification for not doing so, police are required to announce their
presence before entering the home pursuant to a warrant:
In order to justify a “no knock” entry, the police must have a reasonable
suspicion that knocking and announcing their presence, under the
particular circumstances, would be dangerous or futile, or that it would
inhibit the effective investigation of the crime by, for example allowing
the destruction of evidence . . . . This showing is not high, but the police
should be required to make it whenever the reasonableness of a no knock
entry is challenged.
Richards v. Wisconsin, 520 U.S. 385, 390 (1997).
See also Wilson v. Arkansas, 514 U.S. 927, 934 (1995) (“The Fourth Amendment's
flexible requirement of reasonableness should not be read to mandate a rigid rule of
announcement that ignores countervailing law enforcement interests.”); White v. State,
746 So. 2d 953, 957 (Miss. Ct. App. 1999) (“Mississippi has no statute which specifically
prohibits ‘no-knock’ warrants, and our case law has never prohibited the issuance of ‘no-
knock warrants.’”).
But a violation of the knock-and-announce rule does not necessarily require the exclusion
of seized evidence:
What the knock-and-announce rule has never protected . . . is one’s
interest in preventing the government from seeing or taking evidence
described in a warrant. Since the interests that were violated in this case
have nothing to do with the seizure of the evidence, the exclusionary rule
is inapplicable.
Hudson v. Michigan, 547 U.S. 586, 594 (2006).
See also United States v. Ramirez, 523 U.S. 65, 71 (1998) (“Excessive or unnecessary
destruction of property in the course of a search may violate the Fourth Amendment, even
though the entry itself is lawful and the fruits of the search are not subject to
suppression.”).
406 CONFIDENTIAL INFORMANTS
For establishing probable cause:
The judge’s decision for issuing a warrant is a practical, common-sense decision of
whether, given all the circumstances set forth in the affidavit and any sworn oral
testimony supplementing the affidavit, including the “veracity” and “basis of knowledge”
of persons supplying hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. See Illinois v. Gates, 462 U.S.
213, 237 (1983); Lee v. State, 435 So. 2d 674, 676 (Miss. 1983); Reid v. State, 825 So.
2d 701, 702 (Miss. Ct. App. 2002).
When corroborating evidence is necessary:
When information in the affidavit, or sworn oral testimony supplementing the affidavit, is
furnished by a confidential informant who is neither an eyewitness nor a participant to the
crime, then there must be some corroborating evidence to show that the information
provided by such person was truthful or reliable. Had the confidential informant in the
past given true and reliable information? Does the suspect’s extensive criminal record
corroborate the informant’s report? Did an independent investigation by law enforcement
corroborate the informant’s report? But, in any event, the Gates/Lee test must still be
met:
[S]imply repeating an informant’s allegation, without more, does not
overcome the threshold requirements for probable cause.
Roebuck v. State, 915 So. 2d 1132, 1137 (Miss. Ct. App. 2005).
See also United States v. Satterwhite, 980 F. 2d 317, 321 (5
th
Cir. 1992); State v. Woods,
866 So. 2d 422, 428 (Miss. 2003); Donerson v. State, 812 So. 2d 1081, 1085-86 (Miss.
2001); Walker v. State, 473 So. 2d 435, 438 (Miss. 1985); Holland v. State, 263 So. 2d
566, 566-67 (Miss. 1972); Cooper v. State, 93 So. 3d 898, 901 (Miss. Ct. App. 2012).
When divulging identity is not required:
If the confidential informant is not an eyewitness or participant in the crime, nor present
when the defendant is apprehended, then the State is not required to divulge the identity
of such person. See Breckenridge v. State, 472 So. 2d 373, 377 (Miss. 1985). Otherwise
disclosure is ordinarily required:
[T]his Court is reluctant to require the State to divulge the name of
informants because once their identity is known they lose their ability to
detect criminal activity. However, when it appears that the informant is a
participant or is a material witness essential to the defense of the accused,
this Court will not hesitate to require the state to divulge his identity.
Raper v. State, 317 So. 2d 709, 714 (Miss. 1975).
See also Johnson v. State, 155 So. 3d 733, 740 (Miss. 2014) (“The search warrant
materials in effect allowed the unseen, unknown, and unsworn confidential informant to
testify against Johnson, without any opportunity for cross examination by the accused.
We therefore find that admission of such statements at trial offends the Confrontation
Clauses of our federal and state constitutions.”); Corry v. State, 710 So. 2d 853, 858
(Miss. 1998) (“[W]here the informer is an actual participant in the alleged crime, the
accused is entitled to know who he is.”); Garvis v. State, 483 So. 2d 312, 316 (Miss.
1986) (“[W]here the informant takes part in the police activity, or if the informant
becomes a witness to the facts constituting a crime, he becomes a witness who may be
required to appear at trial.”).
Blank page
CHAPTER 5
EXCEPTIONS TO THE WARRANT REQUIREMENT
500 FOURTH AMENDMENT ANALYSIS APPLIES
501 PLAIN VIEW
502 CONSENSUAL ENCOUNTER
503 INVESTIGATORY STOPS
Grounds for an investigatory stop
What is reasonable suspicion?
Reasonable suspicion to be determined from the totality of the circumstances
Probable cause to believe a traffic violation has occurred is sufficient
Tip of erratic driving as a basis for the stop
Reasonable suspicion transferrable
Mistake in law allowable as a basis for the stop
Traffic stops may not extend beyond a reasonable duration
Protective search incident to a traffic stop
Smell of marijuana emanating from vehicle
No stop occurs if person resists or flees
504 FRISK
505 CHECKPOINTS
Balancing test for reasonableness
Gravity of the public concerns served by the seizure
Degree to which the seizure advances the public interest
Severity of the interference with individual liberty
When a motorist evades a checkpoint
506 CONSENT
507 SEARCH INCIDENT TO A LAWFUL ARREST
508 PROTECTIVE SWEEP
509 VEHICLE SEARCH
510 DOG SNIFFS
511 INVENTORY
512 STATIONHOUSE SEARCH
513 EMERGENCY SITUATION
514 TO PREVENT THE DESTRUCTION OF EVIDENCE
515 HOT PURSUIT
516 THE EXCLUSIONARY RULE
General considerations
Attenuation of the taint doctrine
Independent-source doctrine
Inevitable discovery doctrine
Leon good faith exception
517 A SUMMARY OF SEARCH AND SEIZURE ISSUES
500 FOURTH AMENDMENT ANALYSIS APPLIES
Recognized exceptions to the warrant requirement excuse the need to obtain a valid
search warrant prior to the search and seizure of incriminating evidence. Absent a
recognized exception, a warrantless search is per se unreasonable. But labels do not
always fit! Each case must be closely examined upon its own set of facts. Exigent
circumstances may arise making an otherwise unreasonable warrantless search
“reasonable” under a Fourth Amendment analysis. Also, circumstances surrounding the
initial encounter or intrusion may give rise to an expanded search. For example, a
consensual encounter may give rise to an articulable and reasonable belief that criminal
activity is afoot permitting a stop; the stop may give rise to an articulable and reasonable
belief that the person is armed and dangerous permitting a frisk; the frisk may give rise to
a plain view seizure of contraband permitting a search incident to an arrest.
501 PLAIN VIEW
Circumstances allowing for “plain view” seizure of contraband are determined within the
overall framework of Fourth Amendment analysis. See Smith v. State, 419 So. 2d 563,
571 n.2 (Miss.1982). A plain view seizure requires:
C the officer to be in a lawful position to view the object. See Washington v.
Chrisman, 455 U.S. 1, 9 (1982); Mc Farlin v. State, 883 So. 2d 594, 598-99
(2004);
C probable cause, i.e., the incriminating nature of the object must be “immediately
apparent.” See Minnesota v. Dickerson, 508 U.S. 366, 374 (1993); Brown v. State,
690 So. 2d 276, 285 (Miss. 1996); and
C the officer have a lawful right of access to the object itself. See Horton v.
California, 496 U.S. 128, 138 (1990).
See also Texas v. Brown, 460 U.S. 730, 743-44 (1983) (holding that officer’s seizure of
knotted balloon containing heroin proper since the officer was in a lawful position to
view the knotted balloon and its incriminating nature was immediately apparent);
Godbold v. State, 731 So. 2d 1184, 1190 (Miss 1999) (holding that a paint speckled gas
grill matching the description of reported stolen property was properly seized since its
incriminating nature was immediately apparent).
502 CONSENSUAL ENCOUNTER
A consensual encounter is an investigative inquiry without a restrained detention, i.e., the
person is “free to leave” and “free not to cooperate.” See Florida v. Royer, 460 U.S. 491,
497 (1983); Randolph v. State, 973 So. 2d 254, 259 (Miss. Ct. App. 2007). No
particularized or objective justification is required to initiate or engage in such an
encounter:
Law enforcement officers do not violate the Fourth Amendment’s
prohibition of unreasonable seizures merely by approaching individuals on
the street or in other places and putting questions to them if they are
willing to listen.
United States v. Drayton, 536 U.S. 194, 200 (2002).
A seizure takes place only if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed there was a restrained detention. Florida v.
Bostick, 501 U.S. 429, 439 (1991) (“[A] court must consider all the circumstances
surrounding the encounter to determine whether the police conduct would have
communicated to a reasonable person that the person was not free to decline the officer’s
requests or otherwise terminate the encounter.”). Circumstances that might indicate a
seizure, even where the person did not attempt to leave, include: a threatening presence
of several officers; a display of a weapon by an officer; some physical touching of the
citizen; or the use of language or tone of voice indicating that compliance with the officer
might be compelled. See United States v. Mendenhall, 446 U.S. 544, 554 (1980).
503 INVESTIGATORY STOPS
Grounds for an investigatory stop:
Reasonable suspicion, not probable cause, is the standard for making an investigatory
stop:
The constitutional requirements for an investigative stop and detention are
less stringent than those for an arrest. This Court has recognized that
“given reasonable circumstances an officer may stop and detain a person
to resolve an ambiguous situation without having sufficient knowledge to
justify an arrest,” that is, on less information than is constitutionally
required for probable cause to arrest.
Wilson v. State, 935 So. 2d 945, 950 (Miss. 2006).
An officer has a duty to be alert for suspicious circumstances. See Dies v. State, 926 So.
2d 910, 919 (Miss. 2006) (“The Fourth Amendment does not require police who lack the
information necessary for probable cause to simply shrug their shoulders and allow a
crime or a criminal escape to occur. Rather, it allows for investigatory stops to encourage
the police to pursue their reasonable suspicions.”). But any investigative stop must be
within constitutional limits. See Walker v. State, 881 So. 2d 820, 826 (Miss. 2004). The
stopping of a vehicle and the detention of its occupants is a “seizure” within the meaning
of the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 653 (1979); U.S. v.
Shabazz, 993 F.2d 431, 434 (5
th
Cir. 1993).
To make an investigatory stop the officer must:
• have a reasonable suspicion;
• based upon specific and articulable facts; and
• which, taken together with rational inferences from those facts, result in the
conclusion that criminal behavior has occurred or is imminent.
See Terry v. Ohio, 392 U.S. 1, 21 (1968); Burchfield v. State, 892 So. 2d 191, 194 (Miss.
2004); Bone v. State, 914 So. 2d 209, 212 (Miss. Ct. App. 2005).
What is reasonable suspicion?
Reasonable suspicion exists when the detaining officer can point to specific and
articulable facts that, when taken together with rational inferences from those facts,
reasonably warrant the search and seizure. See United States v. Estrada, 459 F.3d 627,
631 (5
th
Cir. 2006). It is more than an inchoate and unparticularized suspicion or hunch
of criminal activity, but considerably less than proof of wrongdoing by a preponderance
of the evidence. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000); U.S. v. Rodriguez,
564 F.3d 735, 741 (5
th
Cir. 2009).
[It is] a less demanding standard than probable cause not only in the sense
that reasonable suspicion can be established with information that is
different in quantity or content than that required to establish probable
cause, but also in the sense that reasonable suspicion can arise from
information that is less reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330 (1990).
The test is one of reasonableness to be determined on a case-by-case basis. See Green v.
State, 348 So. 2d 428, 429 (Miss. 1977). Both the content of information possessed by
police and its degree of reliability must be taken into account. See United States v.
Cortez, 449 U.S. 411, 417 (1981). No single fact is determinative. See U.S. v. Rodriguez,
564 F.3d 735, 741 (5
th
Cir. 2009) (“A ‘divide-and-conquer’ approach to this analysis is
not permitted.”).
Instead,
The reasonable suspicion analysis is a fact-intensive test in which the court
looks at all circumstances together to weigh not the individual layers, but
the laminated total. Factors that ordinarily constitute innocent behavior
may provide a composite picture sufficient to raise reasonable suspicion in
the minds of experienced officers.
U.S. v. Jacquinot, 258 F.3d 423, 427-28 (5
th
Cir. 2001).
Thus, “a brief stop of a suspicious individual, in order to determine [a person’s] identity
or to maintain the status quo momentarily while obtaining more information, may be
most reasonable in light of the facts known to the officer at the time.”Adams v. Williams,
407 U.S. 143, 147 (1972).
Reasonable suspicion to be determined from the totality of the circumstances:
Courts must look at the “totality of the circumstances” of each case to see whether the
detaining officer has a “particularized and objective basis” for suspecting legal
wrongdoing. The officer’s collective knowledge and experience is an important
consideration:
This process allows officers to draw on their own experience and
specialized training to make inferences from and deductions about the
cumulative information available to them that “might well elude an
untrained person.”
U.S. v. Arvizu, 534 U.S. 266, 273 (2002).
See also Anderson v. State, 864 So. 2d 948, 951 (Miss. Ct. App. 2003) (“A collection of
actions which, individually, are subject to innocent explanation may be sufficient to
create reasonable suspicion under the totality of the circumstances.”).
Below are a few cases where our courts have upheld the investigatory stop upon
reasonable suspicion:
• Dies v. State, 926 So. 2d 910, 918 (Miss. 2006) (“[T]he agents identified the
smell of burnt marijuana, and their experience with the Mississippi Bureau of
Narcotics exposed them to that smell on multiple occasions. They were able to
trace the smell back to the red camaro through an open window. They came to this
knowledge while remaining outside of the vehicle in space that was open to the
public.”).
• Wilson v. State, 935 So. 2d 945, 950 (Miss. 2006) (“Officer Young was aware
from the dispatch call that the bank had been robbed, and he was in route to the
bank. On the way to respond, Officer Young testified that he saw an individual
that appeared to be a shoplifter at the County Market. The individual, later
identified as Wilson, was crouched behind cars when the police passed. He then
ran down the street and behind a school bus.”).
• Burchfield v. State, 892 So. 2d 191, 195 (Miss. 2004) (“[T]he police were
informed by a Walgreens clerk that two white males in a Cadillac with Arkansas
license plates had each purchased a quantity of pills containing pseudoephedrine
and were leaving the parking lot, westbound on Goodman Road from Highway
51. Within minutes, officer Thomas spotted two white males in a Cadillac with
Arkansas license plates, on Goodman Road.”).
• Bone v. State, 914 So. 2d 209, 212 (Miss. Ct. App. 2005) (“Thompson's decision
to stop Bone was reasonable. A clerk from Fred's informed Thompson that Bone
had purchased a large amount of pseudoephedrine. Bone proceeded to Kroger.
Thompson personally observed Bone purchase several boxes of pseudoephedrine
at Kroger. Additionally, Thompson verified with the police department that Bone
was driving his vehicle. Furthermore, Thompson received information regarding
Bone's criminal history before proceeding with the stop. Given the available
information, it was reasonable for Thompson to infer that Bone was purchasing
these products with the intent to manufacture narcotics thereby validating the
stop.”).
But there must be a “particularized and objective basis” for suspecting legal wrongdoing
to withstand constitutional scrutiny:
Spooner stated that when he exited his car and identified himself as an
officer, Rainer “began to back out of the parking lot in an effort to flee.”
This bare, uncorroborated assertion is not supported by any facts submitted
by the State. Spooner's report makes no mention of any facts that support
the conclusion that Rainer entered into unprovoked flight at the sight of
the police. For example, there is no evidence of the speed at which Rainer
attempted to exit the parking lot, nor is there evidence that Rainer drove
erratically upon trying to leave. Notably, the lack of evidence of flight
compelled the trial court to mention that “[i]t may very well have been that
[Rainer] was leaving the gas pump simply because he was through getting
his gas and had paid for it.” Accordingly, in the absence of more detail, we
are not prepared to affirm a finding of flight.
Rainer v. State, 944 So. 2d 115, 119 (Miss. Ct. App. 2006).
See also United States v. Hill, 752 F.3d 1029, 1038 (5
th
Cir. 2014) (“The government has
not satisfied its burden under Terry of pointing to specific and articulable facts warranting
reasonable suspicion of criminal activity. . . . Essentially, the police, around 11:00 p.m. at
night, happened upon a car, backed into its space in the parking lot of an apartment
complex with a reputation for drugs, and, at the same time that they arrived, the car's
passenger stepped out and took a few steps away. Reasonable officers in such
circumstances would have very little cause to suspect criminal activity rather than, say, a
couple who just arrived home on a weekend night and were preparing to go inside.”);
Harrell v. State, 109 So. 3d 604, 607 (Miss. Ct. App. 2013) (“When [the officer] stopped
Harrell to obtain his name and social security number, he did not have reasonable
suspicion that any crime—even disobeying a city ordinance—had occurred or was about
to occur. [Thus,] Harrell's Fourth Amendment rights were violated . . . .”).
An anonymous tip may provide the basis for a Terry stop if it is suitably corroborated to
support a finding of reasonable suspicion that criminal activity is afoot. A vague
description that lacks predictive information is constitutionally insufficient:
So we are left to determine whether an anonymous tip—“young men,
young black men, are standing out on the sidewalks, corners, selling
drugs” at the 500 block of Union Street—demonstrates the tipster's
veracity, reliability, and basis of knowledge to support a finding of
reasonable suspicion before Edney stopped Cooper. We find that it does
not.
Cooper v. State, 145 So. 3d 1164, 1169 (Miss. 2014).
Probable cause to believe a traffic violation has occurred is sufficient:
A traffic stop is reasonable if the officer has probable cause to believe that a traffic
violation has occurred. See Brendlin v. California, 551 U.S. 249, 263 (2007); Whren v.
United States, 517 U.S. 806, 810 (1996); Walker v. State, 881 So. 2d 820, 826-27 (Miss.
2004). This is true irrespective of the officer’s motives. See United States v. Colin, 928
F.2d 676, 678 (5
th
Cir. 1991) (“Officer Gomez had probable cause to stop the vehicle.
Because he had probable cause, his motive-even if anything but proper-was irrelevant.”).
It is also true even if the officer doesn’t issue a citation for the predicate traffic violation.
Mosley v. State, 89 So. 3d 41, 47 (Miss. Ct. App. 2012).
Probable cause is a practical, nontechnical concept, based upon the conventional
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act. “It arises when the facts and circumstances within an officer’s
knowledge, or of which he has reasonably trustworthy information, are sufficient in
themselves to justify a man of average caution in the belief that a crime has been
committed and that a particular individual committed it.” Maryland v. Pringle, 540 U.S.
366, 370-71 (2003); Adams v. City of Booneville, 910 So. 2d 720, 722 (Miss. Ct. App.
2005).
Our courts have upheld the following circumstances for conducting a traffic stop:
• No brake lights. See Walker v. State, 881 So. 2d 820 (Miss. 2004).
• Running onto the shoulder of the road. See Leuer v. City of Flowood, 744 So. 2d
266 (Miss. 1999).
• Crossing center line of the road. See Loveless v. City of Booneville, 972 So. 2d
723 (Miss. Ct. App. 2007).
• Driving at night with only one headlight. See Scott v. City of Booneville, 962 So.
2d 698 (Miss. Ct. App. 2007).
• Drifting into the lane of oncoming traffic. See Tran v. State, 963 So. 2d 1 (Miss.
Ct. App. 2006).
• Tint-law violation. See Walker v. State, 962 So. 2d 39 (Miss. Ct. App. 2006).
• Driving in the middle of the two northbound lanes in the early hours of New
Year’s Day. See Adams v. City of Booneville, 910 So. 2d 720 (Miss. Ct. App.
2005).
• Swerving off the side of the road. See Henderson v. State, 878 So. 2d 246 (Miss.
Ct. App. 2004).
• Speeding. See Burnett v. State, 876 So. 2d 409 (Miss. Ct. App. 2004).
• Crossing over double-line multiple times. See Saucier v. City of Poplarville, 858
So. 2d 933 (Miss. Ct. App. 2003).
• Crossing the fog line once, and then again approach or “bump” the fog line. See
Martin v. State, 240 So. 3d 1047, 1054 (Miss. 2017).
• No valid tag displayed. See Gonzales v. State, 963 So. 2d 1138 (Miss. 2007).
• Seat belt violation. See Austin v. State, 72 So. 3d 565 (Miss. Ct. App. 2011).
C Revving engine and spinning wheels, i.e., a “burnout” See Fogleman v. State, 311
So. 3d 1221 (Miss. Ct. App. 2021).
But a random traffic stop simply to check for a valid driver’s license and registration is
not reasonable. See Delaware v. Prouse, 440 U.S. 648, 663 (1979).
Tip of erratic driving as a basis for the stop:
An officer may conduct a traffic stop upon a tip of erratic driving if:
• the tip contains is a sufficient indicia of reliability, including predictive
information that tests the informant's knowledge or credibility. See Alabama v.
White, 496 U.S. 325, 332 (1990); Williamson v. State, 876 So. 2d 353, 355 (Miss.
2004); and
• the tip is reliable in its assertion of illegality, not just in its tendency to identify a
particular person. See Florida v. J.L., 529 U.S. 266, 267-72 (2000).
There is no requirement that the officer actually observe the erratic driving to make the
stop:
Officer Palmer merely investigated a complaint received from the
dispatcher regarding a reckless driver. The public concern served by the
seizure is evident-a reckless driver poses a mortal danger to others. . . .
[He] had a duty to investigate the detailed complaint given to the police
department concerning a driver who may have been ill, impaired, reckless
or dangerous to the public.
Floyd v. City of Crystal Springs, 749 So. 2d 110, 117 (Miss. 1999).
Instead, the court must consider the totality of the circumstances. See, e.g., Navarette v.
California, 134 S.Ct. 1683, 1692 (2014) (“Under the totality of the circumstances . . . the
officer [had] reasonable suspicion that the driver of the reported vehicle had run another
vehicle off the road.”); Alabama v. White, 496 U.S. 325, 332 (1990) (“When significant
aspects of the caller's predictions were verified, there was reason to believe not only that
the caller was honest but also that he was well informed, at least well enough to justify
the stop.”); Cook v. State, 159 So. 3d 534, 541 (Miss. 2015) (“The lack of sufficient
indicia of reliability in today's case, coupled with the officers’ failure to corroborate the
criminal activity reported, results in the stop violating Cook’s Fourth–Amendment right
to be secure from unreasonable searches and seizures.”); Page v. State, 2018 WL
1062645 (Miss. Ct. App. 2018) (“The fact that the tipster had been participating in the
same AA meeting as Page and personally witnessed Page's behavior, speaks to the tip's
reliability regardless of whether the tipster had provided credible information to the
police in the past.”).
Reasonable suspicion transferrable:
Reasonable suspicion (and probable cause) can be transferred from officer to officer and
police department to police department: “There is no reason why information received
from another law enforcement official, who has a sworn duty to uphold the law, should be
any less reliable than information received from an informant [whose] credibility, in
many situations, is uncertain.” Dies v. State, 926 So. 2d 910, 920 (Miss. 2006).
Mistake in law allowable as a basis for the stop:
A mistake in law may provide probable cause for a stop:
[A] good faith, reasonable belief that a traffic law has been violated may
give an officer probable cause to stop a vehicle, even though, in hindsight,
a mistake of law was made and the defendant is acquitted of the traffic
violation.
Adams v. City of Booneville, 910 So. 2d 720, 724 (Miss. Ct. App. 2005).
See also Harrison v. State, 800 So. 2d 1134, 1139 (Miss. 2001) (“Regardless of whether
there were construction workers present in the area the deputies had an objective
reasonable basis for believing that Harrison violated the traffic laws of Mississippi by
exceeding the speed limit.”).
But any mistake in law must have a reasonable basis:
Officer Vincent had no reasonable basis to believe that Couldery was
committing a traffic violation in driving in the left-hand lane of the
interstate. Under the totality of the circumstances, Officer Vincent lacked a
reasonable basis for his stop, and the stop was not proper. Accordingly, the
trial court erred in not suppressing all contraband which stemmed from
this stop.
Couldery v. State, 890 So. 2d 959, 965-66 (Miss. Ct. App. 2004).
Traffic stops may not extend beyond a reasonable duration:
An investigatory stop must be temporary and last no longer than is necessary to effectuate
the purpose of the stop. See Haddox v. State, 636 So. 2d 1229, 1234 (Miss. 1994).
Further, the investigative methods employed should be the least intrusive means
reasonably available to verify or dispel the officer’s suspicion. See Florida v. Royer, 460
U.S. 491, 501 (1983). The reasonableness of an investigatory stop is determined by
balancing the scope of the intrusion against the governmental interest in conducting the
stop and, then, deciding if a person of reasonable caution and belief would find the action
taken appropriate. When conducting a traffic stop the officer may:
• request to examine a driver's license and vehicle registration or rental papers and
to run a computer check on both. See United States v. Estrada, 459 F.3d 627, 631
(5
th
Cir. 2006); U.S. v. Brigham, 382 F.3d 500, 508 (5
th
Cir. 2004); and
• ask about the purpose and itinerary of a driver's trip during the traffic stop. See
United States v. Gonzalez, 328 F.3d 755, 758-59 (5
th
Cir. 2003).
Additionally,
An officer may ask questions outside the scope of the stop, but only so
long as such questions do not extend the duration of the stop. It is the
length of the detention, not the questions asked, that makes a specific stop
unreasonable: the Fourth Amendment prohibits only unreasonable
seizures, not unreasonable questions, and law enforcement officers are
always free to question individuals if in doing so the questions do not
effect a seizure.
U.S. v. Machuca-Barrera, 261 F.3d 425, 432 (5
th
Cir. 2001).
“There is . . . no constitutional stopwatch on traffic stops. Instead, the relevant question
in assessing whether a detention extends beyond a reasonable duration is ‘whether the
police diligently pursued a means of investigation that was likely to confirm or dispel
their suspicions quickly.’” U.S. v. Brigham, 382 F.3d 500, 511 (5
th
Cir. 2004) (citing
U.S. v. Sharpe, 470 U.S. 675, 686 (1985)). But once the purpose of a valid traffic stop
has been completed and an officer’s initial suspicions have been verified or dispelled, the
detention must end unless there is additional reasonable suspicion supported by
articulable facts. See, e.g., United States v. Estrada, 459 F.3d 627, 633 (5th Cir. 2006)
(“[T]he discovery of the scratch marks and the adhesive created a reasonable belief that
the vehicle contained a false compartment that has recently been used, and this belief
created at least reasonable suspicion.”); United States v. Alvarado, 989 F. Supp. 2d 505,
520 (S.D. Miss. 2013), (“Under the circumstances of this case, the fact that the passengers
were Spanish-speaking did not justify Alvarado's continued detention after the purpose of
the stop had been fulfilled.”).
Protective search incident to a traffic stop:
“It is a fundamental concept of police work that officers, in the course of conducting an
investigation that involves close contact with persons suspected of criminal activity, are
entitled to take reasonable precautions to ensure their safety.” Dees v. State, 758 So. 2d
492, 495 (Miss. Ct. App. 2000). Incident to a traffic stop, an officer may order the driver
and passengers out of the vehicle. See Maryland v. Wilson, 519 U.S. 408, 415 (1997);
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977). If there is an articulable and
reasonable belief that the driver or passengers are armed and dangerous, the officer may
frisk the outer clothing for concealed weapons. See Terry v. Ohio, 392 U.S. 1, 30 (1968);
United States v. Colin, 928 F.2d 676, 678 (5
th
Cir. 1991). Further, if there is an
articulable and reasonable belief that the driver or passengers are dangerous and might
access the vehicle to gain immediate control of weapons, the officer may search the
interior of the vehicle for concealed weapons–including the passenger compartment and
any open or closed containers that might contain a weapon. See Michigan v. Long, 463
U.S. 1032, 1049-51 (1983). But a protective search for weapons is not a general warrant
to rummage and seize at will. See Texas v. Brown, 460 U.S. 730, 748 (1983). The key
inquiry is whether the steps taken to ensure the safety of the officer were reasonable:
Police may search a vehicle incident to a recent occupant's arrest only if
the arrestee is within reaching distance of the passenger compartment at
the time of the search or it is reasonable to believe the vehicle contains
evidence of the offense of arrest. When these justifications are absent, a
search of an arrestee's vehicle will be unreasonable unless police obtain a
warrant or show that another exception to the warrant requirement applies.
Arizona v. Gant, 556 U.S. 332, 351 (2009).
In Gant, the U.S. Supreme Court held that the police had overstepped the constitutional
limitations:
[Once handcuffed and secured in a patrol car,] Gant clearly was not within
reaching distance of his car at the time of the search. . . . An evidentiary
basis for the search was also lacking in this case. . . . Gant was arrested for
driving with a suspended license-an offense for which police could not
expect to find evidence in the passenger compartment of Gant's car.
Because police could not reasonably have believed either that Gant could
have accessed his car at the time of the search or that evidence of the
offense for which he was arrested might have been found therein, the
search in this case was unreasonable.
Arizona v. Gant, 556 U.S. 332, 344 (2009).
Thus, a protective search may not escalate into an evidentiary search absent some
independent probable cause to arrest or other exception. See Tate v. State, 946 So. 2d
376, 384 (Miss. Ct. App. 2006) (“Agent Lea stated that the when he touched the bulge, he
could feel stems and seeds through the fabric of Tate’s shorts that he thought [based upon
his six years of experience as a narcotics officer] was marijuana. . . . Agent Lea had the
requisite probable cause to . . . reach into Tate’s shorts and remove the bag.”); McFarlin
v. State, 883 So. 2d 594, 599 (Miss. Ct. App. 2004) (“Even if [the officer] had been
authorized to do a pat down search for weapons under Terry, his identification of a small
‘knot like nudge’ was unreasonable. The continued exploration of McFarlin’s pockets
after determining that no weapon was present amounts to ‘the sort of evidentiary search
that Terry expressly refused to authorize.’”).
Smell of marijuana emanating from vehicle:
“The smell of marijuana constitutes reasonable suspicion and supports further
investigation of suspected criminal offense, including the search of the passengers and
interior of a vehicle.” Walker v. State, 962 So. 2d 39, 42 (Miss. Ct. App. 2006). An arrest
following a plain view seizure allows an officer to conduct a search of the immediate
surrounding area for weapons and evidence of criminal conduct. See McFarland v. State,
936 So. 2d 960, 963 (Miss. Ct. App. 2006).
No stop occurs if person resists or flees:
For a stop to take place there must be either physical force or submission to the assertion
of authority. If a person who is ordered to stop resists by walking away or fleeing, then no
stop has occurred. Even if the order to stop is unreasonable, any contraband discarded in
flight is considered abandoned property and not the fruit of an unlawful seizure or arrest.
See California v. Hodari, 499 U.S. 621,626 (1991); Harper v. State, 635 So. 2d 864, 866-
867 (Miss. 1994).
504 FRISK
After making a lawful stop, an officer possessing an articulable and reasonable belief that
the person is armed and dangerous may conduct a limited search for concealed weapons.
See Terry v. Ohio, 392 U.S. 1, 30 (1968). And that search is not strictly limited to patting
down a suspect’s outer clothing. See Parks v. State, 172 So. 3d 1237, 1241 (Miss. Ct.
App. 2015) (“Agent Walker stated that Parks was wearing a ‘large shirt’ that ‘was
definitely not tight on his skin’ and that, in his experience, a weapon is often concealed in
the waistband of a suspect's pants. . . . [His] slight lifting of the shirt to view Parks's
waistband was a ‘limited intrusion’ in this instance, and we find that his actions did not
violate Parks’s Fourth Amendment rights.”). In assessing whether the protective search
for weapons was reasonable, the court must determine if a reasonably prudent person in
the circumstances would be warranted in the belief that the safety of the officer or others
was in danger. See Ybarra v. Illinois, 444 U.S. 85, 93 (1979) (“[T]he State is unable to
articulate any specific fact that would have justified a police officer at the scene in even
suspecting that Ybarra was armed and dangerous.”). But a protective search for weapons
is not a general warrant to rummage and seize at will. See Texas v. Brown, 460 U.S. 730,
748 (1983). That is, the limited search for weapons may not escalate into an evidentiary
search absent some independent probable cause to arrest or other exception:
Even if [the officer] had been authorized to do a pat down search for
weapons under Terry, his identification of a small “knot like nudge” was
unreasonable. The continued exploration of McFarlin’s pockets after
determining that no weapon was present amounts to the sort of evidentiary
search that Terry expressly refused to authorize.
McFarlin v. State, 883 So. 2d 594, 599 (Miss. Ct. App. 2004).
But if there is probable cause through the sense of touch, the officer may seize the
detected contraband:
Regardless of whether the officer detects the contraband by sight or by
touch, however, the Fourth Amendment's requirement that the officer have
probable cause to believe that the item is contraband before seizing it
ensures against excessively speculative seizures.
Minnesota v. Dickerson, 508 U.S. 366, 376 (1993).
See also United States v. Mitchell, 832 F. Supp. 1073, 1079 (N.D. Miss. 1993) (“[T]he
court is not convinced that under the facts of this case, an ‘immediately apparent’
determination of contraband is within the realm of human capability with a single pass of
one's hand over the outer clothing.”); Tate v. State, 946 So. 2d 376, 384 (Miss. Ct. App.
2006) (“Agent Lea stated that the when he touched the bulge, he could feel stems and
seeds through the fabric of Tate’s shorts that he thought [based upon his six years of
experience as a narcotics officer] was marijuana. . . . Agent Lea had the requisite probable
cause to . . . reach into Tate’s shorts and remove the bag.”); Anderson v. State, 16 So. 3d
756, 762 (Miss. Ct. App. 2009) (“Deputy Truett could not ascertain the contents of the
pill bottle by touch. It was only . . . by reaching inside Anderson's pocket, removing the
pill bottle, and visually inspecting its contents that [he] was able to determine that the pill
bottle may have contained narcotics. . . . [W]e reverse the circuit court's decision to admit
the evidence seized incident to [the] pat-down search.”).
A simple request to voluntarily empty one’s pockets may be considered reasonable in
certain circumstances:
[Officer] Gray further testified that for safety, “I patted him down for
weapons. Well, Mr. Shannon had a coat on, and there are times when you
pat someone down, if they have a coat on, that you could possibly miss
something. So I asked Mr. Shannon ... ‘If you don't mind, could you empty
the contents of your pockets on the trunk of the car there?’” . . . We hold
that the seizure of the cocaine was the result of a valid investigative stop.
The seized cocaine was not the fruit of an illegal arrest. What emerged was
a temporary, investigatory stop, or a voluntary conversation, that was
reasonable under the circumstances.
Shannon v. State, 739 So. 2d 468, 471 (Miss. Ct. App. 1999).
505 CHECKPOINTS
Balancing test for reasonableness:
A Fourth Amendment “seizure” occurs when a vehicle is stopped at a checkpoint. See
United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976). Whether the checkpoint stop
is “reasonable” under a Fourth Amendment analysis is determined by balancing:
• the gravity of the public concerns served by the seizure;
• the degree to which the seizure advances the public interest; and
• the severity of the interference with individual liberty.
See Michigan Department of State Police v. Sitz, 496 U.S. 444, 447-55 (1990);
McLendon v. State, 945 So. 2d 372, 379 (Miss. 2006); Rogowski v. State, 145 So. 3d
1232, 1236 (Miss. Ct. App. 2014); Graham v. State, 878 So. 2d 162, 165 (Miss. Ct. App.
2004).
Gravity of the public concerns served by the seizure:
The State has a legitimate interest in the health, safety, and welfare of its citizens.
However, if the primary purpose of the State’s legitimate interest in conducting the
checkpoint is not distinct from a “general interest in crime control” (i.e., an interest in
detecting evidence of ordinary criminal wrongdoing) then the ensuing stop is
unreasonable. See City of Indianapolis v. Edmond, 531 U.S. 32, 37-44 (2000).
Primary interests distinct from a general interest in crime control include:
C Sobriety checkpoints to remove drunk drivers from the road. See Michigan
Department of State Police v. Sitz, 496 U.S. 444, 455 (1990); Sasser v. City of
Richland, 850 So. 2d 206, 208 (Miss. Ct. App. 2003).
C Driver’s license, insurance card, registration, or inspection checkpoints to ensure
that drivers are properly licensed and that vehicles are properly registered and
periodically inspected. See City of Indianapolis v. Edmond, 531 U.S. 32, 39
(2000); McLendon v. State, 945 So. 2d 372, 379 (Miss. 2006); Caissie v. State,
254 So.3d 849, 853 (Miss. Ct. App. 2018); Hampton v. State, 966 So. 2d 863, 867
(Miss. Ct. App. 2007); Dixon v. State, 828 So. 2d 844, 846 (Miss. Ct. App. 2002);
Briggs v. State, 741 So. 2d 986, 989 (Miss. Ct. App. 1999).
C Roadside truck weigh-stations and inspection checkpoints. See Delaware v.
Prouse, 440 U.S. 648, 663 n.26. (1979); Edwards v. State, 795 So. 2d 554, 557-58
(Miss. Ct. App. 2001).
C Illegal game or firearms checkpoints in a game management area. See Drane v.
State, 493 So. 2d 294, 296-97 (Miss. 1986).
C Border checkpoints to detect illegal aliens. See United States v. Martinez-Fuerte,
428 U.S. 543, 545-67 (1976).
C Certain exigencies warranting “an appropriately tailored” checkpoint, e.g., to
thwart an imminent terrorist attack or to catch an escaping criminal. See City of
Indianapolis v. Edmond, 531 U.S. 32, 44 (2000).
“[I]t is the primary purpose which determines whether a roadblock is constitutional.”
Dale v. State, 785 So. 2d 1102, 1105 (Miss. Ct. App. 2001). Minor deviations in
departmental policies ordinarily will not affect the validity of the stop if there is a
legitimate public safety purpose and the roadblock is conducted in a safe and reasonable
manner. See Field v. State, 28 So. 3d 697, 706 (Miss. Ct. App. 2010).
Degree to which the seizure advances the public interest:
To be reasonable under a Fourth Amendment analysis, the State must show some
measure of empirical evidence that the roadblock advances the State’s interest. See, e.g.,
Michigan Department of State Police v. Sitz, 496 U.S. 444, 455 (1990) (1.6 percent of
drivers passing through the checkpoint arrested for alcohol impairment sufficient); United
States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976) (0.5 percent ratio of illegal aliens
detected to vehicles stopped sufficient). The mere fact that a reasonable alternative to a
checkpoint is available is inconsequential:
[F]or purposes of Fourth Amendment analysis, the choice among such
reasonable alternatives remains with the governmental officials who have
a unique understanding of, and a responsibility for, limited public
resources, including a finite number of police officers.
Michigan Department of State Police v. Sitz, 496 U.S. 444, 453-54 (1990).
Severity of the interference with individual liberty:
Random spot checks or roving-patrol stops are unreasonable since such involve an
unconstrained exercise of discretion. See Delaware v. Prouse, 440 U.S. 648, 661 (1979).
But routine checkpoint stops are far less intrusive:
First, the potential interference with legitimate traffic is minimal. Motorists using
these highways are not taken by surprise as they know, or may obtain knowledge
of, the location of the checkpoints and will not be stopped elsewhere. Second,
checkpoint operations both appear to and actually involve less discretionary
enforcement activity. The regularized manner in which established checkpoints
are operated is visible evidence, reassuring to law-abiding motorists, that the stops
are duly authorized and believed to serve the public interest.
United States v. Martinez-Fuerte, 428 U.S. 543, 559 (1976).
The State’s interest in conducting stationary roadblocks in which every vehicle is stopped
substantially outweighs the minimal intrusion of the motorist’s individual liberty. See
McLendon v. State, 945 So. 2d 372, 382 (Miss. 2006). Further, because this type of
checkpoint is considered routine and not random, there is no requirement that the officers
keep a logbook detailing how many cars were stopped or given tickets. See McLendon v.
State, 945 So. 2d 372, 382 (Miss. 2006) (“McLendon fails to recognize that while there
were no written guidelines or set procedures in place, the officers stopped every single
vehicle which came through the roadblock. Thus, there was no unbridled officer
discretion since the officers did not choose who to stop or who not to stop.”).
When a motorist evades a checkpoint:
When a motorist evades a roadblock, police may stop the vehicle to check the validity of
the license tag and inspection sticker. See Boches v. State, 506 So. 2d 254, 264 (Miss.
1987); Boyd v. State, 751 So. 2d 1050, 1052 (Miss. Ct. App. 1998). Such an
investigative stop must be reasonably related in scope to the circumstances which
justified the interference in the first place. See Terry v. Ohio, 392 U.S. 1, 20 (U.S. 1968).
In assessing whether a detention is too long in duration, the court should look to see
whether the police diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly during which time it was necessary to detain the
defendant. See United States v. Sharpe, 470 U.S. 675, 686 (1985). Where a detention
exceeds the scope of an investigative stop, it approaches a seizure. See Boches v. State,
506 So. 2d 254, 264 (Miss. 1987); McCray v. State, 486 So. 2d 1247, 1250 (Miss.1986).
506 CONSENT
Consent is voluntary permission to search. It may general or limited. See Florida v.
Jimeno, 500 U.S. 248, 251 (1991) (“We think that it was objectively reasonable for police
to conclude that the general consent to search respondent’s car included consent to search
containers within that car which might bear drugs.”); Buford v. State, 2020 WL 5793287
(Miss. Ct. App. 2020) (“The United States Supreme Court has determined that the correct
question to ask is, “[W]hat would the typical reasonable person have understood by the
exchange between the officer and the suspect?” Id. (quoting Florida v. Jimeno, 500 U.S.
248 (1991)). In this case, the officer's testimony reflects that Buford consented to a search
of his person “and anything on him.” It is objectively reasonable that an officer, having
received consent to search “the person and anything on him,” would believe that he had
received consent to examine what he found after conducting that search.”).
Whether consent is voluntary is determined from the totality of the circumstances. See
Ohio v. Robinette, 519 U.S. 33, 40 (1996); Comby v. State, 901 So. 2d 1282, 1285 (Miss.
Ct. App. 2004). The Mississippi Constitution requires clear evidence of a knowledgeable
waiver of the right not to be searched. Simply not objecting to the search is insufficient
to constitute a valid waiver. See Penick v. State, 440 So. 2d 547, 551 (Miss. 1983). On
the other hand, there is no absolute requirement that the person receive “Miranda-like”
notification of the right to refuse the officer’s request to search. See Logan v. State, 773
So. 2d 338, 343 (Miss. 2000). Also, the State does not have the initial burden to
demonstrate a knowledgeable waiver. Instead, the burden is on the defendant to raise the
issue of lack of knowledgeable waiver by showing impaired consent or some diminished
capacity. See Jones v. Mississippi Department of Public Safety, 607 So. 2d 23, 26-28
(Miss. 1991); Graves v. State, 708 So. 2d 858, 863-64 (Miss. 1997); Milliorn v. State,
755 So. 2d 1217, 1222 (Miss. Ct. App. 1999). A consent to search is not effective if it is
tainted by an illegal search or seizure. See Florida v. Royer, 460 U.S. 491, 507-08 (1983).
Third party consent is proper where there is common authority (i.e., mutual use of
property by those with joint access or control) over the property. See Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990). In making this determination, it is sufficient that
an officer is acting upon a reasonable belief that the third party giving consent possessed
the authority to give consent:
The police were reasonable in their belief that [third party] had common
authority . . . [where the person] was title holder, told them she owned the
car and provided keys to enter.
Mettetal v. State, 615 So. 2d 600, 603 (Miss. 1993).
The key question is whether the facts available to the officer at the moment warrant a man
of reasonable caution in the belief that the consenting party had authority over the
property. Peters v. State, 920 So. 2d 1050, 1056 n.1 (Miss. Ct. App. 2006). But this
analysis is dependent on whether a physically present co-occupant makes an express
refusal of consent. See Fernandez v. California, 134 S.Ct. 1126, 1134 (2014) (“We
therefore hold that an occupant who is absent due to a lawful detention or arrest stands in
the same shoes as an occupant who is absent for any other reason.”); Georgia v.
Randolph, 547 U.S. 103, 122-23 (2006) (“This case invites a straightforward application
of the rule that a physically present inhabitant’s express refusal of consent to a police
search is dispositive as to him, regardless of the consent of a fellow occupant.”). A
person having no privacy interest in the property searched lacks standing to challenge the
validity of consent given. See Ross v. State, 954 So. 2d 968, 996 (Miss. 2007).
507 SEARCH INCIDENT TO A LAWFUL ARREST
A search incident to a lawful arrest is to disarm the suspect being taken into custody and
to preserve evidence of criminal conduct. See United States v. Robinson, 414 U.S. 218,
235 (1973). But it can precede the formal arrest if probable cause for making the arrest
was already present:
Where the formal arrest followed quickly on the heels of the challenged
search of the petitioner’s person, we do not believe it particularly
important that the search preceded the arrest or visa versa.
Rawlings v. Kentucky, 448 U.S. 98, 111 (1980).
See also Ellis v. State, 573 So. 2d 724, 726 (Miss. 1990) (“Further clarification came in
Rawlings v. Kentucky, . . . .”); Williams v. State, 763 So. 2d 202, 205 (Miss. Ct. App.
2000) (“[Defendant’s] admission of possession of marijuana gave the officers probable
cause to arrest him for that crime, thereby allowing a search incident to that arrest, which
in turn yielded the crack.”).
In conducting a search incident to a lawful arrest, the officer may search the arrestee and
the immediate surrounding area for weapons and evidence of criminal conduct. See
Chimel v. California, 395 U.S. 752, 763 (1969) (“There is ample justification, therefore,
for a search of the arrestee’s person and the area ‘within his immediate
control’—construing that phrase to mean the area from within which he might gain
possession of a weapon or destructible evidence.”); Rankin v. State, 636 So. 2d 652, 657
(Miss. 1994) (“The area within the arrestee’s immediate control, from which he might
obtain a weapon or where he may conceal evidence, may also be searched, consistent
with the Fourth Amendment.”). But the search may not be conducted if it is too remote in
time or place to have been incidental to the arrest. Instead it must be “reasonably
contemporaneous” to the arrest in light of the particular circumstances. See Preston v.
United States, 376 U.S. 364, 367 (1964); United States v. Maslanka, 501 F.2d 208, 214
(5
th
Cir. 1974); Gales v. State, 153 So. 3d 632, 643 (Miss. 2014).
Moreover, Gant applies when searching a vehicle incident to a recent occupant’s arrest:
Police may search a vehicle incident to a recent occupant’s arrest only if
the arrestee is within reaching distance of the passenger compartment at
the time of the search or it is reasonable to believe the vehicle contains
evidence of the offense of arrest. When these justifications are absent, a
search of an arrestee’s vehicle will be unreasonable unless police obtain a
warrant or show that another exception to the warrant requirement applies.
Arizona v. Gant, 556 U.S. 332, 351 (2009).
See also Knowles v. Iowa, 525 U.S. 113, 114 (1998) (“[The officer] issued [the driver] a
[speeding] citation rather than arresting him. [The Fourth Amendment prohibits] a full
search of the car.”).
508 PROTECTIVE SWEEP
Police who lawfully enter a home for a legitimate law enforcement purpose may make a
“protective sweep” of the premises to prevent an ambush. But the sweep may last no
longer than is necessary to dispel a reasonable suspicion of danger. See Maryland v. Buie,
494 U.S. 325, 335 (1990). The plain view exception applies to protective sweeps. See
McNeil v. State, 813 So. 2d 767, 770-72 (Miss. Ct. App. 2002).
509 VEHICLE SEARCH
The vehicle exception to the warrant requirement arises out of both a diminished
expectation of privacy in a vehicle as well as the exigency created by its mobility. See
Cady v. Dombrowski, 413 U.S. 433, 442 (1973). But it applies even in situations where
the vehicle has been immobilized or is unmovable. See Moore v. State, 787 So. 2d 1282,
1288 (Miss. 2001). Officers who have legitimately stopped a vehicle and who have
probable cause to believe that the vehicle contains contraband may conduct without a
warrant as thorough a search as a magistrate could authorize by a warrant–including the
search of open or closed containers. See Maryland v. Dyson, 527 U.S. 465, 466 (1999);
Wyoming v. Houghton, 526 U.S. 295, 307 (1999); United States v. Ross, 456 U.S. 798,
823 (1982); United States v. Castelo, 415 F.3rd 407, 412 (5
th
Cir. 2005); Jim v. State, 911
So. 2d 658, 660-61 (Miss. Ct. App. 2005). The smell of marijuana is sufficient probable
cause for a vehicle search. Townsend v. State, 681 So. 2d 497, 502 (Miss. 1996); Fleming
v. State, 502 So. 2d 327, 328 (Miss. 1987). The actual search may occur after the lawful
seizure of the vehicle:
Because it is undisputed that Sorge had probable cause to search the
oxygen tanks that he found in Malloy’s vehicle, it was permissible for him
to conclude the search away from the scene after a brief delay.
United States v. Malloy, 217 F.Appx. 342, 346 (5
th
Cir. 2007).
510 DOG SNIFFS
A “dog sniff” of closed containers in plain view by well-trained narcotics agents does not
constitute a “search” within the meaning of the Fourth Amendment. See United States v.
Place, 462 U.S. 696, 707 (1983). This includes a “dog sniff” around the exterior of a
vehicle following a valid traffic stop or lawful seizure of the vehicle. See Illinois v.
Caballes, 543 U.S. 405, 410 (2005); United States v. Seals, 987 F.2d 1102, 1106 (5
th
Cir.
1993); Jaramillo v. State, 950 So. 2d 1104, 1107 (Miss. Ct. App. 2007). A relatively
brief detention is permissible to resolve a reasonable, articulable suspicion of drug
trafficking. See Wade v. State, 33 So. 3d 498, 506 (Miss. Ct. App. 2009) (“The record
reflects that it took just three minutes to respond with a dog [to resolve the officer’s
reasonable suspicion that the driver was smuggling narcotics.]”). But an excessively
prolonged detention of the driver and vehicle for purposes of conducting a “dog sniff’
may require probable cause. See United States v. Zucco, 71 F.3d 188, 191 (5
th
Cir. 1995).
Once the dog “alerts” to the presence of drugs, the officer has probable cause to search
the area to which the dog alerted. See Shelton v. State, 45 So. 3d 1203, 1209 (Miss.
2010); Millsap v. State, 767 So. 2d 286, 292 (Miss. Ct. App. 2000). Officers may employ
any “necessary and reasonable” means to carry out the search:
That the officers had to use tools to extricate the metal panel where the
police dog indicated the presence of an illegal substance is of no
consequence. Once the dog alerted to that particular area, the officers had
probable cause to search which included the necessary and reasonable
means to carry out the search.
Hurlburt v. State, 803 So. 2d 1277, 1281 (Miss. Ct. App. 2002).
The reliability of the dog’s alert is to be viewed through the lens of common sense:
If the State has produced proof from controlled settings that a dog
performs reliably in detecting drugs, and the defendant has not contested
that showing, then the court should find probable cause. If, in contrast, the
defendant has challenged the State's case (by disputing the reliability of the
dog overall or of a particular alert), then the court should weigh the
competing evidence.
Florida v. Harris, 133 S.Ct. 1050, 1058 (2013).
511 INVENTORY
An inventory of a lawfully impounded or seized vehicle conducted in good faith pursuant
to reasonable police procedures is constitutionally permissible. See Colorado v. Bertine,
479 U.S. 367, 374 (1987); Ray v. State, 798 So. 2d 579, 583-84 (Miss. Ct. App. 2001).
Its purpose is to:
• to protect an owner’s property while in the custody of the police;
• to insure against claims of lost, stolen or vandalized property, and
• to protect the police from potential dangers.
See South Dakota v. Opperman, 428 U.S. 364, 369 (1976); Bolden v. State, 767 So. 2d
315, 317 (Miss. Ct. App. 2000).
It must be conducted either contemporaneously with the impoundment of the vehicle or
as soon thereafter as is reasonably safe and practical. See Black v. State, 418 So. 2d 819,
823 (Miss. 1982). “Plain view” evidence may be seized. See Michigan v. Thomas, 458
U.S. 259, 262 (1982); Harris v. United States, 390 U.S. 234, 236 (1968); Jackson v. State,
440 So. 2d 307, 310 (Miss. 1983). In any event, an inventory may not be employed as a
ruse to rummage for incriminating evidence. Standardized criteria or established routine
may provide sufficient latitude to determine whether a particular container should or
should not be opened in light of the nature of the search and the characteristics of the
container itself. See Florida v. Wells, 495 U.S. 1, 4 (1990).
512 STATIONHOUSE SEARCH
As part of a routine administrative procedure and incident to booking and jailing a
suspect, police may conduct a search of any container or article found on or in the
possession of the arrested suspect. See Rankin v. State, 636 So. 2d 652, 657 (Miss. 2001).
The purpose of the search is to inventory property and to guard against concealed
dangers:
[I]t is not “unreasonable” for police, as part of the routine procedure
incident to incarcerating an arrested person, to search any container or
article in his possession, in accordance with established inventory
procedures.
Illinois v. Lafayette, 462 U.S. 640, 648 (1983).
513 EMERGENCY SITUATION
An emergency situation excuses the need to obtain a warrant if from the totality of the
circumstances:
• the officer has reasonable grounds to believe that there is an emergency at hand
and an immediate need for the officer’s assistance to protect life or property,
• the search is not primarily motivated by intent to arrest and seize evidence, and
• there is some reasonable basis, approximating probable cause, to associate the
emergency with the area or place to be searched.
See Michigan v. Fisher, 558 U.S. 45, 49 (2009) (“Officers do not need ironclad proof of
‘a likely serious, life-threatening’ injury to invoke the emergency aid exception.”);
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (“One exigency obviating the
requirement of a warrant is the need to assist persons who are seriously injured or
threatened with such injury.”); Cady v. Dombrowski, 413 U.S. 433, 448 (1973) (“Where,
as here, the trunk of an automobile, which the officer reasonably believed to contain a
gun, was vulnerable to intrusion by vandals, we hold that the search was not
‘unreasonable’ within the meaning of the Fourth and Fourteenth Amendments.”).
514 TO PREVENT THE DESTRUCTION OF EVIDENCE
If an officer has probable cause to conduct a search, but the delay in procuring a valid
search warrant would create a substantial risk of imminent destruction of contraband the
warrant requirement may be excused.
If the exigencies had been such that a delay in procuring a valid warrant
would have created a substantial risk of imminent destruction of
contraband or the like, the warrant requirement could have been excused;
but where time permits the constitution requires allegations of probable
cause supported by a statement of underlying facts or circumstances so
that a judicial determination of probable cause might be made.
Washington v. State, 382 So. 2d 1086, 1088 (Miss. 1980).
See also Missouri v. McNeely, 133 S.Ct. 1552, 1563-68 (2013) (“Whether a warrantless
blood test of a drunk-driving suspect is reasonable must be determined case by case based
on the totality of the circumstances. . . . [T]he natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case sufficient to justify conducting
a blood test without a warrant.”); Vaughn v. State, 972 So. 2d 56, 61 (Miss. Ct. App.
2008) (“Vaughn’s blood needed to be tested quickly in order to preserve the evidence of
drugs or alcohol in his system. [E]xigent circumstances existed to permit a search.”).
Factors to consider include:
• the degree of urgency involved and the amount of time necessary to obtain a
warrant;
• the reasonable belief that contraband is about to be removed;
• the possibility of danger to police officers guarding the site of contraband while a
search warrant is sought;
• information that the possessors of the contraband are aware that the police are on
their trail; and
• the ready destructibility of the contraband.
United States v. Blount, 123 F.3d 831, 837 (5th Cir.1997).
See also United States v. Morales, 171 F.3d 978, 982 (5
th
Cir. 1999) (“The record reflects
no evidence that the contraband was about to be removed or destroyed. The officers
could have waited while a search warrant was obtained with little or no danger to the
officers guarding the warehouse.”); United States v. Woods, 416 F. Supp. 2d 489, 495
(N.D. Miss. 2006) (“[T]he agents could not obtain a warrant in the short period of time
that it took Woods to discard the [pornographic] material, pour gasoline on it and burn
it.”).
But police cannot create the exigency by violating or threatening to violate the Fourth
Amendment.
Officer Cobb testified without contradiction that the officers “banged on
the door as loud as [they] could” and announced either “ ‘Police, police,
police’ ” or “ ‘This is the police.’ ” This conduct was entirely consistent
with the Fourth Amendment, and we are aware of no other evidence that
might show that the officers either violated the Fourth Amendment or
threatened to do so (for example, by announcing that they would break
down the door if the occupants did not open the door voluntarily).
Kentucky v. King, 131 S.Ct. 1849, 1863 (2011).
Any imposed restraint must be both limited and tailored reasonably to secure law
enforcement needs while protecting privacy interests:
Police officers, with probable cause to believe that a man had hidden
marijuana in his home, prevented that man from entering the home for
about two hours while they obtained a search warrant. . . . We conclude
that the officers acted reasonably.
Illinois v. McArthur, 531 U.S. 326, 328 (2001).
515 HOT PURSUIT
Officers in “hot pursuit” of a criminal suspect are not required to delay in the course of
the investigation if to do so would gravely endanger their lives or the lives of others. See
U.S. v. Santana, 427 U.S. 38, 43 (1976) (“The District Court was correct in concluding
that ‘hot pursuit’ means some sort of a chase, but it need not be an extended hue and cry
‘in and about (the) public streets.’”); United States v. Hardy, 2007 WL 683941 (S.D.
Miss.) (“[T]he officers plainly were in hot pursuit of an armed and dangerous suspect at
the time they searched Odie’s apartment. Those exigent circumstances justified searching
the apartment without first obtaining a warrant.”). The permissible scope of the search is
as broad as may be reasonably necessary to prevent the dangers which could arise from
the pursuit. See Maryland Penitentiary v. Hayden, 387 U.S. 294, 298-300 (1967); Hall v.
State, 288 So. 2d 850, 852 (Miss. 1974).
516 THE EXCLUSIONARY RULE
General considerations:
The Fourth Amendment prohibition against unreasonable searches and seizures applies to
States through the Due Process Clause of the Fourteenth. See Mapp v. Ohio, 367 U.S.
643, 654-56 (1961). Evidence that has been obtained, whether directly or indirectly, by
exploitation of an illegal search or seizure is ordinarily inadmissible in the prosecution’s
case in chief against a criminal defendant.
[T]he exclusionary rule reaches not only primary evidence obtained as a
direct result of an illegal search or seizure, . . . but also evidence later
discovered and found to be derivative of an illegality or “fruit of the
poisonous tree.”
Segura v. United States, 468 U.S. 796, 804 (1984);
See also Wong Sun v. United States, 371 U.S. 471, 484 (1963) (“The exclusionary
prohibition extends as well to the indirect as the direct products of such [illegal]
invasions.”).
But the Fourth Amendment does not require that the exclusionary rule be applied unless
the “remedial objectives” for having the rule is “efficaciously served.” The primary
“remedial objective” is deter future unlawful police conduct. See United States v.
Calandra, 414 U.S. 338, 348 (1974). Any remedial objectives, though, must be weighed
against the “substantial social costs” and “harm to the justice system” exacted by the
exclusion:
Here, a multiple DUI offender, who was driving under the influence on
Christmas Eve, would not be required to answer for his actions because of
Langston’s error. The counter-effect would be that innocent citizens of this
State, who look to the government for protection from drunk drivers,
would be subjected to the potentially fatal risk of a recalcitrant,
multiple-DUI offender being placed back on their roadways. This risk
only adds to the undeniable substantial social costs exacted by drunk
drivers through not only fatalities, but also through grief to the survivors;
personal injuries ranging from catastrophic to minor; and property loss. . . .
The “substantial social costs” and “harm to the justice system” resulting
from giving the keys to the jail to a serial drunk driver, under the facts and
circumstances presented here, far outweigh any imagined deterrent effect.
Delker v. State, 50 So. 3d 300, 305-06 (Miss. 2010).
Ordinarily the exclusionary rules do not apply to:
• Civil proceedings. See United States v. Janis, 428 U.S. 433 (1976).
• Grand juries proceedings. See United States v. Calandra, 414 U.S. 338 (1974).
• Federal habeas corpus reviews. See Stone v. Powell, 428 U.S. 465 (1976).
• Impeachment of the defendant’s own testimony. See James v. Illinois, 493 U.S.
307 (1990).
Attenuation of the taint doctrine:
The exclusionary rule does not apply if the connection between the unlawful police
conduct and the discovery of the evidence sought to be admitted has become so
attenuated as to dissipate the taint of the Fourth Amendment violation. See Wong Sun v.
United States, 371 U.S. 471, 484 (1963).
Independent-source doctrine:
The exclusionary rule does not apply if the evidence has been discovered wholly
independent of the unlawful police conduct:
Whether the initial entry was illegal or not is irrelevant to the admissibility
of the challenged evidence because there was an independent source for
the warrant under which that evidence was seized.
Segura v. United States, 468 U.S. 796, 813-14 (1984).
See also Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) (“[The Fourth
Amendment prohibition against unlawful searches and seizures] does not mean that the
facts obtained [in an unlawful manner] become sacred and inaccessible. If knowledge of
them is gained from an independent source they may be proved like any others, . . . .”).
The “independent source” doctrine applies not only to evidence obtained for the first time
during an independent lawful search, but also to evidence initially discovered during, or
as a consequence of, an unlawful search, but later obtained independently from activities
untainted by the initial illegality. See Murray v. United States, 487 U.S. 533, 537-38
(1988).
Inevitable discovery doctrine:
The exclusionary rule does not apply if the government can prove that the evidence would
have been obtained inevitably regardless of the unlawful police conduct. See Nix v.
Williams, 467 U.S. 431, 447 (1984) (“The independent source doctrine teaches us that the
interest of society in deterring unlawful police conduct and the public interest in having
juries receive all probative evidence of a crime are properly balanced by putting the police
in the same, not a worse, position that they would have been in if no police error or
misconduct had occurred. . . . [I]ts rationale is wholly consistent with and justifies our
adoption of the ultimate or inevitable discovery exception to the exclusionary rule.”);
United States v. Crews, 445 U.S. 463, 474 (1980) (“[T]he illegality of his detention
cannot deprive the Government of the opportunity to prove his guilt through the
introduction of evidence wholly untainted by the police misconduct.”).
Leon good faith exception:
The exclusionary rule does not apply if evidence is obtained by officers acting in
reasonable reliance on a search warrant issued by a detached and neutral magistrate but
ultimately found to be unsupported by probable cause. See Eaddy v. State, 63 So. 3d
1209, 1215 (Miss. 2011) (“Under the White/Leon good-faith exception, the relevant
inquiry turns to whether the officers reasonably relied in good faith on an invalid search
warrant.”).
Suppression of the evidence is appropriate only if:
• the magistrate was not detached and neutral;
• the officers were dishonest or reckless in preparing their affidavit; or
• the officers could not have harbored an objectively reasonable belief in the
existence of probable cause.
See United States v. Leon, 468 U.S. 897, 926 (1984).
See also Davis v. United States, 131 S.Ct. 2419, 2429 (2011) (“Indeed, in 27 years of
practice under Leon 's good-faith exception, we have ‘never applied’ the exclusionary rule
to suppress evidence obtained as a result of nonculpable, innocent police conduct.”);
White v. State, 842 So. 2d 565, 568 (Miss. 2003) (“[W]e adopt the Leon good faith
exception to warrantless searches . . . .”); Magee v. State, 73 So. 3d 1183, 1190 (Miss. Ct.
App. 2011) (“We find it clear from his affidavit that Officer Heath sought a warrant to
collect Magee’s DNA. And he believed the warrant authorized him to do so. Thus, we
find Officer Heath acted reasonably.”).
But, the Leon good faith exception does not apply if the warrant is so facially deficient
that the officer cannot presume it to be valid:
“A warrant with a blank section cannot even rise to the level of “failing to
particularize” a place. It is clearly, facially defective, and the whole
premise of the good faith exception would be negated if we were to find
the exception applies. Thus, we hold that the good faith exception does not
apply, and the instant issue is, therefore, moot.”
State ex rel. Mississippi Bureau of Narcotics v. Canada, 164 So. 3d 1003, 1009
(Miss. 2015).
517 A SUMMARY OF SEARCH AND SEIZURE ISSUES
• Did the police conduct constitute a search or seizure? A consensual encounter is not.
• If the police conduct did constitute a search or seizure– Was there a warrant? The
exclusionary rule ordinarily does not apply if, in accordance with United States v. Leon,
the evidence is obtained by officers acting in reasonable reliance on a search warrant
issued by a neutral and detached magistrate but ultimately found to be unsupported by
probable cause.
• If a warrant was issued– Was it defective?
Was it issued by one authorized to do so?
Was it supported by probable cause? But see above. Was a confidential informant used?
Did affiant knowingly make a false statement?
Was it supported by oath or affirmation?
Did warrant designate with reasonable certainty the place to be searched and the persons
or things to be seized?
Was the warrant “functus officio”?
Was it returnable to a blank or past date?
Was it signed and dated?
• If a warrant was issued– Was it properly executed?
Did the officers exceed the scope authorized by the warrant?
Did the officers act in reasonable reliance as to the warrant’s validity or contents?
• If a warrant was issued– Does Section 41-29-157 (administrative inspection warrant
under the Uniform Controlled Substance Law) or Section 99-27-15 (sale or possession of
intoxicating beverages) apply?
• If a warrant was not issued– Is there a recognized exception to the warrant requirement?
• If there is not a recognized exception to the warrant requirement– Is there a sound
argument that when applied to the “totality of the circumstances” of the case would make
the search “reasonable” under the Fourth Amendment to the U.S. Constitution and
Section 23 of the Mississippi Constitution?
• If the search or seizure is unlawful, i.e., not “reasonable”– Is there an exception to the
exclusionary rule that will still allow it into evidence?
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CHAPTER 6
CONFESSIONS
600 FIFTH AMENDMENT CONSIDERATIONS
Governing laws
Challenge heard outside the jury
Custodial interrogation
Whether adequate warnings of Miranda rights were given
Whether there was a valid waiver of Miranda rights
Totality of the circumstances
Knowing and intelligent waiver
Voluntary waiver
“You have the right to remain silent . . .”
“You have the right to an attorney . . .”
Evidentiary concerns
601 SIXTH AMENDMENT CONSIDERATIONS
Governing laws
Waiving the right to counsel
Questioning as to unrelated, uncharged offenses
Evidentiary concerns
When the right to counsel attaches
602 FOURTH AMENDMENT CONSIDERATIONS
Governing laws
Fruit of the poisonous tree
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600 FIFTH AMENDMENT CONSIDERATIONS
Governing laws:
Fifth Amendment:
[N]or shall any person be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due
process of law;
Fourteenth Amendment:
[N]or shall any state deprive any person of life, liberty, or property,
without due process of law;
See also Miss. Const. art. III, § 14 (“No person shall be deprived of life, liberty, or
property except by due process of law.”); Miss. Const. art. III, § 26 (“In all criminal
prosecutions . . . [the accused] shall not be compelled to give evidence against himself;”).
Challenge heard outside the jury:
The defendant is entitled to challenge, in the absence of a jury, the admissibility of a
confession. See Thorson v. State, 653 So. 2d 876, 888 (Miss. 1995). At the hearing, the
trial judge must determine if:
• there was a custodial interrogation;
• adequate Miranda warnings were given; and
• from the totality of the circumstances there was a “knowing and intelligent” and
voluntary waiver of the rights within those warnings.
See McCarty v. State, 554 So. 2d 909, 911 (Miss. 1989).
The trial judge’s ruling is not subject to reversal on appeal unless it is “manifestly in
error” or “contrary to the overwhelming weight of the evidence.” See Applewhite v. State,
753 So. 2d 1039, 1041 (Miss. 2000). However, if the trial judge fails to make specific
findings in determining the admissibility of a confession, the scope of appellate review
may broaden. This is particularly true if the precise points at issue on appeal cannot be
clearly inferred from the testimony given. See Gavin v. State, 473 So. 2d 952, 955 (Miss.
1985); Forrest v. State, 782 So. 2d 1260, 1264 (Miss. Ct. App. 2001).
Custodial interrogation:
“Custodial interrogation” is questioning initiated by law enforcement officers of a person
in custody. Such questioning triggers the need for Miranda warnings. “In custody”
means that from the totality of the circumstances a reasonable person would feel arrested
as opposed to being temporarily detained. See California v. Beheler, 463 U.S. 1121, 1125
(1983); Oregon v. Mathiason, 429 U.S. 492, 494 (1977).
Important, but not per se dispositive, factors include:
C the place of interrogation;
C the time of interrogation;
C the people present;
C the amount of force or physical restraint used by the officers;
C the length and form of the questions;
C whether the defendant comes to the authorities voluntarily; and
C what the defendant is told about the situation.
See Hunt v. State, 687 So. 2d 1154, 1160 (Miss. 1997).
Miranda warnings or “their equivalent” are NOT required for:
• a volunteered statement, i.e., a voluntary statement that is not in response to
custodial interrogation or any police action designed to elicit an incriminating
response. See Wilson v. State, 936 So. 2d 357, 360-62 (Miss. 2006); Wright v.
State, 730 So. 2d 1106, 1108 (Miss. 1998).
• general on-the-scene investigative questioning. See Tolbert v. State, 511 So. 2d
1368, 1375 (Miss. 1987).
• routine booking questions that are non-interrogative. See Alexander v. State, 736
So. 2d 1058, 1063 (Miss. Ct. App. 1999).
• roadside questioning of motorist detained for routine traffic stop. See Levine v.
City of Louisville, 924 So. 2d 643, 644 (Miss. Ct. App. 2006).
Does taking vehicle keys from a driver transform a routine traffic into a custodial
interrogation? The Mississippi Court of Appeals held that it did not:
“During a Terry stop, officers are ‘authorized to take such steps as are reasonably
necessary to protect their personal safety and to maintain the status quo ....’ ”
Wrenn v. State, 281 So. 3d 838, 843 (Miss. Ct. App. 2018) (quoting United States
v. Hensley, 469 U.S. 221 (1985)). Parker suspected that Johnson was intoxicated,
and taking Johnson's keys was a reasonable means of protecting the officers’
safety during the course of the stop. This reasonable safety precaution did not
transform the routine traffic stop into a custodial interrogation.
Johnson v. State, 2021 WL 1184663 (Miss. Ct. App. 2021).
See also Salinas v. Texas, 133 S.Ct. 2174, 2180 (2013) (“[Where the defendant had not
expressly invoked the privilege against self-incrimination,] the prosecution’s use of his
noncustodial silence did not violate the Fifth Amendment.”); Posey v. State, 822 So. 2d
315, 319 (Miss. Ct. App. 2002) (holding that the defendant’s voluntary and unsolicited
remark to officer while en route from hospital to station was admissible).
Whether adequate warnings of Miranda rights were given:
An accused subject to custodial interrogation must be given Miranda warnings or “their
equivalent” for the confession to be deemed “knowingly and intelligently” given:
[W]hen an individual is taken into custody or otherwise deprived of his
freedom by the authorities in any significant way and is subjected to
questioning, ... [h]e must be warned prior to any questioning that he has
the right to remain silent, that anything he says can be used against him in
a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise these rights must be
afforded to him throughout the interrogation. After such warnings have
been given, and such opportunity afforded him, the individual may
knowingly and intelligently waive these rights and agree to answer
questions or make a statement. But unless and until such warnings and
waiver are demonstrated by the prosecution at trial, no evidence obtained
as a result of interrogation can be used against him.
Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
See also Rhode Island v. Innis, 446 U.S. 291, 300 (1980) (“[T]he special procedural
safeguards outlined in Miranda are required not where a suspect is simply taken into
custody, but rather where a suspect in custody is subjected to interrogation.”).
A verbatim recital of the familiar words from the Miranda opinion is not required. See
California v. Prysock, 453 U.S. 355, 359 (1981) (“[N]o talismanic incantation [is]
required to satisfy [Miranda] strictures”). The inquiry is simply whether the warnings
given reasonably conveyed those rights. See Duckworth v. Eagan, 492 U.S. 195, 203
(1989). Oral Miranda warnings are sufficient if the requisite standards are otherwise met.
See Dees v. State, 758 So. 2d 492, 495 (Miss. Ct. App. 2000).
Also, there are notable exceptions:
C “[A] suspect who has responded to unwarned yet uncoercive questioning is not
thereby disabled from waiving his rights and confessing after he has been given
the requisite Miranda warnings.” Oregon v. Elstad, 470 U.S. 298, 318 (1985).
C Miranda does not require that a defendant be re-advised of his rights every time
there is a brief pause in questioning. See Taylor v. State, 789 So. 2d 787, 794
(Miss. 2001).
C the public safety exception. See New York v. Quarles, 467 U.S. 649, 655-66
(1984)).
Whether there was a valid waiver of Miranda rights:
The mere giving of the Miranda warnings or “their equivalent,” no matter how
meticulously repeated, does not render a confession admissible. The State must also
prove from the totality of the circumstances that the defendant made a ‘knowing and
intelligent’ and voluntary waiver of the rights within those warnings. See Jones v. State,
461 So. 2d 686, 696 (Miss 1984). That is, the State must show that the waiver was made
with a full awareness of both:
• the nature of the right being abandoned and the consequences of the decision to
abandon it. (“knowing and intelligent”), and
• the product of a free and rational choice rather than intimidation, coercion, or
deception. (“voluntary”).
See Moran v. Burbine, 475 U.S. 412, 421 (1985); Herring v. State, 691 So. 2d 948, 956
(Miss. 1997).
Reading Miranda warnings from a standard card may not suffice:
This heightened duty [to explain and determine whether defendant with
known severe mental problems understood his Miranda rights] could not
be filled by merely reading the standard card and ending with the standard
question, “Do you understand these rights?”
Evans v. State, 844 So. 2d 470, 477 (Miss. 2002).
Although the preferred practice, a Miranda waiver does not have to be in writing to be
effective.
An express written or oral statement of waiver of the right to remain silent
or of the right to counsel is usually strong proof of the validity of that
waiver, but is not inevitably either necessary or sufficient to establish
waiver. The question is not one of form, but rather whether the defendant
in fact knowingly and voluntarily waived the rights delineated in the
Miranda case.
North Carolina v. Butler, 441 U.S. 369, 373 (1979).
See also Berghuis v. Thompkins, 560 U.S. 370, 384 (2010) (“The prosecution . . . does
not need to show that a waiver of Miranda rights was express. An ‘implicit waiver’ of the
‘right to remain silent’ is sufficient to admit a suspect's statement into evidence.”);
Garcia v. State, 828 So. 2d 1279, 1285 (Miss. Ct. App. 2002) (“The fact that Garcia did
not waive his rights in writing is of little consequence since the lack of a written waiver
does not invalidate the waiver.”).
Totality of the circumstances:
The totality of the circumstances surrounding the interrogation is decisive in determining
whether there has been a ‘knowingly, intelligently and voluntarily’ given waiver. See
Chim v. State, 972 So. 2d 601, 603 (Miss. 2008); Gavin v. State, 473 So. 2d 952, 954
(Miss. 1985). Important, but not per se dispositive, factors are age, intelligence, degree of
intoxication, and sickness. See Johnson v. State, 511 So. 2d 1360, 1365 (Miss. 1987).
But, in any event, if the accused invokes the right to remain silent or the right to the
presence of an attorney the interrogation must immediately cease. See Reuben v. State,
517 So. 2d 1383, 1388-89 (Miss. 1987).
• Age:
The totality of the circumstances test is used to determine whether a child’s confession is
admissible:
The totality approach permits-indeed, it mandates-inquiry into all the
circumstances surrounding the interrogation. This includes evaluation of
the juvenile's age, experience, education, background, and intelligence,
and into whether he has the capacity to understand the warnings given
him, the nature of his Fifth Amendment rights, and the consequences of
waiving those rights.
Fare v. Michael C., 442 U.S. 707, 725 (1979).
The child’s age is to be considered in the Miranda custody analysis:
[W]e hold that so long as the child's age was known to the officer at the
time of police questioning, or would have been objectively apparent to a
reasonable officer, its inclusion in the custody analysis is consistent with
the objective nature of that test. This is not to say that a child's age will be
a determinative, or even a significant, factor in every case. . . . It is,
however, a reality that courts cannot simply ignore.
J.D.B. v. North Carolina, 131 S.Ct. 2394, 2406 (2011).
See also Martin v. State, 854 So. 2d 1004, 1006-07 (Miss. 2003); Dancer v. State, 721 So.
2d 583, 587-89 (Miss. 1998).
• Intelligence:
The totality of the circumstances test is used to determine whether the defendant’s low
intelligence renders the confession inadmissible. See Blue v. State, 674 So. 2d 1184,
1203-05 (Miss. 1996); Odom v. State, 769 So. 2d 189, 196 (Miss. Ct. App. 2000);
Johnson v. State, 760 So. 2d 33, 37-38 (Miss. Ct. App. 2000). The trial judge’s decision
will not be reversed on appeal unless it is clearly erroneous. Neal v. State, 451 So. 2d
743, 756 (Miss. 1984).
A reversal is a difficult climb:
During the suppression hearing, Dr. Janet St. Lawrence was accepted as an
expert in psychology and testified for the defense. Dr. St. Lawrence, who
had performed many psychological tests on Smith, stated that Smith had a
verbal I.Q. of 65, which placed him in the first percentile of the general
population. In her opinion Smith was borderline or mildly mentally
retarded. She stated that Smith could not read; would not recognize the
word “waiver”; generally could not understand multi-syllabic words; and,
if a speaker used compound or complex sentences, Smith would not be
able to understand the meaning of the sentence. St. Lawrence also testified
that Smith had “the minimal skills necessary for daily functioning, but he
is a functioning illiterate.” When asked about his capacity for
understanding his Miranda rights, “understanding and comprehension, his
intellectual functioning and my professional opinion, he was incapable of
understanding what it was that he was signing or what that meant.”
. . .
[But the trial] court was persuaded by a review of the questions and
responses in the taped confession that Smith was capable of voluntarily
confessing and found that the psychological evidence did not outweigh
this conclusion.
. . .
On the facts in this case, we cannot say that the trial court's finding of fact
was clearly erroneous.
Smith v. State, 534 So. 2d 194, 196-97 (Miss. 1988).
See also Richardson v. State, 722 So. 2d 481, 488 (Miss. 1998) (“There was simply no
evidence presented to the trial court beyond the uncorroborated numbers in Dr. Hearne's
report about Richardson's I.Q. which suggested that he could not give a valid waiver of
his Miranda rights and subsequently give an intelligent, knowing and voluntary
confession.”); Harvey v. State, 207 So. 2d 108, 117 (Miss. 1968) (“[E]xpert testimony
shows that the defendant functioned at a level of an eight to twelve-year-old boy, but that
when he became upset his ability to function decreased. . . . [We conclude] that the
alleged confession of the defendant should not have been admitted into evidence before
the jury.”).
• Degree of intoxication:
The totality of the circumstances test is used to determine whether the defendant’s
intoxication renders the confession inadmissible. The degree of intoxication is a decisive
factor in making this determination. See Baggett v. State, 793 So. 2d 630, 634 (Miss.
2001) (“The evidence before the trial court concerning the degree of [the defendant’s]
intoxication does not indicate such a degree of intoxication as to render the confession
and waiver involuntary.”); O’Halloran v. State, 731 So. 2d 565, 571 (Miss. 1999)
(“Applying law to the facts at hand, there is no reversible error. Indeed, the testimony of
the law enforcement officers demonstrates that O'Halloran was not impaired by
intoxicants.”). Such is true irrespective of the particular intoxicant. See, e.g.,
Holloway v. State, 809 So. 2d 598, 605 (Miss. 2000) (librium);
Stevens v. State, 458 So. 2d 726, 729 (Miss. 1984) (alcohol);
Thomas v. State, 936 So. 2d 964, 966 (Miss. Ct. App. 2006) (crack and Lorcet);
Morris v. State, 798 So. 2d 603, 606 (Miss. Ct. App. 2001) (cocaine);
Marshall v. State, 812 So. 2d 1068, 1073-75 (Miss. Ct. App. 2001) (mellaril).
The confession of a defendant in a state of acute intoxication equivalent to mania has
been held inadmissible. See State v. Williams, 208 So. 2d 172, 175 (Miss. 1968). On the
other hand, the confession of a defendant who had been drinking heavily but in control of
his faculties has been held admissible. See Kemp v. State, 352 So. 2d 446, 448 (Miss.
1977). The confession of a defendant too intoxicated to drive, but not so intoxicated as to
be unable to understand his Miranda rights has been held admissible. See Taylor v. State,
94 So. 3d 298, 308 (Miss. Ct. App. 2011); Bolden v. State, 767 So. 2d 315, 318 (Miss.
Ct. App. 2000).
• Sickness:
The totality of the circumstances test is used to determine whether the defendant’s
sickness renders the confession inadmissible. See Coulter v. State, 506 So. 2d 282, 285-
86 (Miss. 1987); Kircher v. State, 753 So. 2d 1017, 1023-30 (Miss. 1999).
Knowing and intelligent waiver:
For Miranda rights to be “knowingly and intelligently” waived there must be a full
awareness of the nature of the rights being abandoned and the consequences of the
decision to abandon those rights. See McGowan v. State, 706 So. 2d 231, 236 (Miss.
1997); Coverson v. State, 617 So. 2d 642, 647 (Miss. 1993). A recital of the Miranda
warnings or “their equivalent” does not necessarily guarantee that a subsequent waiver is
‘knowingly and intelligently’ made. Instead, the court must determine whether the words
used by the officer, in view of the defendant’s age, intelligence, and demeanor were
sufficient to convey a clear understanding of the Miranda rights and the consequences in
waiving them. See Jenkins v. State, 214 So. 2d 470, 472 (Miss. 1968).
Voluntary waiver:
• When a suppression hearing is required:
If the defendant challenges a confession on the basis of coercion or other improper
inducement, the court must conduct a suppression hearing, in the absence of the jury, to
determine whether such confession was involuntarily given. See Hogan v. State, 730 So.
2d 94, 98 (Miss. 1998). At the suppression hearing, the State bears the burden of proving
all facts prerequisite to admissibility beyond a reasonable doubt. See Gavin v. State, 473
So. 2d 952, 954 (Miss. 1995). This burden is met and a prima facia case made out by the
testimony of an officer, or other person having knowledge of the facts, that the confession
was voluntarily made without any threats, coercion, or offers of reward. See Miller v.
State, 740 So. 2d 858, 867 (Miss. 1999). The burden then shifts to the defendant to offer
rebuttal testimony:
After the State has made out its prima facie case, the defendant must rebut
the State's evidence by offering testimony that violence, threats of
violence, or offers of reward induced the confession.
Kircher v. State, 753 So. 2d 1017, 1024 (Miss. 1999).
If the rebuttal is successful, then the State must either offer the testimony of those officers
who are claimed to have induced the confession through some means of coercion or
improper inducement or otherwise show cause for not being able to offer such testimony.
See Abram v. State, 606 So. 2d 1015, 1030 (Miss. 1992); Powell v. State, 928 So. 2d 974,
978-79 (Miss. Ct. App. 2006). Once all the testimony is presented, the trial court
determines from the totality of the circumstances whether the confession was voluntarily
made, i.e., a product of the defendant’s free and rational choice. See Herring v. State, 691
So. 2d 948, 956 (Miss. 1997); Frost v. State, 483 So. 2d 1345, 1350 (Miss. 1986). In
making this determination, the trial court must resist any inclination to consider the
truthfulness or authenticity of the confession, but instead limit its focus only to the issue
of voluntariness. See Armstead v. State, 978 So. 2d 642, 648 (Miss. 2008) (“Threats to
arrest a defendant’s family member(s) do not render a confession involuntary so long as
probable cause exists to arrest such persons.”); Sistrunk v. State, 773 So. 2d 419, 420-21
(Miss. Ct. App. 2000) (“[N]o testimony from [defendant] or anyone else that [officer]
withheld [defendant’s] medication until he confessed to crime.”). The trial judge’s
decision will not be reversed on appeal unless it is manifestly in error or contrary to the
overwhelming weight of the evidence. See McCarty v. State, 554 So. 2d 909, 912 (Miss.
1989).
• Alleging an improper inducement:
If an improper inducement is alleged, the trial court must determine from the specific
circumstances of the confession whether the officer’s statement was an implied promise
and not merely an exhortation to tell the truth and, if an implied promise, whether it was
the proximate cause of the confession. See Willie v. State, 585 So. 2d 660, 668 (Miss.
1991); Layne v. State, 542 So. 2d 237, 241 (Miss. 1989); Holland v. State, 956 So. 2d
322, 329 (Miss. Ct. App. 2007). In other words,
[Was the inducement] of a nature calculated under the circumstances to
induce a confession irrespective of its truth or falsity[?]
Taylor v. State, 789 So. 2d 787, 795 (Miss. 2001).
See also Willie v. State, 585 So. 2d 660, 669 (Miss. 1991) (“Willie has shown no
evidence that the sheriffs’ statements [“it was always best to tell the truth” and “it would
be better for him to tell the truth”] induced him to confess.”); Singleton v. State, 151 So.
3d 1046, 1053-54 (Miss. Ct. App. 2014) (“In this instance, Investigator Ellis told
Singleton that it was ‘time to come to Jesus’ [as an inducement] to tell the truth in light of
the incriminating evidence. . . . While Singleton stated he found the remark offensive,
Investigator Ellis testified he did not use any threatening or intimidating language or tone
that would constitute coercion. This inducement to tell the truth without more does not
rise to the level of coercion. Thus, the religious reference did not render Singleton’s
statement involuntary.”); Harper v. State, 722 So. 2d 1267, 1273 (Miss. Ct. App. 1998)
(“[T]he record is clear that the [agent] gave [the defendant] the impression that his
cooperation with law enforcement authorities would be beneficial to him in violation of
the strict guidelines of our supreme court . . . that law enforcement officers should refrain
from giving such an impression, ‘however slight.’”).
• Conduct by third parties:
Conduct by third parties not connected with the law enforcement officers in the
investigation will not vitiate a confession which might be rendered incompetent or
inadmissible if such conduct had been committed by a law enforcement officer. See
Genry v. State, 735 So. 2d 186, 196 (Miss. 1999); Wilson v. State, 759 So. 2d 1258, 1261
(Miss. Ct. App. 2000).
Was the third party acting on behalf of law enforcement to get a confession?
[The defendant’s girlfriend] was not acting on behalf of law enforcement.
Rather, [the defendant] requested her presence . . . . Moreover, there is no
indication that [she] induced [him] to confess . . . . [T]here is nothing in the
record which compels the conclusion that [she] induced [him] to confess.
Evans v. State, 725 So. 2d 613, 637-38 (Miss. 1998).
“You have the right to remain silent . . .”:
Miranda requires officers subjecting a person to “custodial interrogation” to warn that
person of the “right to remain silent. . . .”
If at any time the accused clearly indicates a desire to remain silent (i.e., makes some
indication that can reasonably be construed to be an expression of a desire to remain
silent), the interrogation must immediately cease, and thereafter the invoked right must be
“scrupulously honored.” See Michigan v. Mosely, 423 U.S. 96, 103 (1975); Neal v. State,
451 So. 2d 743, 754 (Miss. 1984).
But the assertion of the right needs to be clearly made:
A suspect must articulate his desire to cut off questioning with sufficient
clarity that a reasonable police officer in the circumstances would
understand the statement to be an assertion of the right to remain silent. If
the statement is ambiguous or equivocal, then the police have no duty to
clarify the suspect's intent, and they may proceed with the interrogation.
Coleman v. Singletary, 30 F.3d 1420, 1424 (11
th
Cir. 1994).
Also, Miranda does not require that a defendant be explicitly informed of the right to stop
answering questions. See Brown v. State, 130 So. 3d 1074, 1079 (Miss. 2013).
Unsolicited voluntary statements made after invoking right to remain silent are
admissible. See Blue v. State, 827 So. 2d 721, 724-25 (Miss. Ct. App. 2002).
Interrogation should not resume unless there is: a “cooling off” period; a reasonable basis
for inferring the accused has voluntarily changed his mind; and a re-advising and waiver
of Miranda rights. See Jones v. State, 461 So. 2d 686, 700 (Miss 1984). A refusal to sign
a waiver of rights is not a per se invocation of the right to remain silent. See Mohr v.
State, 584 So. 2d 426, 429 (Miss. 1991).
“You have the right to an attorney . . .”:
Miranda requires officers subjecting a person to “custodial interrogation” to warn that
person of the “right to the presence of an attorney, [retained or appointed] . . . prior to any
questioning.”
See also Johnson v. State, 129 So. 3d 148, 152 (Miss. 2013) (“The question concerning
the Miranda warning is not complicated. Johnson was informed that he had “the right to
have an attorney present during interrogation,” but he was not specifically informed that
he had the right to consult with counsel. The trial judge found that informing a defendant
of his right to have an attorney present during questioning carries with it the
understanding that he may consult with that attorney. We agree.”).
• When accused clearly requests an attorney:
If at any time the accused clearly requests an attorney (i.e., makes “some statement that
can reasonably be construed to be an expression of a desire for the assistance of an
attorney”), the interrogation must immediately cease and officers may not reinitiate
interrogation without an attorney present, whether or not the accused has consulted with
the attorney. See Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Downey v. State, 144
So. 3d 146, 152 (Miss. 2014); Holifield v. State, 275 So. 2d 851, 855 (Miss. 1973).
But any request for counsel must not be ambiguous or equivocal:
[The suspect] must articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney. If the statement
fails to meet the requisite level of clarity, [Edwards v. Arizona, 451 U.S.
477 (1981)] does not require that the officers stop questioning the suspect.
Davis v. United States, 512 U.S. 452, 459 (1994).
See also Barnes v. State, 30 So. 3d 313, 318 (Miss. 2010) (“[The defendant’s] statement,
‘So, I don’t need legal, okay . . . .’ [was] not an assertion of her right to counsel, but
rather an attempt to clarify whether she must have an attorney present.”).
A request for someone other than attorney, e.g., probation officer, clergyman, or close
friend, is not a request for counsel and therefore does not invoke the right to presence of
an attorney. See Fare v. Michael C., 442 U.S. 707, 722 (1979). Once a defendant has
invoked the right to the presence of an attorney any further questioning is permissible
only if the accused initiates discussions with the police and makes a knowing, intelligent,
and voluntary waiver of the invoked right:
Berry was given the opportunity to telephone an attorney before further
questioning. Berry, without any overreaching, pressure, or persuasion by
the police, made the decision not to call. Gore's question clarified this
waiver, after which Berry was asked only one question, about the pond.
Berry was then again advised of his Miranda rights and made the
confession.
. . .
Clearly, the officers in this case honored Berry's request for counsel, as
expeditiously as possible. Immediately after Berry finished his meal, he
was provided a telephone with which to contact an attorney. Berry chose
not to do so, then clearly indicated that he was willing to continue the
interrogation without aid of counsel.
Berry v. State, 575 So. 2d 1, 7 (Miss. 1990).
See also Smith v. Illinois, 469 U.S. 91, 98-99 (1984); Edwards v. Arizona, 451 U.S. 477,
484-85 (1980). Unsolicited voluntary statements made after invoking right to an attorney
are admissible. See Randolph v. State, 852 So. 2d 547, 556-57 (Miss. 2002). Another
exception is where there is a break in Miranda custody lasting more than two weeks
between the first and second attempts at interrogation. See Maryland v. Shatzer, 559 U.S.
98, 117 (2010).
• Did the accused initiate further discussions with police?
The trial court must determine if the accused made an inquiry or statement that could
have reasonably been interpreted by the officer as evincing a willingness and desire for a
generalized discussion relating directly or indirectly to the investigation as opposed to
inquiries relating to routine incidents of the custodial relationship. See Oregon v.
Bradshaw, 462 U.S. 1039, 1045-46 (1983) (“‘Well, what is going to happen to me now?’
evinced willingness and desire for further discussions with police”); Haynes v. State, 934
So. 2d 983, 987 (Miss. 2006). (“Haynes did not say he wanted to talk about his case, but
instead asked Officer Pope several questions about his bond, scheduling, and a
preliminary hearing.”).
The credibility of the witnesses is a factor to consider:
The trial judge heard conflicting accounts from the officer and Savell as to
whether Savell initiated the confession, and found the officer’s testimony
to be more credible.
Savell v. State, 928 So. 2d 961, 974 (Miss. Ct. App. 2006).
Evidentiary concerns:
• Oregon v. Elstad:
The extent to which an unlawfully obtained confession or incriminating statement must
be suppressed depends upon whether the confession was the result of a technical violation
of Miranda or the result of a violation of the Due Process Clause:
It is an unwarranted extension of Miranda to hold that a simple failure to
administer the warnings, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect's ability to exercise his
free will, so taints the investigatory process that a subsequent voluntary
and informed waiver is ineffective for some indeterminate period. Though
Miranda requires that the unwarned admission must be suppressed, the
admissibility of any subsequent statement should turn in these
circumstances solely on whether it is knowingly and voluntarily made.
Oregon v. Elstad, 470 U.S. 298, 309 (1985).
• Technical violations of Miranda
The Miranda rule is a prophylactic employed to protect against violations of the Fifth
Amendment’s Self-Incrimination Clause:
Introduction of the nontestimonial fruit of a voluntary statement . . . does
not implicate the Self-Incrimination Clause.
United States v. Patane, 542 U.S. 630, 643 (2004).
If there is a technical violation of the procedural safeguards imposed by Miranda, e.g., the
police fail to provide adequate Miranda warnings or their equivalent to a person being
subjected to custodial interrogation, and subsequently, the accused makes a confession
that is freely and voluntarily given, i.e., the product of a free and deliberate choice rather
than intimidation, coercion, or deception, the State may not use that statement in its case
in chief, but may use it for impeachment purposes if the accused takes the stand and
testifies to the contrary. In other words,
The shield provided by Miranda cannot be perverted into a license to use
perjury by way of a defense, free from the risk of confrontation with prior
inconsistent utterances.
Harris v. New York, 401 U.S. 222, 224-26 (1971).
If the State uses a contradictory statement to impeach the defendant’s false or inconsistent
testimony, the defendant, upon request, is entitled to “an instruction that contradictory
statements may not be used as proof of guilt but may be considered only in passing on
[the] credibility [of the] witness.” See Murphy v. State, 336 So. 2d 213, 216-17 (Miss.
1976).
• Involuntary confessions:
If the confession is involuntary (i.e., a result of intimidation, coercion, or deception), the
State may not use that statement in its case-in-chief or to impeach the defendant’s false or
inconsistent testimony. See James v. Illinois, 493 U.S. 307, 311-13 (1990); Bowen v.
State, 607 So. 2d 1159, 1162 (Miss. 1992). “The Fifth Amendment guarantees that no
person shall be compelled to give evidence against himself, and is so violated whenever a
truly coerced confession is introduced at trial, whether by way of impeachment or
otherwise.” Kansas v. Ventris, 556 U.S. 586, 590 (2009).
• Post-arrest silence (“Doyle Rule”):
The Due Process Clause prohibits using the defendant’s post-Miranda silence for
impeachment purposes. See Doyle v. Ohio, 426 U.S. 610, 619 (1976); Emery v. State,
869 So. 2d 405, 407-10 (Miss. 2004). If the State does so, and the defense objects, the
Court must sustain the objection and warn the jury to disregard any questions to which
the objection was sustained. Unless the State’s misconduct is “of sufficient significance
to result in the denial of the defendant’s right to a fair trial,” the curative instruction
prevents a mistrial. See Greer v. Miller, 483 U.S. 756, 764-65 (1987).
But the Doyle prohibition does not apply if the defendant voluntarily breaks silence:
Doyle bars the use against a criminal defendant of silence maintained after
receipt of governmental assurances. But [it] does not apply to
cross-examination that merely inquires into prior inconsistent statements.
Such questioning makes no unfair use of silence because a defendant who
voluntarily speaks after receiving Miranda warnings has not been induced
to remain silent.
Anderson v. Charles, 447 U.S. 404, 408 (1980).
See also Fletcher v. Weir, 455 U.S. 603, 607 (1982) (“[W]e do not believe that it violates
due process of law for a State to permit cross-examination as to postarrest silence when a
defendant chooses to take the stand.”); McGrone v. State, 807 So. 2d 1232, 1235 (Miss.
2002) (“This Court applies the rule of Fletcher v. Weir [455 U.S. 603 (1982)] and finds
that Timothy McGrone's due process rights were not violated by the State's
cross-examination concerning his post-arrest silence.”); Puckett v. State, 737 So. 2d 322,
351 (Miss. 1999) (“[T]he prosecutor's questions upon cross-examination are admissible . .
. to show that Puckett's prior statements were inconsistent with his statements at trial.”).
• Written statements of non-recorded confessions:
The State may not introduce a written statement of a non-recorded confession that the
defendant denies having made. Instead, it may only introduce the statement by the
testimony of the officers who took the statement:
To permit the jury, in addition to hearing such testimony from the stand, to
have a written version of the statement in the jury room during its
deliberations improperly permits too much emphasis to be placed on this
evidence.
Cobb v. State, 734 So. 2d 182, 185 (Miss. Ct. App. 1999).
On the other hand, a written statement signed or adopted by the defendant is admissible if
otherwise relevant:
Notwithstanding Randolph's vehement denial that he made the written
confession, we find that his signature on the statement, along with the
testimony of the investigating officers that Randolph signed the statement,
was sufficient to permit its admission into evidence.
Randolph v. State, 924 So. 2d 636, 640 (Miss. Ct. App. 2006).
601 SIXTH AMENDMENT CONSIDERATIONS
Governing laws:
Sixth Amendment:
In all criminal prosecutions, the accused shall . . . have the Assistance of
Counsel for his defence.
Fourteenth Amendment:
[N]or shall any state deprive any person of life, liberty, or property,
without due process of law;
See also Miss. Const. art. III, § 14 (“No person shall be deprived of life, liberty, or
property except by due process of law.”); Miss. Const. art. III, § 26 (“In all criminal
prosecutions the accused have a right to be heard by himself or counsel, or both, . . . .”).
Whereas the Fifth Amendment provides the “right to the presence of an attorney” at
custodial interrogations, the Sixth Amendment provides “the right to counsel” at or after
the initiation of adversary proceedings. See Michigan v. Jackson, 475 U.S. 625, 629-35
(1986); Brewer v. Williams, 430 U.S. 387, 398-99 (1976).
Waiving the right to counsel:
Courts are not required to presume invalid a defendant’s waiver of a right to counsel
whenever police initiate an interrogation following an arraignment or similar proceeding:
[A] defendant who does not want to speak to the police without counsel
present need only say as much when he is first approached and given the
Miranda warnings. . . . If that regime suffices to protect the integrity of “a
suspect's voluntary choice not to speak outside his lawyer's presence”
before his arraignment, it is hard to see why it would not also suffice to
protect that same choice after arraignment, when Sixth Amendment rights
have attached.
Montejo v. Louisiana, 556 U.S. 778, 794-95 (2009).
See also Michigan v. Harvey, 494 U.S. 344, 353 (1990) (“To hold that a defendant is
inherently incapable of relinquishing his right to counsel once it is invoked would be ‘to
imprison a man in his privileges and call it the Constitution.’”); Mettetal v. State, 602 So.
2d 864, 868 (Miss. 1992) (“Nothing in the Sixth Amendment prevents a suspect charged
with a crime and represented by counsel from voluntarily choosing, on his own, to speak
with police in the absence of an attorney.”).
Questioning as to unrelated, uncharged offenses:
Police may question a suspect concerning unrelated, uncharged offenses if Miranda rights
are read and there is a voluntary waiver:
The Sixth Amendment right . . . is offense specific. It cannot be invoked
once for all future prosecutions, for it does not attach until a prosecution is
commenced, that is, “ ‘at or after the initiation of adversary judicial
criminal proceedings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.’ ”
Neal v. State, 57 So. 3d 1271, 1278 (Miss. 2011).
See also McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (“If a suspect does not wish to
communicate with the police [concerning an unrelated, uncharged offense] except
through an attorney, he can simply tell them that when they give him the Miranda
warnings.”).
Evidentiary concerns:
Incriminating statements elicited by a law enforcement officer by deliberately violating
the defendant’s Sixth Amendment right to counsel may not be used in the prosecution’s
case-in-chief. See Massiah v. U.S., 377 U.S. 201, 207 (1964). However, such statements
may be used for impeachment purposes. See Kansas v. Ventris, 556 U.S. 586, 594 (2009)
(“[Police] informant’s testimony, concededly elicited in violation of the Sixth
Amendment, was admissible to challenge [the defendant’s] inconsistent testimony at
trial.”).
When the right to counsel attaches:
The “right to counsel” under Article 3, Section 26 of the Mississippi Constitution is
congruent to that of the Sixth Amendment to the U.S. Constitution, except that it attaches
earlier– that is, when the police move from an investigatory phase to an accusatory phase
rather than at the actual start of adversary proceedings. Thus, if invoked, such right
would attach at the time of the suspect’s arrest. See Grayson v. State, 806 So. 2d 241,
247-48 (Miss. 2001).
But it does not attach at non-critical stages such as scientific analysis of fingerprints,
dental impressions, blood samples, breath samples, hair samples, and clothing samples;
photographic lineups; and non-testimonial voice and handwriting exemplars. See Kirby v.
Illinois, 406 U.S. 682, 689 (1971); Burns v. State, 729 So. 2d 203, 217 (Miss. 1998);
Brewer v. State, 725 So. 2d 106, 130 (Miss. 1998).
602 FOURTH AMENDMENT CONSIDERATIONS
Governing laws:
Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath and affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
Fourteenth Amendment:
[N]or shall any state deprive any person of life, liberty, or property, without due
process of law;
See also Miss. Const. art III, § 14 (“No person shall be deprived of life, liberty, or
property except by due process of law.”); Miss. Const. art. III, Section 23 (“The people
shall be secure in their persons, houses, and possessions, from unreasonable seizure or
search; and no warrant shall be issued without probable cause, supported by oath or
affirmation, specially designating the place to be searched and the person or thing to be
seized.”).
Fruit of the poisonous tree:
The Fourth Amendment protects against unreasonable searches and seizures by requiring
that evidence, including written or verbal statements, acquired by the exploitation of an
illegal search or arrest be suppressed as fruit of the poisonous tree. See Wong Sun v.
United States, 371 U.S. 471, 484-93 (1963). But, the mere fact that a person confesses
while in custody following an illegal arrest does not per se render the confession
inadmissible. See Butler v. State, 296 So. 2d 673, 677 (Miss. 1974). The confession is
not fruit of the poisonous tree if the State can show that the Fifth Amendment standard of
voluntariness was met and in light of the distinct policies and interests of the Fourth
Amendment, significant intervening events cleansed the primary taint of the illegal arrest.
Important, but not per se dispositive, factors include:
C whether Miranda warnings were given and under what circumstances;
C the “temporal proximity” (i.e., closeness in time) between the arrest and
confession.
C the presence of intervening circumstances;
C the purpose and flagrancy of the official misconduct; and
C any other relevant information.
It should be noted too that satisfying the Fifth Amendment is only the “threshold”
condition of the Fourth Amendment analysis:
No intervening events broke the connection between the petitioner’s
illegal detention and his confession. To admit petitioner’s confession in
such a case would allow “law enforcement officers to violate the Fourth
Amendment with impunity, safe in the knowledge that they could wash
their hands in the ‘procedural safeguards’ of the Fifth.”
Dunaway v. New York, 442 U.S. 200, 218-19 (1979).
See also Brown v. Illinois, 422 U.S. 590, 601-04 (1975); Coleman v. State, 592 So. 2d
517, 521-22 (Miss. 1991); Bolton v. State, 530 So. 2d 1360, 1362 (Miss. 1988).
In any event, the State bears burden to show that factors suggesting admissibility
outweigh those suggesting inadmissibility. See Conerly v. State, 760 So. 2d 737, 741
(Miss. 2000); Hall v. State, 427 So. 2d 957, 958-61 (Miss 1983).
CHAPTER 7
RELEASE
700 MISSISSIPPI CONSTITUTION
Excessive bail prohibited
When bail must be revoked
If bail is denied
701 MISSISSIPPI RULES OF CRIMINAL PROCEDURE
Definitions and requirements
Right to pretrial release on personal recognizance or on bond
Specific statutory limits apply
Bond guidelines
Release after conviction and sentencing
Conditions of release
Procedure for determination of release conditions
Review of conditions; revocation of bail
Transfer and disposition of bond
702 STATUTES ON BONDS AND RECOGNIZANCES
Rules prevail over conflicting statutory procedures
Municipal judges as conservators of the peace
When municipal judges may take recognizance or bond
When officer designated by municipal judge may take bond
All bonds to be promptly returned to the court
To whom payable
Bail form; information required from professional or soliciting bail agents; penalties
for noncompliance
Form of bail in open court
Bonds payable to state
Fidelity or surety companies providing bail
Cash bail bond
Insufficient or excessive bail; hearing; orders for reduction or additional bail
Release of defendant
Return of bail bond to clerk
Special bail
Description of offense in bond
Bonds deemed valid and binding
Procedure in felony cases; remand of cases to be tried as misdemeanors
703 FORFEITURE OF BAIL
Purpose of bail
Ordering the forfeiture of bail
Notifying surety of the forfeiture
Setting aside a judgment nisi
Reasonable mitigating circumstances
If forfeiture is made final
Revoking surety’s authority to write bail bonds
Refunding bail amounts
704 SURETY OR ARREST OF PRINCIPAL
Surrender defined
Surrendering the principal
Effect of a timely surrender
Effect of failing to accept surrender
Review of bail upon surrender
Surety may cause arrest of principal by officer
Mittimus in bailable cases to fix the bail
705 DOMESTIC VIOLENCE CONSIDERATIONS
Required appearance
Judge to consider exigencies of the case
Bond conditions to be entered into Uniform Offense Report
Arresting a violator of bond conditions
Section not construed as interfering with judge’s authority
Global positioning system as a condition of bond
706 APPEARANCE BOND AS CONDITION OF PROBATION, COMMUNITY
CONTROL, PAYMENT PLAN, OR OTHER COURT ORDERED SUPERVISION
707 STATUTORY BOND FEES
Bail defined
Fees that may be imposed
Fee if defendant appeals conviction
When fees are not to be imposed
State Auditor regulations pertaining to bail bonds
Clerk to promptly collect fees
Fee for Victims of Domestic Violence Fund
700 MISSISSIPPI CONSTITUTION
Art. 3, § 29 Excessive bail prohibited:
(1) Excessive bail shall not be required, and all persons shall, before conviction, be
bailable by sufficient sureties, except for capital offenses (a) when the proof is evident or
presumption great; or (b) when the person has previously been convicted of a capital
offense or any other offense punishable by imprisonment for a maximum of twenty (20)
years or more.
See also Miss. Code Ann. § 99-5-33 (Bail for attempted murder); Miss. Code Ann. §
99-5-35 (Bail for certain capital offenses); Thompson v. Moss Point, 2015 WL 10322003
(S.D. Miss. 2015) (“No person may, consistent with the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution, be held in custody after an
arrest because the person is too poor to post a monetary bond. If the government generally
offers prompt release from custody after arrest upon posting a bond pursuant to a
schedule, it cannot deny prompt release from custody to a person because the person is
financially incapable of posting such a bond.”); Smith v. Banks, 134 So. 3d 715, 719
(Miss. 2014) (“Because Smith is charged with capital murder, he is not entitled to bail
pending trial if “the proof is evident or the presumption great” concerning his guilt.”);
Brown v. State, 217 So. 2d 521, 523 (Miss. 1969) (“[T]he United States Constitution and
the Mississippi Constitution guarantee that excessive bail bonds shall not be required, and
if excessive bail is required, it is considered tantamount to a denial of bail.”).
Art. 3, § 29 When bail must be revoked:
(2) If a person charged with committing any offense that is punishable by death, life
imprisonment or imprisonment for one (1) year or more in the penitentiary or any other
state correctional facility is granted bail and (a) if that person is indicted for a felony
committed while on bail; or (b) if the court, upon hearing, finds probable cause that the
person has committed a felony while on bail, then the court shall revoke bail and shall
order that the person be detained, without further bail, pending trial of the charge for
which bail was revoked. For the purposes of this subsection (2) only, the term “felony”
means any offense punishable by death, life imprisonment or imprisonment for more than
five (5) years under the laws of the jurisdiction in which the crime is committed. In
addition, grand larceny shall be considered a felony for the purposes of this subsection.
Mississippi Attorney General’s opinions:
Revoking bail under Article 3, Section 29.
“[I]f a person is granted bail by a municipal court on a charge of aggravated assault and
while out on bail a justice court finds probable cause that the person has committed
commercial burglary, the justice court [under Article 3, Section 29(2)] should revoke bail
for the aggravated assault charge and shall order the person detained, without bail, on the
commercial burglary charge, pending trial on the aggravated assault charge.” Op. Atty.
Gen. Turnage, June 26, 2006.
Notice to be sent to the court which granted bail.
“If another court had granted bail for the first offense, then the court which revokes the
bail [under Article 3, Section 29(2)] should send notice to the court which granted bail
that the bail has been revoked and that the defendant should be detained, without further
bail, pending trial for the first offense.” Op. Atty. Gen. Parker, May 4, 2001.
Art. 3, § 29 If bail is denied:
(3) In the case of offenses punishable by imprisonment for a maximum of twenty (20)
years or more or by life imprisonment, a county or circuit court judge may deny bail for
such offenses when the proof is evident or the presumption great upon making a
determination that the release of the person or persons arrested for such offense would
constitute a special danger to any other person or to the community or that no condition or
combination of conditions will reasonably assure the appearance of the person as
required.
(4) In any case where bail is denied before conviction, the judge shall place in the record
his reasons for denying bail. Any person who is charged with an offense punishable by
imprisonment for a maximum of twenty (20) years or more or by life imprisonment and
who is denied bail prior to conviction shall be entitled to an emergency hearing before a
justice of the Mississippi Supreme Court. The provisions of this subsection (4) do not
apply to bail revocation orders.
See Mississippi Commission on Judicial Performance v. Martin, 921 So.2d 1258, 1261
(Miss. 2005) (“[Article 3, Section 29 of the Mississippi Constitution gives] authority to
deny bail only to County and Circuit Judges [in the case of offenses punishable by
imprisonment for a maximum of twenty (20) years or more or by life imprisonment].”).
701 THE MISSISSIPPI RULES OF CRIMINAL PROCEDURE
MRCrP 8.1 Definitions and requirements:
Whenever the terms below appear in these Rules, they shall have the following meanings:
(a) Personal Recognizance. A release on defendant's “personal recognizance” means
release without any condition relating to, or a deposit of, security.
(b) Unsecured Appearance Bond. An “unsecured appearance bond” is an undertaking to
pay a specified sum of money to the clerk of the circuit, county, justice, or municipal
court, for the use of the State of Mississippi or the municipality, on the failure of a person
released to comply with its conditions.
(c) Secured Appearance Bond. A “secured appearance bond” is an appearance bond
secured by deposit with the clerk of security equal to the fall amount thereof.
(d) Cash Deposit Bond. A “cash deposit bond” is an appearance bond secured by deposit
with the clerk of security, in the form of a cash deposit or certified funds, in an amount
set by the judge. The following requirements shall be met for a cash deposit bond:
(1) The accused must never have been convicted in any court of this state, another state or
a federal court, of a crime punishable by more than one (1) year's imprisonment, currently
is not charged with or previously been convicted of 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 circuit court ten percent (10%) of the
amount of the bond as set, in cash, or $250.00 in cash, whichever is greater;
(5) The accused must sign an appearance bond guaranteeing his/her appearance and
binding himself/herself unto the State of Mississippi in the full amount of the bond as set
to be used in the case of default;
(6) The accused, by affidavit duly notarized, must 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 after being duly sworn states:
(a) I have never been convicted in any court of this state, another state, or a federal court
of a crime punishable by more than one (1) year's imprisonment. I am not charged with
escape and I have never been convicted of 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) I have tendered to the clerk of the Circuit Court of __________ County, Mississippi,
ten percent (10%) of the amount of said bond in cash, which sum is not less than $250.00.
Said cash is my property. I authorize the clerk of said court to dispose of the same as
follows: If the bond is forfeited, the cash tendered will be paid by the clerk, less a fee of
not more than $10,00 to be county, and the amount so paid will be credited on the bond
forfeited. If I appear on the return day and a final with the clerk, less a fee of not more
than $10.00 to be retained by the clerk, will be disposed of as ordered by the court.
(e) I agree to report to the clerk of the court by telephone, or in person, and in writing on
the first Monday of each month as to my current address and telephone number. If I fail to
do so. I agree that the bond may be declared in default.
(7) The amount of money tendered under this rule shall not be disbursed to any person
except on written order of the court. The money deposited with the clerk shall be
disbursed in the following manner: first, to pay any court costs assessed against the
defendant; second, to pay any restitution the defendant has been ordered to make; third, to
pay any fines imposed against the defendant; fourth, to pay any assignment of the sum
made by the defendant to defendant's attorney; and fifth, any refund to the defendant or
other disbursements as allowed by the court.
(e) Security. “Security” is cash, certified funds, or a surety's undertaking deposited with
the clerk to secure an appearance bond.
(f) Surety. A “surety” is someone (other than the person seeking release) who executes an
appearance bond and is therefore bound to pay its amount, if the person released fails to
appear for any proceeding as ordered by the court. A surety, except one governed by
Mississippi Code Section 83-39-1 et. seq., shall file with the appearance bond an affidavit
or sworn certification:
(1) stating that the surety is not an attorney, judicial official, or person authorized to
accept bail;
(2) stating that the surety owns property in this state, which property, standing alone or
when aggregated with that of other sureties, is worth the amount of the appearance bond
(provided, that the property shall be exclusive of property exempt from execution and its
value equaling the amount of the appearance bond shall be above and over ail liabilities,
including the amount of all other outstanding appearance bonds entered into by the
surety) and specifying that property and the exemptions and liabilities thereon; and
(3) specifying the number and amount of other outstanding appearance bonds entered into
by the surety.
Generally, an attorney, judicial official, or person authorized to accept bail (e.g., a sheriff)
may not be a surety. However, an attorney, judicial official, or person authorized to accept
bail may be a surety for a member of the surety's immediate family. For purposes of this
Rule, the term “immediate family” shall be limited to include only: a spouse, a sibling, a
spouse's sibling, a lineal ancestor or descendant, a lineal ancestor or descendant of a
spouse, or a minor or incompetent person dependent upon the surety for more than
one-half ( ½ ) of his/her support. In such cases, the attorney, judicial official, or person
authorized to accept bail shall file with the appearance bond an affidavit stating the
surety's position, the surety's relationship to the person seeking release, and the
information required in Rule 8.1(f)(2) and (3).
(g) Bail. “Bail” is a monetary amount for or condition of pretrial release from custody,
normally set by a judge at the initial appearance.
(h) Insurer. The terms “insurer,” “professional bail agent,” “soliciting bail agent,” “bail
enforcement agent,” and “personal surety agent” shall be defined as in Mississippi Code
Section 83-39-1, et seq.
(i) Compliance Required. All agents and insurers shall comply fully with Mississippi
Code Sections 83-39-1, et seq., and 99-5-1, et seq., and all related statutes and
regulations.
MRCrP 8.2 Right to pretrial release on personal recognizance or on bond:
(a) Right to Release. Any defendant charged with an offense bailable as a matter of right
shall be released pending or during trial on the defendant's personal recognizance or on an
appearance bond unless the court before which the charge is filed or pending determines
that such a release will not reasonably assure the defendant's appearance as required, or
that the defendant's being at large will pose a real and present danger to others or to the
public at large. If such a determination is made, the court shall impose the least onerous
condition(s) contained in Rule 8.4 that will reasonably assure the defendant's appearance
or that will eliminate or minimize the risk of harm to others or to the public at large. In
making such a determination, the court shall take into account the following:
(1) the age, background and family ties, relationships and circumstances of the defendant;
(2) the defendant's reputation, character, and health;
(3) the defendant's prior criminal record, including prior releases on recognizance or on
unsecured or secured appearance bonds, and other pending cases;
(4) the identity of responsible members of the community who will vouch for the
defendant's reliability;
(5) violence or lack of violence in the alleged commission of the offense;
(6) the nature of the offense charged, the apparent probability of conviction, and the likely
sentence, insofar as these factors are relevant to the risk of nonappearance;
(7) the type of weapon used (e.g., knife, pistol, shotgun, sawed-off shotgun, assault or
automatic weapon, explosive device, etc.);
(8) threats made against victims or witnesses;
(9) the value of property taken during the alleged commission of the offense;
(10) whether the property allegedly taken was recovered or not, and damage or lack of
damage to the property allegedly taken;
(11) residence of the defendant, including consideration of real property ownership, and
length of residence in the defendant's domicile;
(12) in cases where the defendant is charged with a drug offense, evidence of selling or
distribution activity that should indicate a substantial increase in the amount of bond;
(13) consideration of the defendant's employment status and history, the location of
defendant's employment (e.g., whether employed in the county where the alleged offense
occurred), and the defendant's financial condition;
(14) sentence enhancements, if any, included in the charging document; and
(15) any other fact or circumstance bearing on the risk of nonappearance or on the danger
to others or to the public.
MRCrP 8.2 Specific statutory limits apply:
(b) Specific statutory limits apply. When a statute limits a judge's bail authority, such
statutory limits shall apply to the extent any of the amounts listed in section (c) are in
conflict therewith.
MRCrP 8.2 Bond guidelines:
(c) Bond Guidelines. The following is established as a general guide for circuit, county,
justice, and municipal courts in setting bail for persons charged with bailable offenses.
Except in situations where release is required in the minimum scheduled amount pursuant
to Rule 5.1(b) or (c), or any other Rule, courts may and should exercise discretion in
setting bail above or below the scheduled amounts, as supported by consideration of the
factors listed in Rule 8.2(a).
SECURED OR UNSECURED APPEARANCE BOND GUIDELINES
Recommended Range
FELONIES:
C Capital felony: $25,000 to No Bail Allowed
C Manslaughter (or any other non-capital crime involving loss of human life):
$10,000 to $1,000,000
C Drug Distribution and Trafficking: $ 5,000 to $1,000,000
C All other non-capital felonies:
- punishable by maximum 20 years or more: $20,000 to $250,000
- punishable by maximum 10 years to 20 years: $10,000 to $100,000
- punishable by maximum up to 10 years: $ 5,000 to $50,000
MISDEMEANORS (not included elsewhere in the schedule):
- punishable by maximum 1 year: $500 to $2,000
- punishable by maximum 6 mos.: $250 to $1,000
- punishable by less than 6 mos.: $100 to $500
- punishable by fine only: $50 to Max. Fine/Costs*
Misdemeanor DUI and DWLS: $500 to $2,000
Municipal Ordinance Violations: $100 to $1,000
* Maximum amount of fine(s), court costs, and statutory assessments which might be due
upon conviction.
MRCrP 8.3 Release after conviction and sentencing:
A convicted defendant shall be entitled to bail pending appeal as prescribed by
Mississippi Code Section 99-35-115. A condition of the appeal bond shall be that the
defendant will obey every order and judgment of the Supreme Court or Court of Appeals
or every order and judgment of the trial court affirmed by the Supreme Court or Court of
Appeals. 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.
MRCrP 8.4 Conditions of release:
(a) Mandatory Conditions. Every order of release under this Rule shall contain the
conditions that the defendant:
(1) appear in court, when required, and comply with all orders of the court;
(2) commit no crime;
(3) promptly notify the court of any change of address; and
(4) meet with your public defender or retained attorney, as directed.
(b) Additional Conditions. An order of release may include any one (1) or more of the
following conditions reasonably necessary to secure a defendant's appearance or to
protect the public:
(1) execution of an appearance bond in an amount specified by the court, either with or
without requiring that the defendant deposit with the clerk security in an amount as
required by the court;
(2) execution of a secured appearance bond;
(3) placing the defendant in the custody of a designated person or organization agreeing
to supervise the defendant;
(4) restrictions on the defendant's travel, associations, or place of abode during the period
of release:
(5) restrictions on the defendant's direct or indirect contact with any specified person(s);
(6) return to custody after specified hours;
(7) participation in, and successful completion of, any drug, alcohol, anger management,
mental health, or other treatment required by the court, and/or substance testing;
(8) participation in General Educational Development (GED®) classes and testing or in
any other educational activities required by the court;
(9) electronic monitoring; or
(10) any other conditions which the court deems reasonably necessary.
MRCrP 8.5 Procedure for determination of release conditions:
(a) Initial Decision. When a defendant is brought before a court for initial appearance, a
determination of the conditions of release shall be made. The judge shall issue an order
containing the conditions of release and shall inform the defendant of the conditions, the
possible consequences of their violation, and that a warrant for the defendant's arrest may
be issued immediately upon report of a violation.
(b) Amendment of Conditions. The court may, for good cause shown, on its own
initiative or on application of either party, modify the conditions of release, after first
giving the parties an adequate opportunity to respond to the proposed modification.
(c) Review by Circuit Court. No later than seven (7) days before the commencement of
each term of circuit court in which criminal cases are adjudicated, the official(s) having
custody of felony defendants being held for trial, grand jury action, or extradition within
the county (or within the county's judicial districts in which the court term is to be held)
shall provide the presiding judge, the district attorney, and the clerk of the circuit court
the names of all defendants in their custody, the charge(s) upon which they are being
held, and the date they were most recently taken into custody. The senior circuit judge, or
such other judge as the senior circuit judge designates, shall review the conditions of
release for every felony defendant who is eligible for bail and has been in jail for more
than ninety (90) days.
MRCrP 8.5 Review of conditions; revocation of bail:
(a) Issuance of Warrant. If it is alleged that a defendant previously released has
committed a material breach of the conditions of release, then the court having
jurisdiction over the defendant may procure the defendant's presence in court by issuing
an order to appear before the court to show cause, or by issuing an arrest warrant under
Rule 3.1. Such action shall be predicated upon a motion of the prosecuting attorney, or
the court's own motion, which states with particularity:
(1) the facts or circumstances alleged to constitute a material breach of the conditions of
release;
(2) that material misrepresentations or omissions of fact were made in securing the
defendant's release; or
(3) that revocation is otherwise required by law.
If action is taken on motion of the prosecuting attorney, then a copy of the motion shall be
served with the order or warrant, and a hearing shall be held on the motion without
unnecessary delay.
(b) Hearing; Review of Conditions; Revocation of Release. If, after a hearing on the
matters set forth in the motion, the court finds that the released defendant has materially
breached the conditions of release, the court may modify the conditions or revoke the
release. If a ground alleged for revocation of the release is that the defendant has
committed a criminal offense or has made misrepresentations or omissions in informing
the court of other charges pending against the defendant, the court may modify the
conditions of release or revoke the release, if the court finds that there is probable cause
to believe that the defendant committed the other pending offense(s).
(c) Cases Governed by Article 3, Section 29(2) of the Mississippi Constitution. In cases
governed by Article 3, section 29(2) of the Mississippi Constitution of 1890, on motion
of the prosecuting attorney or on the court's own motion, a court having jurisdiction over
the defendant may revoke the defendant's bail.
MRCrP 8.7 Transfer and disposition of bond:
(a) Transfer Upon Supervening Indictment. An appearance bond or release order issued to
assure the defendant's presence for proceedings following the filing of a charging
affidavit shall automatically be transferred to the same, related, or lesser charge
subsequently prosecuted by indictment unless, following indictment, the judge presiding,
for good cause, shall order revocation or modification of the conditions of release, as
provided in Rule 8.6(a) and (b).
(b) Filing and Custody of Appearance Bonds and Security. Appearance bonds and
security shall be filed with the clerk of the court in which the case is pending. Whenever
the case is transferred to another court, any appearance bond and security shall be
transferred also.
(c) Surrender of Defendant by Surety. The surrender of the defendant by a surety shall be
governed by Mississippi Code Sections 99-5-27 and 99-5-29. In the event that a
Professional Bail Agent, Soliciting Bail Agent, or Insurer has provided a surety bond or
other form of bail for a defendant without first obtaining payment in full for the premium
on the bond, that defendant may not be surrendered because the defendant, or anyone
assuming financial responsibility for the bond premium on the defendant's behalf, has
failed to make any payment to the surety following release of the defendant.
(d) Forfeiture. If at any time it appears to the court that a defendant has failed to appear,
the court shall proceed as appropriate pursuant to Mississippi Code Sections 99-5-25 or
21-23-8, and any related statutes or regulations which may apply.
(e) Cancellation of Bond. At any time that the court finds there is no further need for an
appearance bond, the court shall cancel the appearance bond and order the return of any
security deposited with the clerk.
702 STATUTES ON BONDS AND RECOGNIZANCES
Rules prevail over conflicting statutory procedures:
See Jones v. City of Ridgeland, 48 So. 3d 530, 537 (Miss. 2010) (“Procedure is defined as
‘[t]he mode of proceeding by which a legal right is enforced, as distinguished from the
substantive law which gives or defines the rights, and which, by means of the
proceedings, the court is to administer; the machinery, as distinguished from its product.’
Black's Law Dictionary 1203-04 (6th ed.1990).”); Newell v. State, 308 So. 2d 71, 76
(Miss. 1975) (“We are keenly aware of, and measure with great respect, legislative
suggestions concerning procedural rules and they will be followed unless determined to
be an impediment to justice or an impingement upon the constitution. The inherent power
of this Court to promulgate procedural rules emanates from the fundamental
constitutional concept of the separation of powers and the vesting of judicial powers in
the courts.”); Southern Pac. Lumber Co. v. Reynolds, 206 So. 2d 334, 335 (Miss. 1968)
(“The phrase ‘judicial power’ in section 144 of the Constitution includes the power to
make rules of practice and procedure, not inconsistent with the Constitution, for the
efficient disposition of judicial business.”).
§ 21-23-7 Municipal judges as conservators of the peace:
(1) The municipal judge is a conservator of the peace within his municipality. He may
conduct preliminary hearings in all violations of the criminal laws of this state occurring
within the municipality, and any person arrested for a violation of law within the
municipality may be brought before him for initial appearance.
When municipal judges may take recognizance or bond:
§ 21-23-8
(4)(a) The municipal judge shall set the amount of bail for persons charged with offenses
in municipal court and may approve the bond or recognizance therefor.
§ 99-5-11
(1) All justice court judges and all other conservators of the peace are authorized,
whenever a person is brought before them charged with any offense not capital for which
bail is allowed by law, to take the recognizance or bond of the person, with sufficient
sureties, in such penalty as the justice court judge or conservator of the peace may
require, for his appearance before the justice court judge or conservator of the peace for
an examination of his case at some future day. And if the person thus recognized or thus
giving bond fails to appear at the appointed time, it shall be the duty of the justice court
judge or conservator of the peace to return the recognizance or bond, with his certificate
of default, to the court having jurisdiction of the case, and a recovery may be had therein
by scire facias, as in other cases of forfeiture. The justice court judge or other conservator
of the peace shall also issue an alias warrant for the defaulter.
(2) In circumstances involving an offense against any of the following: (a) a current or
former spouse of the accused or child of that person; (b) a person living as a spouse or
who formerly lived as a spouse with the accused or a child of that person; (c) a parent,
grandparent, child, grandchild or someone similarly situated to the accused; (d) a person
who has a current or former dating relationship with the accused; or (e) a person with
whom the accused has had a biological or legally adopted child, the justice court judge or
other conservator of the peace shall check, or cause to be made a check, of the status of
the person for whom recognizance or bond is taken before ordering bail in the Mississippi
Protective Order Registry authorized under Section 93–21–25, and the existence of a
domestic abuse protection order against the accused shall be considered when
determining appropriate bail.
(3) After the court considers the provisions of subsection (2) of this section, a
misdemeanant may be released on his or her own recognizance unless:
(a) The misdemeanant:
(i) Is on probation or parole;
(ii) Has other unresolved charges pending; or
(iii) Has a history of nonappearance; or
(b) The court finds that:
(i) The release of the misdemeanant would constitute a special danger to any other person
or to the community; or
(ii) Release of the misdemeanant on his or her own recognizance is highly unlikely to
assure the appearance of the misdemeanant as required.
§ 21-23-8 When officer designated by municipal judge may take bond:
(4)(b) In instances where the municipal judge is unavailable and has not provided a bail
schedule or otherwise provided for the setting of bail, it is lawful for any officer or
officers designated by order of the municipal judge to take bond, cash, property or
recognizance, with or without sureties, in a sum to be determined by the officer, payable
to the municipality and conditioned for the appearance of the person on the return day and
time of the writ before the court to which the warrant is returnable, or in cases of arrest
without a warrant, on the day and time set by the court or officer for arraignment, and
there remain from day to day and term to term until discharged. . . . The chief of the
municipal police or a police officer or officers designated by order of the municipal judge
may approve bonds or recognizances.
§ 21-23-8 All bonds to be promptly returned to the court:
(4)(c) All bonds shall be promptly returned to the court, together with any cash deposited,
and be filed and proceeded on by the court in a case of forfeiture.
§ 21-23-8 To whom payable:
(4)(d) All bonds and recognizances in municipal court where the municipal court shall
have the jurisdiction to hear and determine the case may be made payable to the
municipality and shall have the effect to bind the principal and any sureties on the bond or
recognizance until they shall be discharged by due course of law without renewal.
§ 99-5-1 Bail form; information required from professional or soliciting bail
agents; penalties for noncompliance:
Bail may be taken in the following form, viz:
. . .
When the bail is for appearance before any committing court or a judge, the form may be
varied to suit the condition.
When a bond is taken from a professional bail agent, the following must be preprinted or
stamped clearly and legibly on the bond form: full name of the professional bail agent,
Department of Insurance license number, full and correct legal address of the professional
bail agent and complete phone number of the professional bail agent. In addition, if the
bond is posted by a limited surety professional bail agent, the name of the insurer, the
legal address of the insurer on file with the department and phone number of the insurer
must be preprinted or stamped, and a true and correct copy of an individual's power of
attorney authorizing the agent to post such bond shall be attached.
If the bond is taken from a soliciting bail agent, the full name of the soliciting bail agent
and the license number of such agent must be preprinted or stamped clearly and legibly
along with all information required for a professional bail agent and a true and correct
copy of an individual's power of attorney authorizing such soliciting bail agent to sign the
name of the professional bail agent.
Any professional bail agent and/or soliciting bail agents who issue a bail bond that does
not contain this required information may have their license suspended up to six (6)
months and/or be fined not more than One Thousand Dollars ($1,000.00) for the first
offense, may have their license suspended up to one (1) year and/or be fined not more
than Five Thousand Dollars ($5,000.00) for the second offense and shall have their
license permanently revoked if they commit a third offense.
The court or the clerk of the court shall notify the department when any professional bail
agent or soliciting bail agent or insurer issues a bail bond that contains information that
misleads a court about the proper delivery by personal service or certified mail of a writ
of scire facias, judgment nisi or final judgment.
§ 99-5-3 Form of bail in open court:
Bail taken in open court may be entered on the minutes as follows, to wit:
“The State No. ___ v. A. B.
“Came the said A. B. and C. D. and E. F. and agreed to pay the state of Mississippi
__________ dollars, unless the said A. B. shall appear at the present term of this court,
and remain from day to day, and from term to term until discharged by law, to answer a
charge of __________.”
§ 99-5-5 Bonds payable to state:
All bonds and recognizances taken for the appearance of any party, either as defendant,
prosecutor, or witness in any criminal proceeding or matter, shall be made payable to the
state, and shall have the effect to bind the accused and his sureties on the bond or
recognizance until the principal shall be discharged by due course of law, and shall be in
full force, from term to term, for a period of three (3) years, except that a bond returnable
to the Supreme Court shall be in full force for a period of five (5) years. If it is necessary
to renew a bond, it shall be renewed without additional premium. At the end of the
applicable period, a bond or recognizance that is not renewed shall expire and shall be
uncollectible unless the collection process was started on or before the expiration date of
such bond or recognizance. Any bond or recognizance taken prior to July 1, 1996, shall
expire on July 1, 1999. If a defendant is charged with multiple counts in one (1) warrant
only one (1) bond shall be taken.
§ 99-5-7 Fidelity or surety companies providing bail:
Bail may be given to the sheriff or officer holding the defendant in custody, by a fidelity
or surety insurance company authorized to act as surety within the State of Mississippi.
Any such company may execute the undertaking as surety by the hand of officer or
attorney authorized thereto by a resolution of its board of directors, a certified copy of
which, under its corporate seal, shall be on file with the clerk of the circuit court and the
sheriff of the county, and such authority shall be deemed in full force and effect until
revoked in writing by notice to said clerk and sheriff.
§ 99-5-9 Cash bail bond:
(1) In addition to any type of bail allowed by statute, any committing court, in its
discretion, may allow any defendant, to whom bail is allowable, to deposit cash as bail
bond in lieu of a surety or property bail bond, by depositing such cash sum as the court
may direct with the sheriff or officer having custody of defendant, who shall receipt
therefor and who shall forthwith deliver the said monies to the county treasurer, who shall
receipt therefor in duplicate. The sheriff, or other officer, upon receipt of the county
treasurer, shall forthwith deliver one (1) copy of such receipt to the committing court who
shall then order the release of such defendant.
(2) The order of the court shall set forth the conditions upon which such cash bond is
allowed and shall be determined to be the agreement upon which the bailee has agreed.
(3) The sums received by the county treasurer shall be deposited by him in a special fund
to be known as “Cash Bail Fund,” and shall be received by him subject to the terms and
conditions of the order of the court.
(4) If the committing court authorizes bail by a cash deposit under subsection (1) of this
section, but anyone authorized to release a criminal defendant allows the deposit of an
amount less than the full amount of the bail ordered by the court, the defendant may post
bail by a professional bail agent in an amount equal to one-fourth ( ¼ ) of the full amount
fixed under subsection (1) or the amount of the actual deposit whichever is greater.
§ 99-5-13 Insufficient or excessive bail; hearing; orders for reduction or
additional bail:
When it shall appear to the committing court or the court before which any person
charged with a criminal offense has given bail to appear is insufficient or excessive in any
respect, the court may (i) after a hearing, order the issuance of a revised mittimus
reducing the previously set bail; or (ii) order the issuance of process for the arrest of such
person, and may, after a hearing, require him to give bail as may be ordered, and, in
default thereof, may commit him to jail as in other cases.
§ 99-5-15 Release of defendant:
It is the duty of the sheriff or other officer having custody of such defendant, upon his
compliance with the order of the committing court or officer, to release him from
custody; and he shall approve the sureties on the bond, except admitted and authorized
fidelity and surety insurance companies acting as surety, and for that purpose may
examine them on oath, or take their affidavit in writing, and may administer such oath.
See also Miss. Code Ann. § 83-39-23 (“No sheriff or other official shall accept bond from
a professional bail agent unless the bail agent is licensed under this chapter and unless the
bail agent shall exhibit to the court a valid certificate or license issued by the department,
and the license of the bail agent shall not have been suspended or revoked. The
department shall provide notice to the sheriff and municipal law enforcement and to the
courts of every county and municipality of any suspension or revocation of a professional,
soliciting or bail enforcement license. The department, upon request, may furnish to any
sheriff, district, circuit, county or justice court judge or municipal judge additional
information which would appropriately identify the duly licensed professional bail agent
and insurers whose operation is covered by this chapter.”); Miss. Code Ann. § 99-33-7
(“It is lawful for any officer having a person in custody by virtue of a warrant of a justice
court judge, in a case in which the judge has a final jurisdiction, to take bond with
sufficient sureties, in a sum of not less than Fifty Dollars ($50.00), nor more than One
Thousand Dollars ($1,000.00), except . . . .”).
§ 99-5-17 Return of bail bond to clerk:
It is the duty of the sheriff taking a bail-bond to return the same to the clerk of the circuit
court of the county in which the offense is alleged to have been committed on or before
the first day of the next term thereof.
§ 99-5-19 Special bail:
If any person, except a properly authorized judge, authorized to release a criminal
defendant neglects to take a bail bond, or if the bail bond from any cause is insufficient at
the time he took and approved the same, on exceptions taken and filed before the close of
the next term, after the same should have been returned, and upon reasonable notice
thereof to the person, he shall stand as special bail, and judgment shall be rendered
against him as such, except when bond is tendered by a fidelity or insurance company or
professional bail agent or its bail agent authorized by Mississippi state license to act as
bail surety. The person taking and approving a bail bond from a fidelity or insurance
company or professional bail agent or its bail agent with a valid Mississippi state license
shall bear no financial liability on the bail bond in the event of a bail bond forfeiture or
default.
§ 99-5-21 Description of offense in bond:
All bonds and recognizances taken in criminal cases, whether they describe the offense
actually committed or not, shall have the effect to hold the party bound thereby to answer
to such offense as he may have actually committed, and shall be valid for that purpose
until he be discharged by the court.
§ 99-5-23 Bonds deemed valid and binding:
All bonds, recognizances, or acknowledgments of indebtedness, conditioned for the
appearance of any party before any court or officer, in any state case or criminal
proceeding, which shall have the effect to free such party from jail or legal custody of any
sort, shall be valid and bind the party and sureties, according to the condition of such
bond, recognizance, or acknowledgment, whether it was taken by the proper officer or
under circumstances authorized by law or not, or whether the officer's return identify it or
not.
It shall not be an objection to any bail-bond or recognizance that it is in the form of an
acknowledgment before a court or officer and is without the signature of any person, or is
without the indorsement of approval by any officer; but all persons who, by their
acknowledgment before any officer of liability to pay a sum of money to the state if some
person shall not appear before some court or officer in a criminal prosecution, procure the
discharge from custody of such person, shall be bound accordingly upon the
recognizance. An obligation signed by a person to obtain the discharge from custody of
another shall not be invalid, if it have that effect, because it does not have indorsed on it
the approval of any officer, or because the taking thereof be not recited in the return of the
officer.
§ 99-33-13 Procedure in felony cases; remand of cases to be tried as
misdemeanors:
If on the trial of any criminal case the justice court judge discover that it is a felony, and
not a misdemeanor, of which the accused has been guilty, he shall not punish the offender
nor render any judgment finally disposing of the case, but shall require him to give bail
for his appearance in the circuit court, unless the felony be not bailable, in which case the
justice shall commit him without bail. A circuit court grand jury may remand a case to
justice court to be tried as a misdemeanor after finding that the felony charge presented
should be remanded with its bond to justice or municipal court to be tried as a
misdemeanor.
703 FORFEITURE OF BAIL
§ 21-23-8 Purpose of bail:
(1)(a) The purpose of bail is to guarantee appearance and a bail bond shall not be forfeited
for any other reason.
See also Clay v. State, 757 So. 2d 236, 240-41 (Miss. 2000) (“The purpose of bail is to
secure the presence of the accused at trial, not necessarily to expedite the judicial
process.”).
§ 21-23-8 Ordering the forfeiture of bail:
(1)(b)(i) If a defendant in any criminal case, proceeding or matter fails to appear for any
proceeding as ordered by the municipal court, then the court shall order the bail forfeited
and a judgment nisi and a bench warrant issued at the time of nonappearance.
Mississippi Attorney General’s opinions:
Bondsman may not enter plea of guilty for a defendant.
“[T]here is no authority for a bondsman to pled a defendant guilty and pay his criminal
fine in lieu of forfeiture of a bond. The defendant may be tried in absentia and a fine
imposed if he is found guilty.” Op. Atty. Gen. Arnold, August 18, 2000.
Forfeiting bond where defendant is tried in absentia.
“[A] municipal or justice court may forfeit a security bond posted for the appearance of a
defendant at a trial if that defendant fails to appear for trial, even if the defendant is tried
in absentia. The obligation to have the defendant before the court is not relieved by a trial
in absentia. The appearance of the defendant before the court is still necessary in order for
the court to carry out the sentence imposed upon a finding of guilt. A bonding company
may relieve itself of the liability by surrendering the defendant to the court or to the
proper law enforcement authorities.” Op. Atty. Gen. Younger, January 21, 2000.
§ 21-23-8 Notifying surety of the forfeiture:
(1)(b)(i) . . . The clerk of the municipal court shall notify the surety of the forfeiture by
writ of scire facias, with a copy of the judgment nisi and bench warrant attached thereto,
within ten (10) working days of such order of judgment nisi either by personal service or
by certified mail. Failure of the clerk to provide the required notice within ten (10)
working days shall constitute prima facie evidence that the order should be set aside.
Note that Miss. Code Ann. § 99-5-25(1)(b), a general provision of bail that applies “if a
defendant in any criminal case, proceeding or matter fails to appear for any proceeding as
order by the court,” requires that: “Any felony warrant for nonappearance shall be put on
the National Crime Information Center (NCIC) until the defendant is returned to
custody.”
§ 21-23-8 Setting aside a judgment nisi:
(1)(b)(ii) 1. The judgment nisi shall be returnable for ninety (90) days from the date of
issuance. If during that period the defendant appears before the municipal court, or is
arrested and surrendered, then the judgment nisi shall be set aside. If the surety produces
the defendant or provides to the municipal court reasonable mitigating circumstances
upon such showing, then the forfeiture shall not be made final.
§ 21-23-8 Reasonable mitigating circumstances:
(1)(b)(ii) 2. Reasonable mitigating circumstances shall be that the defendant is
incarcerated in another jurisdiction; that the defendant is hospitalized under a doctor's
care; that the defendant is in a recognized drug rehabilitation program; that the defendant
has been placed in a witness protection program, in which case it shall be the duty of any
agency placing the defendant into a witness protection program to notify the municipal
court and the municipal court to notify the surety; or any other reason justifiable to the
municipal court.
§ 21-23-8 If the forfeiture is made final:
(1)(b)(ii) 1. . . . If the forfeiture is made final, a copy of the final judgment shall be served
on the surety within ten (10) working days by either personal service or certified mail.
§ 21-23-8 Revoking the surety’s authority to write bail bonds:
(2) If a final judgment is entered against a surety licensed by the Department of Insurance
and has not been set aside after ninety (90) days, or later if such time is extended by the
municipal court issuing the judgment nisi, then the municipal court shall order the
department to revoke the authority of the surety to write bail bonds. The Commissioner of
Insurance shall, upon notice of the municipal court, notify the surety within five (5)
working days of receipt of the order of revocation. If after ten (10) working days of the
notification the revocation order has not been set aside by the municipal court, then the
commissioner shall revoke the authority of the surety and all agents of the surety and shall
notify the sheriff of every county of such revocation.
§ 21-23-8 Refunding bail amounts:
(3) If within eighteen (18) months of the date of the final forfeiture the defendant appears
for municipal court, is arrested or surrendered to the municipal court, or if the defendant
is found to be incarcerated in another jurisdiction and a hold order placed on the
defendant, then the amount of bail, less reasonable extradition cost, excluding attorney
fees, shall be refunded by the municipal court upon application by the surety.
Mississippi Attorney General’s opinions:
When the 18 month period commences.
“It is the date of final forfeiture that determines the commencement of the 18 month
period.” Op. Atty. Gen. Henry, July 29, 2011.
704 SURETY OR ARREST OF PRINCIPAL
§ 99-5-27 Surrender defined:
(1)(a) “Surrender” means the delivery of the defendant, principal on bond, physically to
the sheriff or chief of police or in his absence, his jailer, and it is the duty of the sheriff or
chief of police, or his jailer, to accept the surrender of the principal when presented and
such act is complete upon the execution of verbal or written surrender notice presented by
a bail agent and shall relieve the bail agent of liability on the principal's bond.
§ 99-5-27 Surrendering the principal:
(1)(b) A bail agent may surrender the principal if the principal is found to be detained on
another charge. If the principal is found incarcerated in another jurisdiction, the bail agent
may surrender him by verbal or written notice of surrender to the sheriff or chief of
police, or his jailer, of that jurisdiction and the notice of surrender shall act as a “Hold
Order” and upon presentation of written surrender notice to the court of proper
jurisdiction, the court shall order a “Hold Order” placed on the principal for the court and
shall relieve the bail agent of liability on the principal's bond, with the provision that,
upon release from incarceration in the other jurisdiction, return of the principal to the
sheriff shall be the responsibility of the bail agent. The bail agent shall satisfy the
responsibility to return a principal held by a “Hold Order” in another jurisdiction upon
release from the other jurisdiction either by personally returning the principal to the
sheriff at no cost to the county or, where the other jurisdiction will not release the
principal to any person other than a law enforcement officer, by reimbursing to the county
the reasonable cost of the return of the principal, not to exceed the cost that would be
entailed if the first option were available.
. . .
(2)(a) A bail agent, at any time, may surrender the principal to any law enforcement
agency or in open court in discharge of the bail agent's liability on the principal's bond if
the law enforcement agency that was involved in setting the original bond approves of
such surrender, to the State of Mississippi and any of its courts and at any time may arrest
and transport its principal anywhere or may authorize another to do so, may be assisted by
any law enforcement agency or its agents anywhere upon request of bail and may receive
any information available to law enforcement or the courts pertaining to the principal for
the purpose of safe surrender or for any reasonable cause in order to safely return the
principal to the custody of law enforcement and the court.
§ 99-5-27 Effect of a timely surrender:
(1)(c) The surrender of the principal by the bail agent, within the time period provided in
Section 99-5-25, shall serve to discharge the bail agent's liability to the State of
Mississippi and any of its courts; but if this is done after forfeiture of the bond or
recognizance, the court shall set aside the judgment nisi or final judgment upon filing of
surrender notice by the bail agent.
§ 99-5-27 Effect of failing to accept surrender:
(2)(b) A bail agent, at any time, may arrest its principal anywhere or authorize another to
do so for the purpose of surrender of the principal on bail bond. Failure of the sheriff or
chief of police or his jailer, any law enforcement agency or its agents or the court to
accept surrender by a bail agent shall relieve the bail agent of any liability on the
principal's bond, and the bond shall be void.
(3) A bail agent, at any time, upon request by the defendant or others on behalf of the
defendant, may privately interview the defendant to obtain information to help with
surrender before posting any bail bond on behalf of the defendant. All licensed bail agents
shall have equal access to jails or detention facilities for the purpose of such interviews,
the posting of bail bonds and the surrender of the principal.
§ 99-5-27 Review of bail upon surrender:
(4) Upon surrender, the court, after full review of the defendant and the pending charges,
in open court, may discharge the prisoner on his giving new bail, but if he does not give
new bail, he shall be detained in jail.
§ 99-5-29 Surety may cause arrest of principal by officer:
The sheriff or a constable in a proper case, upon the request of a surety in any bond or
recognizance, and tender of the legal fee for executing a capias in a criminal case, and the
production of a certified copy of the bond of recognizance, shall arrest, within his county,
the principal in the bond or recognizance. The surety or his agent shall accompany the
officer to receive the person.
§ 99-5-31 Mittimus in bailable cases to fix the bail:
When a defendant charged with a criminal offense shall be committed to jail by a court,
judge, justice or other officer, for default in not giving bail, it is the duty of such court or
officer to state in the mittimus the nature of the offense, the county where committed, the
amount of bail, and number of sureties required, and to direct the sheriff of the county
where such party is ordered to be confined to release him, on his entering into bond as
required by the order of the court or committing officer; and this shall apply to a case
where, on habeas corpus, an order for bail may be made.
705 DOMESTIC VIOLENCE CONSIDERATIONS
§ 99-5-37 Required appearance:
(1) In any arrest for (a) a misdemeanor that is an act of domestic violence as defined in
Section 99-3-7(5); (b) aggravated domestic violence as defined in Section 97-3-7(4); (c)
aggravated stalking as defined in Section 97-3-107(2); (d) a knowing violation of a
condition of bond imposed pursuant to this section; or (e) a knowing violation of a
domestic abuse protection order issued pursuant to Section 93-21-1 et seq., or a similar
order issued by a foreign court of competent jurisdiction for the purpose of protecting a
person from domestic abuse, no bail shall be granted until the person arrested has
appeared before a judge of the court of competent jurisdiction. The appearance may be by
telephone. Nothing in this section shall be construed to interfere with the defendant's right
to an initial appearance or preliminary hearing.
§ 99-5-37 Judge to consider exigencies of the case:
(2) Upon setting bail, the judge may impose on the arrested person a holding period not to
exceed twenty-four (24) hours from the time of the initial appearance or setting of bail.
The judge also shall give particular consideration to the exigencies of the case, including,
but not limited to, (a) the potential for further violence; (b) the past history, if any, of
violence between the defendant and alleged victim; (c) the level of violence of the instant
offense; (d) any threats of further violence; and (e) the existence of a domestic violence
protection order prohibiting the defendant from engaging in abusive behavior, and shall
impose any specific conditions on the bond as he or she may deem necessary. Specific
conditions which may be imposed by the judge may include, but are not limited to, the
issuance of an order prohibiting the defendant from contacting the alleged victim prior to
trial, prohibiting the defendant from abusing or threatening the alleged victim or requiring
defendant to refrain from drug or alcohol use.
§ 99-5-37 Bond conditions to be entered into Uniform Offense Report:
(3) All bond conditions imposed by the court shall be entered into the corresponding
Uniform Offense Report and written notice of the conditions shall be provided at no cost
to the arrested person upon his or her release, to the appropriate law enforcement agency,
and to the clerk of the court. Upon request, a copy of the written notice of conditions shall
be provided at no cost to the victim. In any prosecution for violation of a bond condition
imposed pursuant to this section, it shall not be a defense that the bond conditions were
not entered into the corresponding Uniform Offense Report.
§ 99-5-37 Arresting a violator of bond conditions:
(4) Within twenty-four (24) hours of a violation of any bond conditions imposed pursuant
to this section, any law enforcement officer having probable cause to believe that the
violation occurred may make a warrantless arrest of the violator.
§ 99-5-37 Section not construed as interfering with judge’s authority:
(5) Nothing in this section shall be construed to interfere with the judges' authority, if any,
to deny bail or to otherwise lawfully detain a particular defendant.
§ 99-5-38 Global positioning system as a condition of bond:
(1)(a) “Domestic violence” has the same meaning as the term “abuse” as defined in
Section 93-21-3.
(b) “Global positioning monitoring system” means a system that electronically determines
and reports the location of an individual through the use of a transmitter or similar device
carried or worn by the individual that transmits latitude and longitude data to a
monitoring entity through global positioning satellite technology. The term does not
include a system that contains or operates global positioning system technology, radio
frequency identification technology or any other similar technology that is implanted in or
otherwise invades or violates the individual's body.
(2) The court may require as a condition of release on bond that a defendant charged with
an offense involving domestic violence:
(a) Refrain from going to or near a residence, school, place of employment, or other
location, as specifically described in the bond, frequented by an alleged victim of the
offense;
(b) Carry or wear a global positioning monitoring system device and, except as provided
by subsection (8), pay the costs associated with operating that system in relation to the
defendant; or
(c) If the alleged victim of the offense consents after receiving the information described
by subsection (4) and, except as provided by subsection (8), pay the costs associated with
providing the victim with an electronic receptor device that:
(i) Is capable of receiving the global positioning monitoring system information from the
device carried or worn by the defendant; and
(ii) Notifies the victim if the defendant is at or near a location that the defendant has been
ordered to refrain from going to or near under paragraph (a).
(3) Before imposing a condition described by subsection (2)(a), the court must afford an
alleged victim an opportunity to provide the court with a list of areas from which the
victim would like the defendant excluded and shall consider the victim's request, if any,
in determining the locations the defendant will be ordered to refrain from going to or
near. If the court imposes a condition described by subsection (2)(a), the court shall
specifically describe the locations that the defendant has been ordered to refrain from
going to or near and the minimum distances, if any, that the defendant must maintain
from those locations.
(4) Before imposing a condition described by subsection (2)(c), the court must provide to
an alleged victim information regarding:
(a) The victim's right to participate in a global positioning monitoring system or to refuse
to participate in that system and the procedure for requesting that the court terminate the
victim's participation;
(b) The manner in which the global positioning monitoring system technology functions
and the risks and limitations of that technology, and the extent to which the system will
track and record the victim's location and movements;
(c) Any locations that the defendant is ordered to refrain from going to or near and the
minimum distances, if any, that the defendant must maintain from those locations;
(d) Any sanctions that the court may impose on the defendant for violating a condition of
bond imposed under this section;
(e) The procedure that the victim is to follow, and support services available to assist the
victim, if the defendant violates a condition of bond or if the global positioning
monitoring system equipment fails;
(f) Community services available to assist the victim in obtaining shelter, counseling,
education, child care, legal representation, and other assistance available to address the
consequences of domestic violence; and
(g) The fact that the victim's communications with the court concerning the global
positioning monitoring system and any restrictions to be imposed on the defendant's
movements are not confidential.
(5) In addition to the information described by subsection (4), the court shall provide to
an alleged victim who participates in a global positioning monitoring system under this
section the name and telephone number of an appropriate person employed by a local law
enforcement agency who the victim may call to request immediate assistance if the
defendant violates a condition of bond imposed under this section.
(6) In determining whether to order a defendant's participation in a global positioning
monitoring system under this section, the court shall consider the likelihood that the
defendant's participation will deter the defendant from seeking to kill, physically injure,
stalk, or otherwise threaten the alleged victim before trial.
(7) An alleged victim may request that the court terminate the victim's participation in a
global positioning monitoring system at any time. The court may not impose sanctions on
the victim for requesting termination of the victim's participation in or refusing to
participate in a global positioning monitoring system under this section.
(8) The court may allow a defendant to perform community service in lieu of paying the
costs required by subsection (2)(b) or (c) if the court determines that the defendant is
indigent.
(9) The court that imposes a condition described by subsection (2)(a) or (b) shall order the
entity that operates the global positioning monitoring system to notify the court and the
appropriate local law enforcement agency if a defendant violates a condition of bond
imposed under this section.
(10) This section does not limit the authority of the court to impose any other reasonable
conditions of bond or enter any orders of protection under other applicable statutes.
706 APPEARANCE BOND AS CONDITION OF PROBATION, COMMUNITY
CONTROL, PAYMENT PLAN, OR OTHER COURT ORDERED SUPERVISION
§ 99-5-39
(1) As a condition of any probation, community control, payment plan for any fine
imposed or any other court ordered supervision, the court may order the posting of a bond
to secure the appearance of the defendant at any subsequent court proceeding or to
otherwise enforce the orders of the court. The appearance bond shall be filed by a duly
licensed professional bail agent with the court or with the sheriff who shall provide a
copy to the clerk of court.
(2) The court may issue an order sua sponte or upon notice by the clerk or the probation
officer that the person has violated the terms of probation, community control, court
ordered supervision or other applicable court order to produce the defendant. The court or
the clerk of the court shall give the bail agent a minimum of a seventy-two-hour notice to
have the defendant before the court. If the bail agent fails to produce the defendant in
court or to the sheriff at the time noticed by the court or the clerk of court, the bond shall
be forfeited according to the procedures set forth in Section 99-5-25. The defendant's
failure to appear shall be the sole grounds for forfeiture of the appearance bond.
(3) The provisions of Sections 83-39-1 et seq. and 99-5-1 et seq. shall govern the
relationship between the parties except where they are inconsistent with this section.
707 STATUTORY BOND FEES
§ 83-39-1 Bail defined:
(j) “Bail” means the use of money, property or other security to cause the release of a
defendant from custody and secure the appearance of a defendant in criminal court
proceedings, or the monitoring or supervision of defendants who are released from
custody on recognizance, parole or probation, except when such monitoring or
supervision is conducted after conviction, sentencing or other adjudication and solely by
public employees.
§ 83-39-31 Fees that may be imposed:
(1) Upon every defendant charged with a criminal offense who posts a cash bail bond, a
surety bail bond, a property bail bond or a guaranteed arrest bond certificate conditioned
for his appearance at trial, there is imposed a fee equal to two percent (2%) of the face
value of each bond or Twenty Dollars ($20.00), whichever is greater, to be collected by
the clerk of the court when the defendant appears in court for final adjudication or at the
time the defendant posts cash bond unless subsection (4) applies.
(2) Upon each defendant charged with a criminal offense who is released on his own
recognizance, who deposits his driver's license in lieu of bail, or who is released after
arrest on written promise to appear, there is imposed a fee of Twenty Dollars ($20.00) to
be collected by the clerk of the court when the defendant appears in court for final
adjudication unless subsection (4) applies.
§ 83-39-31 Fee if defendant appeals conviction:
(3) Upon each defendant convicted of a criminal offense who appeals his conviction and
posts a bond conditioned for his appearance, there is imposed a fee equal to two percent
(2%) of the face value of each bond or Twenty Dollars ($20.00), whichever is greater. If
such defendant is released on his own recognizance pending his appeal, there is imposed
a fee of Twenty Dollars ($20.00). The fee imposed by this subsection shall be imposed
and shall be collected by the clerk of the court when the defendant posts a bond unless
subsection (4) applies.
§ 83-39-31 When fees are not to be imposed:
(4) If a defendant is found to be not guilty or if the charges against a defendant are
dismissed, or if the prosecutor enters a nolle prosequi in the defendant's case or retires the
defendant's case to the file, or if the defendant's conviction is reversed on appeal, the fees
imposed pursuant to subsections (1), (2), (3) and (7) shall not be imposed.
§ 83-39-31 State Auditor regulations pertaining to bail bonds:
(5) The State Auditor shall establish by regulation procedures providing for the timely
collection, deposit, accounting and, where applicable, refund of the fees imposed by this
section. The Auditor shall provide in the regulations for certification of eligibility for
refunds and may require the defendant seeking a refund to submit a verified copy of a
court order or abstract by which the defendant is entitled to a refund.
§ 83-39-31 Clerk to promptly collect fees:
(6) It shall be the duty of the clerk or any officer of the court authorized to take bonds or
recognizances to promptly collect, at the time such bonds or recognizances are received
or taken, all fees imposed pursuant to this section. In all cases, the clerk or officer of the
court shall deposit all fees so collected with the State Treasurer, pursuant to appropriate
procedures established by the State Auditor, for deposit into the State General Fund.
§ 83-39-31 Fee for Victims of Domestic Violence Fund:
(7) In addition to the fees imposed by this section, there shall be an assessment of Ten
Dollars ($10.00) imposed upon every criminal defendant charged with a criminal offense
who posts a cash bail bond, a surety bail bond, a property bail bond or a guaranteed arrest
bond to be collected by the clerk of the court and deposited in the Victims of Domestic
Violence Fund created by Section 93-21-117, unless subsection (4) applies.
Mississippi Attorney General’s opinions:
Collection fee under § 83-39-31.
“[B]ased upon the facts set forth in your letter there is no conviction and therefore the 2%
/ $20 fee shall not be imposed and therefore not collected.” Op. Atty. Gen. Henderson,
September 30, 2005.
CHAPTER 8
CRIMINAL CASES
800 SCOPE AND APPLICABILITY OF RULES
Scope
Purpose and construction
801 COMPUTATION AND ENLARGEMENT OF TIME
802 JURISDICTION
Violations of municipal ordinances and state misdemeanor laws
Any case remanded to it by a circuit court grand jury
803 TRANSFERS
To justice court
From justice court
804 COURT TERMS
805 COURTROOM DECORUM AND SECURITY
Orderly administration of justice
When a judge may carry a concealed weapon
806 USE OF CAMERAS, RECORDING AND BROADCASTING EQUIPMENT
When cameras, recording or broadcasting equipment are permitted
Recordation of proceedings where official court reporter not provided
Duties of court reporters
807 CONDUCT OF COUNSEL AND PARTIES
Consequences of defendant’s disruptive behavior
Presence of witnesses and spectators
808 COMMENCING A CRIMINAL PROSECUTION
Commencement of criminal proceedings
Duty of judge upon making of a charging affidavit
Filing a sworn complaint
Right of accused to copy of the affidavit
809 JUDGE AS CONSERVATOR OF THE PEACE
Municipal judges as conservators of the peace
Taking recognizance or bond
If recognizance or bond is returnable to the circuit court
810 INITIAL APPEARANCES
Right to a probable cause hearing
When the municipal judge may conduct initial appearances
Procedure upon arrest
Initial appearance
When the Mississippi Rules of Evidence do not apply
If failing to provide a prompt initial appearance
Interactive audiovisual devices
Closed-circuit television or web cam
811 PRELIMINARY HEARINGS
When the municipal judge may conduct preliminary hearings
Right to a preliminary hearing; waiver; postponement
Proceedings at preliminary hearing
When the Mississippi Rules of Evidence do not apply
812 REPRESENTATION BY COUNSEL
Rights of the accused
Right to counsel; waiver
Procedure for appointment of counsel for indigent defendants; appearance;
withdrawal
Determination of indigency; appointment of counsel; compensation
Appointment of public defender
Appointing counsel for indigent persons
Compensation
813 PLEADINGS AND MOTIONS SUBMITTED TO THE COURT
Information on each pleading and motion
Size of paper
Service and filing of pleadings and certificate of service
Form, content, rights of reply
Hearing; oral argument
Waiver of formal requirements
Service and filing
Entry of order and duty of clerk
814 PLEAS
Proceedings at arraignment
Entry of plea of guilty or nolo contendere
Plea bargaining
Accepting a guilty plea
Nolo contendere plea
815 DISCLOSURE AND DISCOVERY
Scope
Notice of defenses
Depositions
General standards
Excision and protective orders
Continuing duty to disclose
Failure to disclose; sanctions
Discovery in municipal and justice courts
Access to information on DUI chemical test
A prosecutor may not suppress evidence favorable to the accused
816 INTERPRETERS
817 PRO SE DEFENDANTS
818 SUBPOENAS
Subpoenas
Subpoena duces tecum
Protections as to subpoenas
819 CONTINUANCES
Reasonable opportunity to prepare for trial
Trial setting
To secure an absent witness or documents
Additional time to prepare for trial
To retain new counsel
820 PROSECUTOR’S MOTION FOR DISMISSAL OR REDUCTION OF CHARGES
Compromise of petty misdemeanors
Reduction of charges under Implied Consent Law prohibited
821 TRIAL PROCEDURES
Motion deadline; hearings and rulings on motions
Effects of rulings
Right of defendant to be present; waiver
Mental competency; definition
Motions for directed verdict
Burden of proof
Excluding of witnesses
Proceedings at trial
Time and form of verdict
Motion for a new trial
Motion to vacate judgment
Denial by operation of law
Clerical and technical errors
822 TRIAL IN ABSENTIA
823 DOUBLE JEOPARDY
Fifth Amendment
Double jeopardy protections
When jeopardy attaches
“Same elements” test
Separate acts constituting separate crimes
Applicability to DUI and traffic offenses
Applicability to mistrials
Civil sanctions ordinarily not applicable
824 MISTRIAL
825 LAWS PERTAINING TO CHILDREN
When an arrest warrant for a child is prohibited
Detention restrictions
Removal by the youth court
When youth court may stay execution of sentence
826 VICTIMS’ RIGHTS
800 SCOPE AND APPLICABILITY OF RULES
MRCrP 1.1. Scope:
These are the Mississippi Rules of Criminal Procedure and shall govern the procedure in
all criminal proceedings, from arrest through post-trial motions, in all trial courts within
the State of Mississippi, except as otherwise provided in these Rules, They may be cited
as MRCrP; e.g., MRCrP 1.
See also JC Rule 1.01 (“These rules govern procedures in justice court and, except where
specified, apply to all actions, civil and criminal.”); JC Rule 3.01 (“Rules of criminal
procedure in justice court are governed by the Mississippi Rules of Criminal Procedure
(MRCrP). All rules designated as criminal rules are applicable only in criminal cases.
General rules are also applicable in criminal cases.”).
MRCrP 1.2. Purpose and construction:
These Rules are to be interpreted to provide for the just and speedy determination of
criminal proceedings, to secure simplicity in procedure and fairness in administration, to
eliminate unjustifiable delay and expense, and to protect the rights of individuals while
protecting the public.
801 COMPUTATION AND ENLARGEMENT OF TIME
MRCrP 1.3
(a) Computation. In computing any period of time prescribed or allowed by these Rules,
by order of court, or by any applicable statute, the day of the act, event, or default from
which the designated period of time begins to ran shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal
holiday, as defined by statute, or any other day when the court clerk's office is in fact
closed, whether with or without legal authority, in which event the period runs until the
end of the next day which is not a Saturday, a Sunday, a legal holiday, or any other day
when the court clerk's office is in fact closed, In the event any legal holiday falls on a
Sunday, the next day shall be a legal holiday. When the period of time prescribed or
allowed is less than seven (7) days, intermediate Saturdays, Sundays, and legal holidays
shall be excluded in the computation.
(b) Enlargement. When by these Rules or by order of court an act is required or allowed
to be done at or within a specified time, the court may at any time:
(1) with or without motion, and for cause shown, order the period enlarged if request
therefor is made before the expiration of the period originally prescribed or as extended
by a previous order; or
(2) upon motion made after the expiration of the specified period, permit the act to be
done where failure to act was the result of excusable neglect or good cause shown.
But a court may not, except as provided elsewhere in these Rules, extend the time for
making a motion for directed verdict, a motion for new trial, a motion to vacate judgment,
or for taking an appeal.
(c) Unaffected by Expiration of Term. The doing of any act or the taking of any action
permitted by these Rules is not affected or limited by the existence or expiration of a term
of court. However, a criminal sentence cannot be modified, altered, or vacated after the
end of the term of court in which the defendant was sentenced, except as provided by law.
(d) Motions Regarding Computation and Enlargement of Time. A written motion, other
than one which may be heard ex parte, and notice of the hearing thereof, shall be served
not later than five (5) days before the time fixed for the hearing, unless a different period
is fixed by these Rules or by order of the court. Such an order may, for cause shown, be
made on ex parte application. Service shall be accomplished in accordance with Rule 1.7.
(e) Additional Time After Service by Mail. Whenever a party has the right or is required
to do some act or take some action within a prescribed period after the service of a notice
or other paper and the notice or paper is served by mail, three (3) days shall be added to
the prescribed period.
802 JURISDICTION
Violations of municipal ordinances and state misdemeanor laws:
§ 21-23-7(1)
(1) . . . The municipal judge shall have the jurisdiction to hear and determine, without a
jury and without a record of the testimony, all cases charging violations of the municipal
ordinances and state misdemeanor laws made offenses against the municipality and to
punish offenders therefor as may be prescribed by law.
§ 21-13-19
All offenses under the penal laws of this state which are misdemeanors, together with the
penalty provided for violation thereof, are hereby made, without further action of the
municipal authorities, criminal offenses against the municipality in whose corporate
limits the offenses may have been committed to the same effect as though such offenses
were made offenses against the municipality by separate ordinance in each case.
However, for such misdemeanor, any penalty of incarceration is hereby limited to no
more than six (6) months in jail, and any fine is hereby limited to a maximum of one
thousand dollars ($1,000.00) for each such violation in any case tried without a jury.
Judgments for fines, costs, forfeitures and other penalties imposed by municipal courts
may be enrolled by filing a certified copy of the record with the clerk of any circuit court
and execution may be had thereon as provided by law for other judgments.
See also Balwin v. New York, 399 U.S. 66, 69 (1970) (“No offense can be deemed
‘petty’ for purposes of the right to trial where imprisonment for more than six months is
authorized.”); Ludwig v. Massachusetts, 618, 625 (1976) (“[I]t is indisputable that the
Massachusetts two-tier system does afford an accused charged with a serious offense the
absolute right to have his guilt determined by a jury composed and operating in
accordance with the Constitution.”).
Mississippi Attorney General’s opinions:
Jurisdictional limitations.
“Municipal courts are limited to criminal matters with the exception of civil domestic
abuse (Section 21-23-7) and some evictions as set forth in Section 89-7-27.” Op. Atty.
Gen. Lawrence, October 1, 2010.
Defendant not entitled to jury trial in municipal court.
“Based on 21-23-7, in Municipal court, a defendant is not entitled to a jury trial.” Op.
Atty. Gen. Haley, July 30, 2010.
Maximum penalties for case prosecuted in municipal court.
“The penalty for a case prosecuted in municipal court is limited to six months
incarceration and/or $1,000 fine pursuant to Section 21-13-19.” Op. Atty. Gen. Boutwell,
March 16, 2007.
State officers must enforce state misdemeanor laws in justice court.
“[A] highway patrolman, sheriff, or constable has no jurisdiction to enforce city
ordinances, and must enforce the state misdemeanor laws in justice court even if the
offense occurred within the city limits.” Op. Atty. Gen. Ringer, September 24, 2004.
Maximum jail time is limited to six months.
“Section 21-13-19 limits the penalty that may be imposed by a municipal court . . . [T]he
maximum time a municipal judge may sentence a defendant for a misdemeanor violation
would be six (6) months in jail even if the statute provided for a possible longer
sentence.” Op. Atty. Gen. Shirley, August 10, 2001.
Filing criminal charges that occur within the municipality.
“While it is true that offenses that occur within the municipality may be tried in justice
court, we have previously opined in MS AG Op., Gore (August 15, 1994) it is violative of
the legislative intent of Mississippi Code Annotated Section 21-23-7 for municipal
officials to routinely file criminal charges in the justice court for offenses that occur
within the municipality.” Op. Atty. Gen. Griffith, December 8, 2000.
§ 21-23-7 Any case remanded to it by a circuit court grand jury:
(1) . . . The municipal court shall have jurisdiction of any case remanded to it by a circuit
court grand jury.
See also Miss. Code Ann. § 99-33-1 (Remand by circuit court grand jury) and Miss. Code
Ann. § 99-33-13 (Remand of cases to be tried as misdemeanors).
Mississippi Attorney General’s opinions:
Grand jury has no authority to remand an uncharged matter.
“There is no authority for the grand jury to remand an uncharged matter for trial in justice
court as a misdemeanor. However, the grand jury could return a no bill, and the
prosecuting attorney or other interested party could have a misdemeanor affidavit filed in
justice court and proceed with trial therein.” Op. Atty. Gen. Martin, January 15, 2015.
Procedures upon remand from grand jury.
“[Section 99-33-13] provides no guidance as to the procedures to be utilized upon
remand. However, it is the opinion of this office that the Grand Jury should forward a
written notice of Remand to the justice court specifying the misdemeanor charge for
which the defendant is to be tried. The notice of remand should be signed by the
foreperson of the grand jury and approved by the district attorney. Upon receipt of the
notice of remand the justice court should forward, by certified mail, or by service by a law
enforcement officer, a copy of the notice of remand from the grand jury together with an
order signed by the judge containing notice of the hearing date on the charge.” Op. Atty.
Gen. Erby, November 21, 2008.
803 TRANSFERS
§ 21-23-7 To justice court:
(12) A municipal court judge shall not dismiss a criminal case but may transfer the case
to the justice court of the county if the municipal court judge is prohibited from presiding
over the case by the Canons of Judicial Conduct and provided that venue and jurisdiction
are proper in the justice court. Upon transfer of any such case, the municipal court judge
shall give the municipal court clerk a written order to transmit the affidavit or complaint
and all other records and evidence in the court's possession to the justice court by certified
mail or to instruct the arresting officer to deliver such documents and records to the
justice court. There shall be no court costs charged for the transfer of the case to the
justice court.
Mississippi Attorney General’s opinions:
Transfer of felony cases to justice court.
“Section 21-23-7(12) of the Mississippi Code provides for the transfer of criminal cases
from municipal court to justice court. It does not distinguish between misdemeanor and
felony cases. Therefore, a municipal judge can transfer felony cases to justice court. . . . In
justice court the defendant would be entitled to an initial appearance and a preliminary
hearing under the same guidelines as if the case originated in justice court.” Op. Atty.
Gen. Mullen, June 10, 2005.
Justice court may not refuse proper transfer.
“[A] justice court may not refuse the transfer of a case from municipal court as
contemplated by Section 21-23-7(12) unless proper venue and jurisdiction do not exist.
Any such case that is transferred from municipal court to justice court should be treated
as if the case were originally filed in justice court.” Op. Atty. Gen. Via, May 18, 2001.
When municipal court judge may transfer a case to justice court.
“[O]nce a case is filed in municipal court, a municipal court judge may not transfer a case
from municipal court to justice court unless the Canons of Judicial Conduct prohibit him
from presiding over the case or there is some other jurisdictional problem. If the case is
transferred as a result of the municipal court judge recusing himself, that same judge may
not hear the case while serving as justice court judge.” Op. Atty. Gen. Griffith, December
8, 2000.
Justice court has total jurisdiction of transferred case.
“[O]nce a case has been transferred from municipal court to justice court, the justice court
has total jurisdiction over the case and it is the responsibility of the county prosecutor to
prosecute the case. . . . The justice court clerk is responsible for issuing all process in the
case and collecting any fine that may be imposed. The county would be entitled to any
fine money collected from such a case.” Op. Atty. Gen. Prewitt, May 1, 2000.
§ 99-33-17 From justice court:
A justice court judge shall not dismiss a criminal case but may transfer the case to
a municipal court within the county if the justice court judge is prohibited from
presiding over the case by the Canons of Judicial Conduct and provided that
venue and jurisdiction is proper in the municipal court. Upon transfer of any such
case, the justice court judge shall give the justice court clerk a written order to
transmit the affidavit or complaint and all other records and evidence in the court's
possession to the municipal court by certified mail or to instruct the arresting
officer to deliver such documents and records to the municipal court. There shall
be no court costs charged for the transfer of the case to the municipal court.
804 COURT TERMS
§ 21-23-7 When the municipal judge may hold court:
(1) The municipal judge shall hold court in a public building designated by the governing
authorities of the municipality, or may hold court in an adult detention center as provided
under this subsection, and may hold court every day except Sundays and legal holidays if
the business of the municipality so requires; provided, however, the municipal judge may
hold court outside the boundaries of the municipality but not more than within a
sixty-mile radius of the municipality to handle preliminary matters and criminal matters
such as initial appearances and felony preliminary hearings. The municipal judge may
hold court outside the boundaries of the municipality but not more than within a one-mile
radius of the municipality for any purpose; however, a municipal judge may hold court
outside the boundaries of the municipality more than within a one-mile radius of the
municipality when accepting a plea of a defendant at an adult detention center within the
county.
Mississippi Attorney General’s opinions:
Municipal judge to decide when court is to be held.
“The authority to determine when municipal court will be held rests with the municipal
judge. Op. Atty. Gen. Parker, February 29, 2008.
No statutory requirement that municipal court meet every month.
“[W]e find no requirement that a municipal court meet every month. As such, a municipal
court may hold a session once every two months rather than once every month as the need
arises.” Op. Atty. Gen. Tullos, March 26, 2004.
805 COURTROOM DECORUM AND SECURITY
Orderly administration of justice:
To properly administer justice it is essential that the court is held with dignity, order and
decorum. See Code of Judicial Conduct. Hosford v. State, 525 So.2d 789, 798 (Miss.
1988) (“[I]f the Legislative branch fails in its constitutional mandate to furnish the
absolute essentials required for the operation of an independent and effective court, then
no court affected thereby should fail to act. It is the absolute duty of a court in such latter
circumstances to act, and act promptly.”).
See also Miss. Code Ann. § 21-23-13 (“The marshal or chief of police of the municipality
shall be the executive officer of the municipal court. He shall attend the sittings of the
court in person or by duly appointed deputies, and he shall be under the direction of the
municipal judge. Any police officer of the municipality may be an ex officio deputy
marshal. The marshal or chief of police shall execute all process by himself or deputy and
do whatever else may be required of him by the court in the line of his duty.”).
Mississippi Attorney General’s opinions:
Ensuring order and decorum in the courtroom.
“A municipality is statutorily obligated to provide police protection to all of its citizens,
pursuant to Mississippi Code Annotated Section 21-21-3. Certainly, it may establish
policies and procedures to ensure that the public is adequately protected, which would
include the public presence in the municipal courtroom. However, ultimate authority to
ensure order and decorum within the municipal court room itself rests with the municipal
court.” Op. Atty. Gen. Warren, September 2, 2011.
§ 97-37–7 When a judge may carry a concealed weapon:
(2) It shall not be a violation of this or any other statute for pistols, firearms or
other suitable and appropriate weapons to be carried . . . by judges of the . . .
municipal . . . courts. Before any person shall be authorized under this subsection
to carry a weapon, he shall complete a weapons training course approved by the
Board of Law Enforcement Officer Standards and Training.
Mississippi Attorney General’s opinions:
When a municipal court judge is authorized to carry firearm.
“[A] municipal court judge is authorized to carry any pistol, firearm or other suitable and
appropriate weapon upon completing the training course approved by the Board of Law
Enforcement Standards and Training.” Op. Atty. Gen. Henry, June 3, 2005.
806 USE OF CAMERAS, RECORDING AND BROADCASTING EQUIPMENT
Canon 3 When cameras, recording or broadcasting equipment are permitted:
(B)(12) Except as may be authorized by rule or order of the Supreme Court, a judge
should prohibit broadcasting, televising, recording, or taking photographs in the
courtroom and areas immediately adjacent thereto during sessions of court or recesses
between sessions, except that a judge may authorize:
(a) the use of electronic or photographic means for the presentation of evidence, for the
perpetuation of a record, or for other purposes of judicial administration;
(b) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or
naturalization proceedings;
(c) the photographic or electronic recording and reproduction of appropriate court
proceedings under the following conditions:
(i) the means of recording will not distract participants or impair the dignity of the
proceedings;
(ii) the parties have consented, and the consent to being depicted or recorded has been
obtained from each witness appearing in the recording and reproduction;
(iii) the reproduction will not be exhibited until after the proceeding has been concluded
and all direct appeals have been exhausted; and
(iv) the reproduction will be exhibited only for instructional purposes in educational
institutions.
Mississippi Attorney General’s opinions:
Use of cameras under Canon 3B(12).
“[Canon 3B(12)] prohibits the use of cameras in all courtrooms except under limited
circumstances.” Op. Atty. Gen. Robinson, January 3, 2003.
MRCrP 1.10 Recordation of proceedings where official court reporter not
provided:
Any attorney of record or pro se litigant in a court which does not provide an official
court reporter may record or have recorded any court proceeding by audio-recording
device or stenographically. Any expenses incident thereto shall be borne by the party or
parties.
MRCrP Rule 20 Duties of court reporters:
(b) Other Cases.
. . .
(2) Municipal and justice court. In criminal proceedings in municipal and justice court,
either party may engage the services of a court reporter to take down the proceedings, at
the expense of the requesting party.
807 CONDUCT OF COUNSEL AND PARTIES
MRCrP 10.2 Consequences of defendant’s disruptive behavior:
(a) Disruptive Conduct. A defendant who engages in disruptive or disorderly conduct may
be removed and shall forfeit the right to be present at that proceeding.
(b) Restoration of Right. The court shall grant any defendant so removed reasonable
opportunities to return to the court upon the defendant's personal assurance of good
behavior and/or such other conditions as the court may require. Any subsequent
disruptive conduct on the part of the defendant may result in removal.
(c) Continuing Duty of Court. If feasible, the court shall employ reasonable means to
enable a defendant removed from a proceeding under this Rule to hear, observe or be
informed of the further course of the proceeding, and to consult with counsel at
reasonable intervals.
MRCrP 10.3 Presence of witnesses and spectators:
(a) Witnesses. Pursuant to Rule 615 of the Mississippi Rules of Evidence, the court may,
and at the request of either party shall, exclude prospective witnesses from the courtroom.
The court also shall direct witnesses not to communicate with each other concerning the
case until all have testified. If the court finds that a party's claim that a person is a
prospective witness is not made in good faith, the person may be allowed to remain in the
courtroom. Once a witness has testified on direct examination and has been made
available to all parties for cross-examination and excused by the court, the witness shall
be allowed to remain in the courtroom unless the court finds, upon application of a party
or witness, that the presence of the witness would be prejudicial to a fair trial. This Rule
does not authorize excluding a person whose presence a party shows to be essential to
presenting the party's claim or defense.
(b) Spectators.
(1) Proceedings to be Open. All proceedings shall be open to the public unless the court
finds, upon application of the defendant, that an open proceeding presents a danger to the
defendant's right to a fair trial by an impartial jury.
(2) Exception for Certain Crimes. Pursuant to Article 3, Section 26 of the Mississippi
Constitution, the court may exclude from the courtroom all persons except those
necessary in the conduct of the trial.
(3) Victims. Pursuant to Article 3, Section 26A of the Mississippi Constitution, the
alleged victim has the right to be present throughout ail criminal proceedings when
authorized by law. If the alleged victim is a witness, then Rule 10.3(a) controls.
(c) Removal. Any or all individuals may be removed from the courtroom for engaging in
disorderly, disruptive, or contemptuous conduct, or when their conduct or presence
constitutes a threat or menace to the court, parties, attorneys, witnesses, jurors, officials,
members of the public, or a fair trial.
(d) Electronic Coverage of Proceedings. Electronic coverage of judicial proceedings shall
be governed by the Mississippi Rules for Electronic and Photographic Coverage of
Judicial Proceedings.
808 COMMENCING A CRIMINAL PROSECUTION
MRCrP 2.1 Commencement of criminal proceedings:
(a) Commencement. All criminal proceedings shall be commenced either by charging
affidavit, indictment, or bill of information.
(b) Docketing the Case.
(1) Charging affidavit. Anyone bringing a criminal charge in municipal court or justice
court shall lodge a charging affidavit with the judge or clerk of the court. The clerk of the
court shall record all charging affidavits on the docket.
See also Murshid v. State, 2021 WL 1540595 (Miss. Ct. App. 2021) (“A prosecution may
be commenced ... by the issuance of a warrant, or by binding over or recognizing the
offender to compel his appearance to answer the offense, as well as by indictment or
affidavit.” Miss. Code Ann. § 99-1-7 (Rev. 2020); see also MRCrP 2.1(a) (“All criminal
proceedings shall be commenced either by charging affidavit, indictment, or bill of
information.”).
MRCrP 2.2 Duty of judge upon making of a charging affidavit:
(a) Probable Cause Determination. If it appears from the charging affidavit and the
evidence submitted that there is probable cause to believe that the offense complained of
has been committed and that there is probable cause to believe that the defendant
committed it, the judge shall proceed under Rule 3.1. Before ruling on a request for a
warrant, the judge may examine under oath the affiant and any witnesses the affiant may
produce.
(b) Evidence. The finding of probable cause shall be based upon evidence, which may be
hearsay in whole or in part provided there is a basis for believing the source of the
hearsay to be credible and for believing that there is a factual basis for the information
furnished.
§ 21-23-7 Filing a sworn complaint:
(1) . . . Except as otherwise provided by law, criminal proceedings shall be brought by
sworn complaint filed in the municipal court. Such complaint shall state the essential
elements of the offense charged and the statute or ordinance relied upon. Such complaint
shall not be required to conclude with a general averment that the offense is against the
peace and dignity of the state or in violation of the ordinances of the municipality.
See also Miss. Code Ann. § 99-1-5 (Statute of limitations) and § 99-1-7 (Commencement
of prosecution); Sartain v. City of Water Valley, 528 So. 2d 1125, 1126 (Miss. 1988)
(“Section 169 as a matter of common sense does not apply and should not apply literally
to prosecutions for violations of municipal ordinances in municipal courts.”); Jordan v.
City of West Point, 75 So. 2d 465, 465 (Miss. 1954) (“The affidavit does not purport to
have been signed until October 16, the day following his conviction and his sentence to
pay a fine of $100 and costs. Therefore the mayor's court did not have jurisdiction to try
and convict the defendant and to render the judgment complained of.”).
Mississippi Attorney General’s opinions:
Tolling the statute of limitations.
“The ticket is an affidavit having been sworn to prior to filing. . . . Thus, [under Section
99-1-7,] the filing of the affidavit tolls the statute.” Op. Atty. Gen. Hogsett, February 29,
2008.
Form of ticket or citation.
“[Under Section 21-23-7 (1)] the ticket/citation must be in the form of an affidavit (as is a
uniform traffic citation) and must state the essential elements of the offense charged and
include the ordinance or statute relied upon.” Op. Atty. Gen. Clark, October 27, 2006.
Words “against the peace and dignity of the State” not required.
“[A]n affidavit in a misdemeanor case is not subject to the constitutional requirement that
the words “against the peace and dignity of the State” be included.” Op. Atty. Gen.
Atkinson, July 16, 2004.
Commencing a criminal trial against a teacher or law enforcement officer.
Mississippi Code Annotated Section 99-3-28 requires a probable cause determination to
be made by a circuit judge prior to a municipal or justice court commencing a criminal
trial against a teacher or law enforcement officer for an offense committed within the
performance of official duties. Op. Atty. Gen. Tucker, August 29, 2003.
Uniform Traffic Ticket statute.
[A]lthough Section 21-23-7 requires a complaint filed in municipal court to state the
statute or ordinance relied upon, the Uniform Traffic Ticket statute constitutes an
exception thereto for traffic violations. Op. Atty. Gen. Gilfoy, October 25, 2002.
Citizen may file complaint.
“[A] citizen may still file a criminal affidavit with the court even if the police elect not to
pursue the complaint. It is then the municipal court judge's responsibility to determine if a
warrant should be issued. The police may furnish any information concerning the
complaint to the judge to assist the court in its decision.” Op. Atty. Gen. Gager,
November 20, 2000.
§ 99-15-28 Right of accused to copy of the affidavit:
Any person alleged to have committed a criminal offense in violation of a state
law, or ordinance of any political subdivision, which upon conviction carries a
sentence of any length of time or fine of any amount, shall be entitled, upon
request made by such person or their counsel, to receive a copy of the affidavit . . .
at any time after such affidavit is filed . . . . No charge or fee shall be imposed for
any copy of an affidavit . . . as herein provided.
Mississippi Attorney General’s opinions:
Tolling the statute of limitations.
“The ticket is an affidavit having been sworn to prior to filing. . . . Thus, [under Section
99-1-7,] the filing of the affidavit tolls the statute.” Op. Atty. Gen. Hogsett, February 29,
2008.
Commencing a criminal trial against a teacher or law enforcement officer.
Mississippi Code Annotated Section 99-3-28 requires a probable cause determination to
be made by a circuit judge prior to a municipal or justice court commencing a criminal
trial against a teacher or law enforcement officer for an offense committed within the
performance of official duties. Op. Atty. Gen. Tucker, August 29, 2003.
809 JUDGE AS CONSERVATOR OF THE PEACE
§ 21-23-7 Municipal judges as conservators of the peace:
(1) The municipal judge is a conservator of the peace within his municipality. He may
conduct preliminary hearings in all violations of the criminal laws of this state occurring
within the municipality, and any person arrested for a violation of law within the
municipality may be brought before him for initial appearance.
§ 99-5-11 Taking recognizance or bond:
(1) All justice court judges and all other conservators of the peace are authorized,
whenever a person is brought before them charged with any offense not capital for which
bail is allowed by law, to take the recognizance or bond of the person, with sufficient
sureties, in such penalty as the justice court judge or conservator of the peace may
require, for his appearance before the justice court judge or conservator of the peace for
an examination of his case at some future day. And if the person thus recognized or thus
giving bond fails to appear at the appointed time, it shall be the duty of the justice court
judge or conservator of the peace to return the recognizance or bond, with his certificate
of default, to the court having jurisdiction of the case, and a recovery may be had therein
by scire facias, as in other cases of forfeiture. The justice court judge or other conservator
of the peace shall also issue an alias warrant for the defaulter.
(2) In circumstances involving an offense against any of the following: (a) a current or
former spouse of the accused or child of that person; (b) a person living as a spouse or
who formerly lived as a spouse with the accused or a child of that person; (c) a parent,
grandparent, child, grandchild or someone similarly situated to the accused; (d) a person
who has a current or former dating relationship with the accused; or (e) a person with
whom the accused has had a biological or legally adopted child, the justice court judge or
other conservator of the peace shall check, or cause to be made a check, of the status of
the person for whom recognizance or bond is taken before ordering bail in the Mississippi
Protective Order Registry authorized under Section 93–21–25, and the existence of a
domestic abuse protection order against the accused shall be considered when
determining appropriate bail.
(3) After the court considers the provisions of subsection (2) of this section, a
misdemeanant may be released on his or her own recognizance unless:
(a) The misdemeanant:
(i) Is on probation or parole;
(ii) Has other unresolved charges pending; or
(iii) Has a history of nonappearance; or
(b) The court finds that:
(i) The release of the misdemeanant would constitute a special danger to any other person
or to the community; or
(ii) Release of the misdemeanant on his or her own recognizance is highly unlikely to
assure the appearance of the misdemeanant as required.
§ 99-15-3 If recognizance or bond is returnable to the circuit court:
Any conservator of the peace has power to take all manner of bonds and
recognizances from persons charged on affidavit with crimes and offenses, for
their appearance in the circuit court to answer thereto, as well as for crimes and
offenses committed in their presence. If any person fail to give bond or enter into
recognizance, with the sureties prescribed, when required to do so by a
conservator of the peace, he shall be committed to the county jail, there to remain
until he comply or be otherwise discharged by due course of law. Every bond or
recognizance so taken shall be returned to the circuit court before its next term. If
any person so bound fail to appear in the circuit court, his bond or recognizance
shall be adjudged forfeited, and otherwise proceeded with as provided by law.
810 INITIAL APPEARANCES
Right to a probable cause hearing:
“The Fourth Amendment requires a judicial determination of probable cause as a
prerequisite to extended restraint of liberty following arrest.” Gerstein v. Pugh, 420 U.S.
103, 114 (1975). Systemic challenges will not lie if the procedures are “fair and reliable”
and are conducted “either before or promptly after arrest.” See Gerstein at 125.
“Promptly” is an appearance without “unreasonable delay.” See County of Riverside v.
McLaughlin, 500 U.S. 44, 56 (1991). Ordinarily this requirement is satisfied if the
hearing takes place within 48 hours of arrest. See McLaughlin at 56. But there are
exceptions. Delays merely for reasons of gathering additional evidence to justify an
arrest, ill will against the arrested individual, or delay for delay’s sake are unreasonable.
See McLaughlin at 56.
§ 21-23-7 When the municipal judge may conduct initial appearances:
(1) . . . The municipal judge is a conservator of the peace within his municipality. He may
conduct preliminary hearings in all violations of the criminal laws of this state occurring
within the municipality, and any person arrested for a violation of law within the
municipality may be brought before him for initial appearance.
Mississippi Attorney General’s opinions:
When municipal court is to conduct the initial appearance.
Criminal charges may be filed in the justice court even if the offense occurred within the
boundaries of a municipality. The justice court has jurisdiction throughout the county,
even for offenses that occur within a municipality located in that county. However, if the
charges are filed in the municipal court, the municipal court should conduct the initial
appearance. Op. Atty. Gen. Bates, July 18, 2003.
MRCrP 5.1 Procedure upon arrest:
(a) Telephone Call. Any person under arrest shall be afforded a reasonable opportunity to
make a telephone call to, or otherwise make effective communication with, any person
the accused may choose.
(b) On Arrest without a Warrant. A person arrested without a warrant:
(1) may, unless prohibited by law, be released upon the defendant's personal recognizance
after being notified in writing to appear at a specified time and place; or
(2) shall be released upon execution of an appearance bond set according to Rule 8,
unless the charge upon which the person was arrested is not a bailable offense, and
directed to appear at a specified time and place; or
(3) if not released pursuant to subsections (b)(1) or (b)(2), the accused shall be taken
without unnecessary delay, and in no event later than forty-eight (48) hours after arrest,
before a judge for an initial appearance. If the person arrested is not taken before a judge
as so required then, unless the offense for which the person was arrested is not a bailable
offense, the person shall be released upon execution of an appearance bond in specified in
Rule 8, and shall be directed to appear at a specified time and place.
In the event the defendant is released on the minimum amount provided in the bail
schedule, the prosecuting attorney may file a motion with the court to reconsider the bond
amount and the conditions of release, and the procedures thereafter shall be in accordance
with Rule 8.
(c) On Arrest with a Warrant.
(1) If provision for bail or personal recognizance has been made by the judge issuing the
arrest warrant, a person arrested with a warrant shall be released and directed to appear at
a specified time and place.
(2) If the person arrested cannot meet the conditions of release provided in the warrant, or
if no such conditions are prescribed:
(A) if such person was arrested pursuant to a warrant issued on a charging affidavit, the
accused shall be taken without unnecessary delay, and in no event later than forty-eight
(48) hours after arrest, before a judge for an initial appearance. If the person arrested has
not been taken before a judge as required herein, unless the charge upon which the person
was arrested is not a bailable offense, such person shall be released upon execution of an
appearance bond in the amount of the minimum bail specified in Rule 8, and shall be
notified in writing to appear at a specified time and place; or
(B) if such person was arrested pursuant to a capias issued upon an indictment, the
accused shall be taken without unnecessary delay before a judge, who shall proceed as
provided in Rule 8.
(3) The defendant shall be given a copy of the charging document.
See also ODonnell v. Harris Cty., 892 F.3d 147, 160 (5th Cir. 2018) (“We conclude that
the federal due process right entitles detainees to a hearing within 48 hours.”); Swinney v.
State, 829 So. 2d 1225, 1230-31 (Miss. 2002) (“To satisfy the dictates of . . . prevailing
case law, arrested persons must be afforded an initial appearance both (1) within 48
hours, and (2) without unnecessary delay. We have defined ‘without unnecessary delay’
to mean ‘as soon as custody, booking, administrative and security needs have been met.
Once these needs have been met, there is but one possible excuse for delay: lack of
access to a judge.’”). The 48 hour time period begins when the defendant is under the
control of the arresting state officers. See Jones v. State, 841 So. 2d 115, 133 (Miss.
2003) (“The practical reality of waiting for Jones to waive extradition and then
transporting him back to Mississippi naturally caused a delay in providing an initial
appearance. The 48 hour period should have begun at the point when Jones was under the
control of the [Washington County Sheriff’s Office].”).
MRCrP 5.2 Initial appearance:
(a) Generally. Every person in custody and not under indictment shall be taken, without
unnecessary delay and in accordance with Rule 5.1, before a judge for an initial
appearance. At the defendant's initial appearance, the judge shall:
(1) ascertain the defendant's true name, age, and address, and amend the formal charge if
necessary to reflect this information, instructing the defendant to notify the court
promptly of any change of address;
(2) inform the defendant of the charges and provide the defendant with, a copy of the
charging affidavit;
(3) if the arrest has been made without a warrant, determine whether there was probable
cause for the arrest and note the probable cause determination for the record. If there was
no probable cause for the warrantless arrest, the defendant shall be released;
(4) if the defendant is unrepresented, advise of the right to assistance of an attorney, and
that if the defendant is unable to afford an attorney, an attorney will be appointed as
required by law. If the indigent defendant is unrepresented and desires representation,
counsel shall be appointed pursuant to Rule 7.2, Rule 7.3 and local rule promulgated
pursuant to Rule 1.9; and
(5) advise the defendant of:
(A) the right to remain silent and that any statements made may be used against the
defendant;
(B) the right to communicate with an attorney, family or friends, and that reasonable
means will be provided to enable the defendant to do so; and
(C) the conditions, if any, under which the defendant may obtain release.
(b) Felony Cases. When a defendant is charged with commission of a felony, the judge
shall also:
(1) inform, the defendant of the right to a preliminary hearing and the procedure by which
that right may be exercised; and
(2) if requested, set the time for a preliminary hearing in accordance with Rule 6.1.
(c) Initial Appearance Not Required. In all cases where the defendant is released from
custody, or has been indicted by a grand jury, the defendant shall not be entitled to an
initial appearance.
See also Anderson v. State, 577 So. 2d 390, 391 (Miss. 1991) (“[A] valid guilty plea
operates as a waiver of all non-jurisdictional rights or defects which are incident to
trial.”); Hall v. State, 455 So. 2d 1303, 1304 (Miss. 1984) (“Probable cause exists when
the facts and circumstances within an officer's knowledge, or of which he has reasonable
trustworthy information, are sufficient in themselves to justify a man of average caution
in belief that a crime has been committed and that a particular individual has committed
it.”).
MRE 1101 When the Mississippi Rules of Evidence do not apply:
(a) To Courts and Proceedings. These rules apply to all cases and proceedings in
Mississippi courts, except as provided in subdivision (b).
(b) Exceptions. These rules--except for those on privilege--do not apply to the following:
. . .
(4) these miscellaneous proceedings:
C extradition or rendition;
C issuing an arrest warrant, criminal summons, or search warrant;
C probable cause hearings in criminal cases and youth court cases;
C sentencing;
C disposition hearings;
C granting or revoking probation; and
C considering whether to release on bail or otherwise.
If failing to provide a prompt initial appearance:
Failure to provide a prompt initial appearance does not automatically require a reversal.
Instead, it must be shown that the incriminating evidence was the product of an
unreasonable delay and prejudiced the merits of the case. See Davis v. State, 743 So. 2d
326, 338 (Miss. 1999) (“An initial appearance might have resulted in less evidence being
gathered, but it would not have resulted in suppression of the evidence against Davis to
the extent where there is any reasonable probability that the verdict would have
changed.”); Thornson v. State, 653 So. 2d 876, 887 (Miss. 1995) (“His confession was
not a product of any delay in taking him before a magistrate, and was therefore
admissible.”).
MRCrP 1.8 Interactive audiovisual devices:
(a) General Provisions. When the appearance of a defendant required in circuit, county,
municipal or justice court, subject to the provisions of this Rule, the appearance may be
made by the use of interactive audiovisual equipment including video conferencing
equipment. Interactive audiovisual equipment shall at a minimum operate so as to enable
the court and all parties to view and converse with each other.
(b) Requirements. In using interactive audiovisual equipment, the following are required:
(1) a full record of the proceedings shall be made as provided in applicable rules;
(2) the court shall determine that the defendant knowingly, intelligently, and voluntarily
agrees to appear at the proceeding by interactive audiovisual means; and
(3) provisions shall be made to allow for confidential communications between the
defendant and counsel before and during the proceeding. Defense counsel shall be present
at the location with the defendant during the proceedings.
(c) Permissible Proceedings. Appearance by interactive audiovisual equipment, including
video conferencing, may be permitted in the discretion of the court at any proceeding
except that this Rule shall not apply to any trial, probation violation hearing, or any felony
plea and/or sentencing.
§ 99-1-23 Closed-circuit television or web cam:
(1) When the physical appearance in person in court is required of any person who is
represented by counsel and held in a place of custody or confinement operated by the
state or any of its political subdivisions, upon waiver of any right such person may have
to be physically present, such personal appearance may be made by means of closed
circuit television or Web cam from the place of custody or confinement, provided that
such television or Web cam facilities provide two-way audio-visual communication
between the court and the place of custody or confinement and that a full record of such
proceedings be made by split-screen imaging and recording of the proceedings in the
courtroom and the place of confinement or custody in addition to such other record as
may be required, in the following proceedings:
(a) Initial appearance before a judge on a criminal complaint;
(b) Waiver of preliminary hearing;
(c) Arraignment on information or indictment where a plea of not guilty is entered;
(d) Arraignment on information or indictment where a plea of guilty is entered;
(e) Any pretrial or post-trial criminal proceeding not allowing the cross-examination of
witnesses;
(f) Sentencing after conviction at trial;
(g) Sentencing after entry of a plea of guilty; and
(h) Any civil proceeding other than trial by jury.
(2) This section shall not prohibit other appearances via closed circuit television or Web
cam upon waiver of any right such person held in custody or confinement might have to
be physically present.
(3) Nothing contained in this section shall be construed as establishing a right for any
person held in custody to appear on television or Web cam or as requiring that a place of
custody shall provide a two-way audio-visual communication system.
(4) The provisions of this section shall apply to all courts.
811 PRELIMINARY HEARINGS
§ 21-23-7 When the municipal judge may conduct preliminary hearings:
(1) . . . The municipal judge is a conservator of the peace within his municipality. He may
conduct preliminary hearings in all violations of the criminal laws of this state occurring
within the municipality, and any person arrested for a violation of law within the
municipality may be brought before him for initial appearance.
Mississippi Attorney General’s opinions:
County prosecutor to handle preliminary hearings.
“[I]t is the duty of the county prosecuting attorney to handle preliminary hearings in
municipal courts.” Op. Atty. Gen. Evans, March 16, 2001.
MRCrP 6.1 Right to a preliminary hearing; waiver; postponement:
(a) Right to a Preliminary Hearing.
(1) Generally. A defendant who has been charged with a felony is entitled to a
preliminary hearing upon request. But a defendant who has been indicted by a grand jury
is not entitled to a preliminary hearing.
(2) When Commenced. The preliminary hearing shall be held within fourteen (14) days
following the demand for preliminary hearing unless:
(A) the charging affidavit has been dismissed;
(B) the hearing is subsequently waived, as provided in section (b);
(C) the hearing is postponed as provided in section (d); or
(D) before commencement of the hearing, an indictment charging the same offense has
been returned by the grand jury.
(b) Waiver. A preliminary hearing, once demanded, may be subsequently waived in open
court or by written waiver, signed by the defendant and defendant's counsel, if any.
(c) Delay.
(1) Release on Recognizance. If a preliminary hearing has not been commenced within
fourteen (14) days as required by subsection (a), unless postponed as provided in
subsection (d), the defendant shall be released on recognizance.
(2) Non-bailable Offenses; Notice to Circuit Court. However, if the defendant is charged
with a non-bailable offense, or if release is prohibited by Article 3, Section 29(2) of the
Mississippi Constitution of 1890, the court, the attorneys, or the accused, if pro se, shall
immediately notify a judge of that circuit of the delay and the reasons therefor. The circuit
judge shall thereupon order the hearing be set for a specified time.
(d) Postponement. Upon motion of any party, or upon the judge's own initiative, the
preliminary hearing may be postponed beyond the time limits specified in subsection (a)
upon a finding that circumstances exist that justify delay and, in that event, the court shall
enter a written order detailing the reasons for the finding, include a date certain for the
postponed hearing, and shall give the parties prompt notice thereof.
MRCrP 6.2 Proceedings at preliminary hearing:
(a) Procedure. At a preliminary hearing the judge shall determine probable cause and the
conditions for release, if any. All parties shall have the right to cross-examine the
witnesses testifying and, subject to the provisions herein, introduce evidence. Only
evidence relevant to these questions shall be adduced.
At the close of the prosecution's case, including cross-examination of prosecution
witnesses by the defendant, the judge shall determine and state for the record or state in
open court whether the prosecution's case establishes probable cause. The defendant may
then make a specific offer of proof, including the names of witnesses who would testify,
or the defendant may produce the evidence offered.
(b) Process. Unless otherwise ordered by the court for good cause shown, process shall
issue to secure the attendance of witnesses requested by the defendant or the prosecuting
attorney.
(c) Hearsay Evidence. The findings by the court shall be based on substantial evidence,
which may be hearsay, in whole or in part, provided there is a basis for believing the
source of the hearsay to be credible and for believing that there is a factual basis for the
information furnished.
(d) Suppression Motions Inapplicable. Objections to evidence on the ground that it was
acquired by unlawful means are not properly made at the preliminary hearing.
(e) Amendment of Charging Affidavit. The charging affidavit may be amended at any
time to conform to the evidence, unless substantial rights of the defendant would be
prejudiced.
(f) Binding Over the Case to the Grand Jury. If, from the evidence, it appears that there is
probable cause to believe that a felony has been committed, and that the defendant
committed it, the judge shall bind the defendant over to await action of the grand jury.
(g) Discharge of the Defendant. If, from the evidence, it appears that there is no probable
cause to believe that a felony 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 presenting the same offense to a grand jury.
See also Mayfield v. State, 612 So. 2d 1120, 1129 (Miss. 1992) (“[T]he fundamental
purpose of a preliminary hearing is to “determine whether there is probable cause to
believe that an offense has been committed and whether the defendant committed it.” . . .
The procedure is designed, for example, to prevent a victim of malicious prosecution
from enduring extended incarceration or the distress of unjust accusations while waiting
for his case to come before a grand jury.”); Stevenson v. State, 244 So. 2d 30, 33 (Miss.
1971) (“The nature and purpose of a preliminary hearing . . . is to determine whether
probable cause exists to have a person held for trial.”).
MRE 1101 When the Mississippi Rules of Evidence do not apply:
(a) To Courts and Proceedings. These rules apply to all cases and proceedings in
Mississippi courts, except as provided in subdivision (b).
(b) Exceptions. These rules--except for those on privilege--do not apply to the following:
. . .
(4) these miscellaneous proceedings:
C extradition or rendition;
C issuing an arrest warrant, criminal summons, or search warrant;
C probable cause hearings in criminal cases and youth court cases;
C sentencing;
C disposition hearings;
C granting or revoking probation; and
C considering whether to release on bail or otherwise.
See also Burns v. State, 729 So. 2d 203, 211 (Miss. 1999) (“[O]nce a defendant has been
indicted by a grand jury, the right to a preliminary hearing is deemed waived.”); Sanders
v. State, 847 So. 2d 903, 907 (Miss. Ct. App. 2003) (“The purpose of a preliminary
hearing is to explore whether there is probable cause to believe that the defendant has
committed an offense. The indictment by a grand jury removes the purpose of the
hearing and none need thereafter be conducted.”).
812 REPRESENTATION BY COUNSEL
Art. 3, § 26 Rights of the accused:
In all criminal prosecutions the accused shall have a right to be heard by himself
or counsel, or both, . . . .
The United States Supreme Court has held:
“[A]bsent a knowing and intelligent waiver, no person may be imprisoned
for any offense, whether classified as petty, misdemeanor, or felony,
unless he was represented by counsel at his trial.
. . .
Under the rule we announce today, every judge will know when the trial of
a misdemeanor starts that no imprisonment may be imposed, even though
local law permits it, unless the accused is represented by counsel. He will
have a measure of the seriousness and gravity of the offense and therefore
know when to name a lawyer to represent the accused before the trial
starts.”
Argersinger v. Hamlin, 407 U.S. 25, 37-40 (1972).
This ruling applies to suspended sentences too:
“Where the State provides no counsel to an indigent defendant, does the
Sixth Amendment permit activation of a suspended sentence upon the
defendant's violation of the terms of probation? We conclude that it does
not.”
Alabama v. Shelton, 535 U.S. 654, 662 (2002).
See also Scott v. Illinois, 440 U.S. 367, 373 (1979) (“[T]he Sixth and Fourteenth
Amendments to the United States Constitution require only that no indigent criminal
defendant be sentenced to a term of imprisonment unless the State has afforded him the
right to assistance of appointed counsel in his defense.”); United States v. Eckford, 910
F.2d 216, 218 (5th Cir. 1990) (“Of necessity . . . the sixth amendment does not ensure an
unlimited right to counsel in all criminal cases. If a criminal defendant were guaranteed
counsel in comparatively insignificant criminal prosecutions that did not pose the
possibility of imprisonment, the already overburdened criminal justice system would face
crippling costs, congestion and confusion.”); Porter v. State, 732 So. 2d 899, 904 (Miss.
1999) (“[Under Mississippi law, the right to counsel] attaches ‘once the proceedings
against the defendant reach the accusatory stage.’ The ‘accusatory stage’ is defined by
Mississippi law to occur when a warrant is issued or, ‘by binding over or recognizing the
offender to compel his appearance to answer the offense, as well as by indictment or
affidavit.’”).
MRCrP 7.1 Right to counsel; waiver:
(a) Right to be Represented by Counsel. A defendant shall be entitled to be represented by
counsel in any criminal proceeding. The right to be represented shall include the right to
consult in private with an attorney or the attorney's agent, without unnecessary delay, after
a defendant is taken into custody, at reasonable times thereafter, and sufficiently in
advance of a proceeding to allow adequate preparation therefor.
(b) Right to Appointed Counsel. An indigent defendant shall be entitled to have an
attorney appointed in any criminal proceeding which may result in punishment by loss of
liberty, in any other criminal proceeding in which the court concludes that the interests of
justice so require, or as required by law. The determination of the right to appointed
counsel, and the appointment of such counsel, is to be made no later than at the indigent
defendant's first appearance before a judge.
(c) Waiver of Right to Counsel. When the court learns that a defendant desires to act as
his/her own attorney, the court shall conduct an on-the-record examination of the
defendant to determine if the defendant knowingly and voluntarily desires to act as
his/her own attorney. The court shall inform the defendant that:
1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney,
then the court will appoint one free of charge to defend or assist the defendant in his/her
defense.
2. The defendant has the right to conduct the defense and may elect to do so and allow
whatever role (s)he desires to his/her attorney.
3. The court will not relax or disregard the rules of evidence, procedure or courtroom
protocol for the defendant and that the defendant will be bound by and have to conduct
himself/herself within the same rules as an attorney, that these rules are not simple and
that without legal advice his/her ability to defend himself/herself will be hampered.
4. The right to proceed pro se usually increases the likelihood of a trial outcome
unfavorable to the defendant.
5. Other matters as the court deems appropriate.
After informing the defendant and ascertaining that the defendant understands these
matters, the court will ascertain whether the defendant still wishes to proceed pro se or if
the defendant desires an attorney to assist him/her in his/her defense. If the defendant
desires to proceed pro se, the court should determine whether the defendant has exercised
this right knowingly and voluntarily and, if so, make the finding a matter of record. At the
time of accepting a defendant's waiver of the right to counsel, the court shall inform the
defendant that the waiver may be withdrawn and counsel appointed or retained at any
stage of the proceedings. Additionally, the court may appoint an attorney to assist the
defendant on procedure and protocol, even if the defendant does not desire an attorney.
Such advisory counsel shall be given notice of all matters of which the defendant is
notified.
(d) Withdrawal of Waiver. A defendant may withdraw a waiver of the right to counsel at
any stage of the proceedings but will not be entitled to repeat any proceeding previously
held or waived solely on the grounds of the subsequent appointment or retention of
counsel.
(e) Unreasonable Delay in Retaining Counsel. If a non-indigent defendant appears
without counsel at any proceeding after having been given reasonable time to retain
counsel, the cause may proceed. If an indigent defendant who has refused appointed
counsel in order to obtain private counsel appears without counsel at any proceeding after
having been given reasonable time to retain counsel, the court shall appoint counsel
unless the indigent defendant waives the right under section (c). If the indigent defendant
continues to refuse appointed counsel, the cause may proceed.
MRCrP 7.2 Procedure for appointment of counsel for indigent defendants;
appearance; withdrawal:
(a) Procedure for Appointment of Counsel for Indigent Defendants.
(1) Generally. A procedure shall be established in each circuit, county, municipal, and
justice court for the appointment of counsel for each indigent defendant entitled thereto.
(2) Appointment of Multiple Attorneys. In all death penalty trial proceedings, the court
shall appoint two (2) attorneys pursuant to the standards in Rule 7.4. At the time of the
appointment, and subject to court approval, the appointed attorney may recommend
co-counsel so long as co-counsel is willing to accept the appointment and meets all of the
requirements of Rule 7.4. If the appointed attorney does not recommend co-counsel upon
accepting an appointment, the court shall select co-counsel. In non-death penalty cases,
the appointment of multiple attorneys is within the discretion of the court.
(b) Entry of Appearance. At or before a first appearance in any court on behalf of a
defendant, an attorney, whether privately retained or court-appointed, shall file an entry of
appearance or, in lieu thereof, the court shall note the attorney's appearance on the record.
(c) Duty of Continuing Representation. Counsel representing a defendant at any stage
following indictment shall continue to represent that defendant in all farther proceedings
in the trial court, including filing a notice of appeal, unless counsel withdraws for good
cause as approved by the court.
(d) Withdrawal. When an attorney makes an appearance for any party in a case, that
attorney will not be allowed to withdraw as attorney for the party without the permission
of the court. The attorney making the request shall give notice to his/her client and to all
attorneys in the cause and certify the same to the court in writing. The court shall not
permit withdrawal without prior notice to his/her client and all attorneys of record.
MRCrP 7.3 Determination of indigency; appointment of counsel; compensation:
(a) Standard for Indigency. The term “indigent” as used in these Rules means a person
who is financially unable to employ counsel.
(b) Affidavit or Sworn Testimony of Substantial Hardship. A defendant desiring to
proceed as an indigent may complete an affidavit concerning the defendant's financial
resources on a court-approved form. In lieu of an affidavit, or together with an affidavit,
the defendant may be examined under oath regarding defendant's financial resources by
the judge responsible for determining indigency. Before said questioning, the defendant
shall be advised of the penalties for perjury as provided by law.
(c) Reconsideration. Following a determination of indigency or non-indigency, if there
has been a material change appointed attorney, or the prosecutor may move for
reconsideration.
(d) Order of Appointment. Whenever counsel is appointed, the court shall enter an order
to that effect, a copy of which shall be provided to the defendant the appointed attorney,
and the prosecutor.
(e) Appointment of Public Defender. In counties or municipalities which have a public
defender, the public defender shall represent all defendants entitled to appointed counsel
whenever authorized by law and able to do so.
(f) Other Appointments. If the public defender is not appointed, a private attorney shall be
appointed to the case. All criminal appointments shall be made in a manner fair and
equitable to the members of the bar, taking into account the skill likely to be required in
handling a particular case.
(g) Appointment of Counsel During Appeal Following Withdrawal. When prior counsel
is permitted to withdraw, the trial or appellate court shall appoint new counsel for a
defendant legally entitled to such representation on appeal.
(h) Compensation. A private attorney appointed to represent an indigent defendant is
entitled to compensation for services rendered as provided by law. Other than
compensation for services rendered as provided by law, no appointed counsel may request
or accept any payment or promise of payment for assisting in the representation of a
defendant.
(i) Expenses. Appointed counsel shall be entitled to reasonable and necessary expenses
incurred in defense of an indigent client, including fees and expenses of expert or
professional persons, provided that such expenses are approved in the sound discretion of
the court. Extraordinary expenses, including expert expenses, shall be approved in
advance by the court.
§ 25-32-9 Appointment of public defender:
(1) When any person shall be arrested and charged with a felony, a misdemeanor or an act
of delinquency, then the arresting authority shall afford such person an opportunity to
sign an affidavit stating that such person is an indigent and unable to employ counsel.
Upon the signing of such affidavit by such person, the public defender shall represent said
person unless the right to counsel be waived by such person. Provided further, a statement
shall be executed by the alleged indigent, under oath, listing all assets available to the
indigent for the payment of attorney's fees, including the ownership of any property, real
or personal, and setting out therein the alleged indigent's employment status, number of
dependents, income from any source, the ability of his parents or spouse to provide an
attorney's fee, and any other information which might prove or disprove a finding of
indigency. The affidavit and statement shall be a part of the record in the case and shall be
subject to review by the appropriate court. Based on review of the affidavit, statement or
other appropriate evidence, if the appropriate court finds that the defendant is not
indigent, said court shall terminate the representation of the defendant by the public
defender.
When any person shall be arrested and charged with a misdemeanor, the presiding judge
or justice, upon determination that the person is indigent as provided in this section, and
that representation of the indigent is required, shall appoint the public defender whose
duty it shall be to provide such representation. No person determined to be an indigent as
provided in this section shall be imprisoned as a result of a misdemeanor conviction
unless he was represented by the public defender or waived the right to counsel.
(2) The accused shall have such representation available at every critical stage of the
proceedings against him where a substantial right may be affected.
(3) The public defender shall also represent persons in need of mental treatment, as
provided under Sections 41-21-61 et seq. The chancery court may tax costs as provided in
Sections 41-21-79 and 41-21-85.
Appointing counsel for indigent persons:
§ 21-23-7
(4) When a person shall be charged with an offense in municipal court punishable by
confinement, the municipal judge, being satisfied that such person is an indigent person
and is unable to employ counsel, may, in the discretion of the court, appoint counsel from
the membership of The Mississippi Bar residing in his county who shall represent him.
Compensation for appointed counsel in criminal cases shall be approved and allowed by
the municipal judge and shall be paid by the municipality. The maximum compensation
shall not exceed Two Hundred Dollars ($200.00) for any one (1) case. The governing
authorities of a municipality may, in their discretion, appoint a public defender(s) who
must be a licensed attorney and who shall receive a salary to be fixed by the governing
authorities.
§ 99-15-15
When any person shall be charged with a felony, misdemeanor punishable by
confinement for ninety (90) days or more, or commission of an act of delinquency,
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.
Such appointed counsel shall have free access to the accused who shall have
process to compel the attendance of witnesses in his favor.
The accused shall have such representation available at every critical stage of the
proceeding against him where a substantial right may be affected.
See also Atterberry v. State, 667 So. 2d 622, 630 (Miss. 1995) (“Though the right to
counsel is absolute, the right to counsel of choice is not absolute.”); Ormond v. State, 599
So. 2d 951, 956 (Miss. 1992) (“Denial of the right to counsel ‘will result in reversal of a
subsequent conviction only where it is shown that the accused experienced some
untoward consequence flowing directly from denial of counsel.’”); Evans v. State, 93 So.
3d 62, 66 (Miss. Ct. App. 2012) (“[Evans] neither requested a court-appointed attorney
nor properly qualified himself as indigent . . . .”); Clay v. State, 829 So. 2d 676, 681
(Miss. Ct. App. 2002) (“[Clay] has failed to show he was taken advantaged, forced to
confess, or prejudiced in some other way due to his not having had an attorney at the time
of his initial appearance.”).
§ 99-15-17 Compensation:
The compensation for counsel for indigents appointed as provided in section
99-15-15, shall be approved and allowed by the appropriate judge and in any one
(1) case may not exceed one thousand dollars ($1000.00) for representation in
circuit court whether on appeal or originating in said court. Provided, however, if
said case is not appealed to or does not originate in a court of record, the
maximum compensation shall not exceed two hundred dollars ($200.00) for any
one (1) case, the amount of such compensation to be approved by a judge of the
chancery court, county court or circuit court in the county where the case arises.
Provided, however, in a capital case two (2) attorneys may be appointed, and the
compensation may not exceed two thousand dollars ($2,000.00) per case. If the
case is appealed to the state supreme court by counsel appointed by the judge, the
allowable fee for services on appeal shall not exceed one thousand dollars
($1000.00) per case. In addition, the judge shall allow reimbursement of actual
expenses. The attorney or attorneys so appointed shall itemize the time spent in
defending said indigents together with an itemized statement of expenses of such
defense, and shall present same to the appropriate judge. The fees and expenses
as allowed by the appropriate judge shall be paid by the county treasurer out of the
general fund of the county in which the prosecution was commenced.
See also Gibson v. State, 656 So. 2d 312, 315 (Miss. 1995) (“[Under Section 99-15-17]
the trial judge is authorized to award an order of payment up to $1000, and is not
confined to the $200 statutory cap that should be applied in nonrecord courts. [The] trial
judge was not restricted by the $200 limitation simply because [such] originated in justice
court, which we find to be a court of record.”).
813 PLEADINGS AND MOTIONS SUBMITTED TO THE COURT
MRCrP 1.5 Information on each pleading and motion:
(a) Pleadings filed by counsel. All pleadings, motions, or other applications to the court
shall bear the name, address, bar association number, email address, and office phone
number of the attorney who will try the case and, if different from the attorney who will
try the case, the name, address, bar association number, email address, and office phone
number of the attorney who will be prepared to argue the pleading, motion or other
application.
(b) Pleadings filed pro se. All pleadings, motions, or other applications to the court shall
bear the name, address, email address, and phone number of the party proceeding pro se.
MRCrP 1.6 Size of paper:
All papers filed in any proceeding governed by these Rules shall be on paper measuring
eight and one-half (8 ½ ) inches by eleven (11) inches. Notwithstanding the foregoing,
exhibits or attachments to pleadings may be folded and fastened to pages of the specified
size. An exhibit or attachment not in compliance with the foregoing provisions may be
filed only if it appears that compliance is not reasonably practicable.
MRCrP 1.7 Service and filing of pleadings and certificate of service:
(a) Service: When Required. Unless otherwise ordered by the court, any person filing a
pleading, motion, or application to the court, except the initial pleading or an indictment,
shall:
(1) serve a correct copy of that pleading, motion, or application to the court on all
attorneys of record in the case, and any unrepresented defendant, pursuant to section (b)
of this rule; and
(2) file with the court an original certificate of service certifying that a correct copy of the
pleading, motion, or application to the court has been served on all attorneys of record in
the case, and on any unrepresented defendant, pursuant to section (b) of this rule; stating
the manner of service; and identifying on whom it was served.
(b) Service How Made
(1) Generally. Whenever under these Rules service is required or permitted to be made
upon a party who is represented by an attorney of record in the proceedings, the service
shall be made upon such attorney unless service upon the party is ordered by the court.
Service upon the attorney or upon a party shall be made by:
(A) personally handing a copy to the attorney/party;
(B) transmitting it to the attorney/party by electronic means; or
(C) mailing it to the attorney/party at the last known address.
Service by electronic means is complete when the electronic equipment being used by the
attorney or party being served acknowledges receipt of the material. If the equipment used
by the attorney or party being served does not automatically acknowledge the
transmission, service is not complete until the sending party obtains an acknowledgment
from the recipient. Service by mail is complete upon mailing.
(2) Electronic Court System Service. Where a court has, by local rule, adopted the
Mississippi Electronic Court System, service which is required or permitted under these
Rules shall be made in conformity with the Mississippi Electronic Court System
procedures.
(c) Filing With the Court Defined.
(1) Generally. The filing of pleadings and other papers with the court as required by these
Rules shall be made by filing them with the clerk of the court, except that the judge may
permit the papers to be filed with the judge, in which event the judge shall note thereon
the filing date and forthwith transmit them to the office of the clerk.
(2) Electronic Filing. A court may, by local rule, allow pleadings and other papers to be
filed, signed, or verified by electronic means in conformity with the Mississippi
Electronic Court System procedures. Pleadings and other papers filed electronically in
compliance with the procedures are written papers for purposes of these Rules.
MRCrP 34.1 Form, content, rights of reply:
(a) In General. A party applying to the court for an order must do so by motion.
(b) Form and Content of a Motion. A motion--except when made during a trial or
hearing--must be in writing, unless the court permits the party to make the motion by
other means. A motion shall contain a concise statement of the precise relief requested
and shall state the specific factual grounds and specific legal authority in support thereof.
A motion may be supported by affidavit. The requirement of writing is fulfilled if the
motion is stated in a written notice of the hearing of the motion or if the matter is
presented in an agreed order.
(c) Rights of Reply. Unless otherwise ordered by the court, each party may file and serve
a response within ten (10) days after service of the motion, and the moving party may file
and serve a reply, which shall be directed only to matters raised in a response, within five
(5) days after service of the response. Responses and replies shall be in the form required
for motions.
MRCrP 34.2 Hearing; oral argument:
Upon request of any party, or on its own initiative, the court may set any motion for
hearing. The court may limit or deny oral argument on any motion. It is the duty of the
movant, when a motion or other pleading is filed (including a motion for a new trial), to
pursue the motion to hearing and decision. Failure to pursue a pretrial motion to hearing
and decision before trial is deemed an abandonment of that motion; however, the motion
may be heard after the commencement of trial.
MRCrP 34.3 Waiver of formal requirements:
Upon request of any party, or on its own initiative, the court may waive a requirement
specified in this Rule or overlook a formal defect in a motion or request.
MRCrP 34.4 Service and filing:
Unless otherwise specified in these Rules, the manner and sufficiency of service and
filing of motions, requests, petitions, applications, and all other pleadings and documents
shall be governed by Rule 1.7.
MRCrP 34.5 Entry of order and duty of clerk:
Immediately upon entry of an order or judgment of the court, the clerk of court shall make
a diligent effort to ensure that all attorneys of record have received notice of the entry of
the order.
814 PLEAS
MRCrP 15.2 Proceedings at arraignment:
(a) Pleas. A defendant may plead not guilty, guilty, or, with leave of the court in
misdemeanor cases, nolo contendere.
(b) Failure or Refusal to Plead. 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
set the case for trial.
(c) Absence of Defendant. If the defendant is released on bail or recognizance, and does
not appear to be arraigned, or as required by the bond or recognizance, the court may, in
addition to forfeiture of bail, direct the clerk to issue a bench warrant to bring the
defendant before the court.
MRCrP 15.3 Entry of plea of guilty or nolo contendere:
(a) Defendant's Presence at Plea.
(1) Defendants Generally. A defendant charged with the commission of a felony, who
wishes to plead guilty, is required to plead personally. The court may require the personal
appearance of a defendant charged with a misdemeanor.
(2) Organizational Defendants. An organizational defendant need not be present if
represented by counsel who is present.
(b) Entry of Plea. A person charged with a criminal offense in county or circuit court,
who is represented by counsel, may appear before the court at any time the judge may fix,
be arraigned, enter a plea of guilty to the offense charged or, with leave of the court in
misdemeanor cases, nolo contendere, and be sentenced at that time or some future time
set by the court,
(c) 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 is not voluntary if induced by fear, violence, deception, or
improper inducements. A showing that the plea of guilty was voluntarily and intelligently
made must appear in the record.
(d) Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty
to a felony or a misdemeanor with the possibility of incarceration, the defendant may be
placed under oath and it is the duty of the trial court to address the defendant personally
in open court to inquire and determine:
(1) That the accused is competent to understand the nature of the charge;
(2) That the accused understands the nature and consequences of the plea, and the
maximum and minimum penalties provided by law;
(3) That the accused understands that, by pleading guilty, the accused waives the
constitutional rights of trial by jury, the right to confront and cross-examine adverse
witnesses, and the right against self-incrimination; as well as that, if the accused is not
represented by an attorney, that the accused is aware of the right to an attorney at every
stage of the proceeding and that one will be appointed to represent the accused, if
indigent; and
(4) That the accused understands that, if the accused is not a citizen of the United States,
the plea may have immigration consequences. The court shall specify that, if convicted, a
defendant who is not a United States citizen may be removed from the United States,
denied citizenship, and denied admission to the United States in the future.
MRCrP 15.4 Plea bargaining:
(a) Entering into Plea Agreements.
(1) The prosecuting attorney is encouraged to discuss and agree on pleas which may be
entered by the defendant. Any discussions or agreements must be conducted with
defendant's attorney or, if defendant is unrepresented, the discussion and agreement may
be conducted with the defendant.
(2) The prosecuting attorney and the defendant's attorney, or the defendant acting pro se,
may reach an agreement that upon entry of a plea of guilty or, with leave of the court in
misdemeanor cases, nolo contendere, to the offense charged or to a lesser or related
offense, the prosecuting attorney may do any of the following:
(A) Move for a dismissal of other charges;
(B) Make a recommendation to the trial court for a particular sentence, with the
understanding that such recommendation or request will not be binding upon the court; or
(C) Make a recommendation to the trial court for a particular sentence, which the court
may accept or reject. If the court accepts the plea agreement, it must inform the defendant
the agreed disposition will be included in the judgment. If the court rejects the
recommendation, the court must do the following on the record:
(i) inform the parties that the court rejects the plea agreement;
(ii) advise the defendant personally that the court is not required to follow the plea
agreement and give the defendant an opportunity to withdraw the plea; and
(iii) advise the defendant personally that if the plea is not withdrawn, the court may
dispose of the case less favorably toward the defendant than the plea agreement
contemplated.
(3) Defense attorneys shall not conclude any plea bargaining on behalf of the defendant
without the defendant's full and complete consent, being certain that the decision to plead
is made by defendant. Defense attorneys must advise the defendant of all pertinent
matters bearing on the choice of plea, including likely results or alternatives.
(b) Disclosure and Consideration of Plea Agreement. The trial judge shall not participate
in any plea discussion. The court may designate a cut-off date for plea discussions and
may refuse to consider the recommendation after that date. After a recommended
disposition on the plea has been reached, it may be made known to the court, along with
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.
(c) Withdrawing a Plea.
(1) It is within the discretion of the court to permit or deny a motion for the withdrawal of
a guilty plea, except as provided in (a)(2).
(2) In order to be sufficient, a motion to withdraw a guilty plea must show good cause.
(d) Inadmissibility of Withdrawn Guilty Plea. The fact that the defendant may have
entered a plea of guilty to the offense charged may not be used against the defendant at
trial if the plea has been withdrawn.
See also Nelson v. State, 626 So. 2d 121, 126 (Miss. 1993) (“We note however, that the
guilty plea colloquy left much to be desired. It is not enough to ask an accused whether
counsel has explained his constitutional rights. Nor is a standardized petition to enter a
plea sufficient standing alone. The court must go further and determine in a face-to-face
exchange in open court that the accused knows and understands the rights to which he is
entitled.”); Turner v. State, 262 So. 3d 547, 551 (Miss. Ct. App. 2018) (“The record
shows Turner was advised of the nature of the charges against him and the consequences
of a guilty plea. . . . We find Turner's guilty plea was voluntarily entered.”); Smith v.
State, 845 So. 2d 703, 705 (Miss. Ct. App. 2003) (“The judge thoroughly questioned
Smith to insure that he made an informed decision.”).
Accepting a guilty plea:
The decision to accept a guilty plea rests within the sound discretion of the court. See
Santobello v. New York, 404 U.S. 257, 262 (1971) (“There is . . . no absolute right to
have a guilty plea accepted. A court may reject a plea in exercise of sound judicial
discretion.”); Beard v. State, 392 So. 2d 1143, 1144 (Miss. 1981) (“The trial court
committed no error in declining to accept a plea of guilty from a defendant who
adamantly maintained that he was innocent.”); Epting v. State, 720 So. 2d 487, 488
(Miss. Ct. App. 1998) (“The trial judge in the present case concluded that Epting's
response regarding his participation in the crime was insufficient to accept as an
admission of guilt, and in the final analysis, such decision rests within the sound
discretion of the trial judge.”).
Nolo contendere plea:
A nolo contendere plea, if accepted by the court, is not admissible evidence for any
subsequent criminal proceeding or civil action. However, it still stands as a conviction
and may be used for purposes of sentence enhancement. See Bailey v. State, 728 So. 2d
1070, 1070 (Miss. 1997) (“Prior DUI convictions based on the nolo contendere pleas
were valid and can be used for purposes of enhancing the sentence under Mississippi's
implied consent law.”).
815 DISCLOSURE AND DISCOVERY
MRCrP 17.1 Scope:
Rules 17.2 and 17.3 apply in felony cases and in trials of misdemeanor cases in circuit
and county court. Rule 17.10 applies in municipal and justice court. The balance of Rule
17 applies in all courts.
MRCrP 17.4 Notice of defenses:
(a) Alibi Defense.
(1) In General. 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 (10) days, or at such other time as the court may direct, upon the prosecuting
attorney, a written notice of the intention to offer a defense of alibi, which notice shall
state the specific place(s) at which the defendant claims to have been at the time of the
alleged offense and the names and addresses of the witnesses upon whom the defendant
intends to rely to establish such alibi.
Within ten (10) days thereafter, but in no event less than ten (10) days before the trial,
unless the court otherwise directs, the prosecuting attorney shall serve upon the defendant
or the defendant's 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 famished, the party shall
promptly notify the other party or the other party's attorney of the name and address of
such additional witness.
(2) Effect of Failure to Comply. Upon the failure of either party to comply with
subsection (a)(1), the court may use such sanctions as it deems proper, including:
(A) Granting a continuance;
(B) Limiting further discovery of the party failing to comply;
(C) Finding the attorney failing to comply in contempt; or
(D) Excluding the testimony of the undisclosed witness.
(3) Additional Provisions. Subsections (a)(1) and (a)(2) do not limit the defendant's right
to testify in the defendant's own behalf.
(b) Insanity Defense.
(1) In General. If a defendant intends to rely upon the defense of insanity at the time of
the alleged crime, the defendant 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 the intention to offer a defense of insanity.
Within ten (10) days thereafter, but in no event less than ten (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 the defendant intends to rely to
establish the defense of insanity.
If a defendant intends to introduce expert testimony relating to a mental illness, defect, or
other condition bearing upon the issue of whether the defendant had the mental state
required for the offense charged, the defendant shall, within the time provided for the
filing of pretrial motions or at such later 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 prosecuting attorney shall serve notice on the defendant promptly, but in no event
less than ten (10) days prior to trial, 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 or the other party's attorney of the name and address of such additional
witness.
(2) Effect of Failure to Comply. If there is a failure to comply with the requirements of
subsection (b)(1), the court may use such sanctions as it deems eluding:
(A) Granting a continuance and/or assessing costs against the appropriate attorney or
party;
(B) Limiting further discovery of the party failing to comply;
(C) Finding the attorney failing to comply in contempt; or
(D) Excluding the testimony of appropriate witnesses.
(c) Exceptions. For good cause shown, the court may grant an exception to the
requirements of sections (a) and (b).
MRCrP 17.5 Depositions:
(a) When Taken.
(1) In General. A party may move that a prospective witness be deposed in order to
preserve testimony for trial. The court may grant the motion because of exceptional
circumstances and in the interest of justice. If the court orders the deposition to be taken,
it may also require the deponent to produce at the deposition any designated material that
is not privileged, including any book, paper, document, record, recording, or data.
(2) Detained Material Witness. A witness who is detained under Mississippi Code
Section 99-15-7 may request to be deposed by filing a written motion and giving notice to
the parties. The court may then order that the deposition be taken and may discharge the
witness after the witness has signed under oath the deposition transcript.
(b) Notice.
(1) In General. A party seeking to take a deposition must give every other party
reasonable written notice of the deposition's date and location. The notice must state the
name and address of each deponent. If requested by a party receiving the notice, the court
may, for good cause, change the deposition's date or location.
(2) To the Custodial Officer. A party seeking to take the deposition must also notify the
officer who has custody of the defendant of the scheduled date and location.
(c) Defendant's Presence.
(1) Defendant in Custody. The officer who has custody of the defendant must produce the
defendant at the deposition and keep the defendant in the witness's presence during the
examination, unless the defendant:
(A) waives in writing the right to be present; or
(B) persists in disruptive conduct justifying exclusion after being warned by the court that
disruptive conduct will result in the defendant's exclusion.
(2) Defendant Not in Custody. A defendant who is not in custody has the right, upon
request, to be present at the deposition, subject to any conditions imposed by the court. If
the State tenders the defendant's expenses as provided in section (d), but the defendant
still fails to appear, the defendant--absent good cause--waives both the right to appear and
any objection to the taking and use of the deposition based on that right.
(d) Expenses. If the deposition was requested by the State, the court may--or, is unable to
bear the deposition expenses, must--order the State to pay;
(1) any reasonable travel and subsistence expenses of the defendant and the defendant's
attorney to attend the deposition; and
(2) the costs of the deposition transcript.
(e) Manner of Taking. Unless these Rules or a court order provides otherwise, a
deposition must be taken and filed in the same manner as a deposition in a civil action,
except that:
(1) A defendant may not be deposed without that defendant's consent.
(2) The scope and manner of the deposition examination and cross-examination must be
the same as would be allowed during trial.
(3) The State must provide to the defendant or the defendant's attorney, for use at the
deposition, any statement of the deponent in the State's possession to which the defendant
would be entitled at trial.
(4) The trial judge may preside over the taking of the deposition.
(f) Use as Evidence. Depositions may be used in the manner provided by Mississippi
Rule of Civil Procedure 32.
(g) Objections. A party objecting to deposition testimony or evidence must state the
grounds for the objection during the deposition.
(h) Depositions by Agreement Permitted. The parties may, by agreement, take and use a
deposition with the court's consent.
MRCrP 17.6 General standards:
In all disclosures under this Rule the following shall apply:
(a) Materials Not 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.
(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, a failure to disclose his/her
identity will infringe the constitutional rights of the accused, and/or the informant was, or
depicts himself/herself as, an eyewitness to the event(s) constituting the charge against
the defendant.
(b) Use of Discovery Material. The attorney receiving discovery material is responsible
for those materials and shall not distribute them to third parties,
(c) Advice from Counsel Regarding Relevant Information. Except as otherwise provided
by law, or in cases where the witness would be forced to reveal self-incriminating
evidence, neither an attorney for the parties nor other prosecution or defense personnel
shall:
(1) advise persons having relevant information or material, except the accused, to retrain
from discussing the case with, or snowing any relevant material to, the opposing
attorney(s), or
(2) otherwise impede the opposing attorney(s') investigation of the case.
(d) Filing Discovery Material. Discovery material shall not be filed with the clerk unless
authorized by the court.
MRCrP 17.7 Excision and protective orders:
(a) Discretion of the Court to Deny, Restrict, or Defer Disclosure. Upon a showing of
cause, the court may order that specified disclosures be denied, restricted, or deferred, or
make such other order as is appropriate. For instance, the court may limit or deny
disclosure 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.
However, all material and information to which a party is entitled must be disclosed in
time to permit the party's attorney to make beneficial use thereof.
(b) Discretion of the Court to Authorize Excision. When some parts of certain materials
are discoverable under these Rules and other parts are not discoverable, as much of the
material should be disclosed as is consistent with the Rules.
(c) Protective and Excision Order Proceedings. 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.
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.
(d) Preservation of Record. Material excised pursuant to judicial order 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.
MRCrP 17.8 Continuing duty to disclose:
Both the State and the defendant have a duty timely to supplement discovery, If,
subsequent to compliance with these Rules or orders pursuant thereto, a party discovers
additional material or information which is subject to disclosure, that party shall promptly
notify the other party or the other party's attorney of the existence of such additional
material or information and, if the additional material or information is discovered during
trial, the court shall also be notified.
MRCrP 17.9 Failure to disclose; sanctions:
(a) Failure to Make Disclosure--Pre-Trial. 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 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.
(b) Failure to Make Disclosure--Trial. 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:
(1) Grant the defense a reasonable opportunity to interview the newly discovered witness
and/or examine the newly produced documents, photographs or other evidence.
(2) If, after such opportunity, the defense claims unfair surprise or undue prejudice and
seeks a continuance or mistrial, the court shall, In the interest of justice and absent
unusual circumstances, exclude the evidence, 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.
(c) Sanctions. Willful violation by an attorney of an applicable discovery rule, or an order
issued pursuant thereto, may subject the attorney to appropriate sanctions by the court.
MRCrP 17.10 Discovery in municipal and justice courts:
(a) Discovery by the Defense. Upon written request made prior to trial, the prosecuting
attorney shall provide to the defense the following:
(1) the names of all witnesses expected to testify for the prosecution;
(2) a copy of any written statement of the defendant;
(3) a copy of the criminal record of the defendant, if proposed for use as impeachment;
(4) a copy of laboratory reports or reports of any tests made;
(5) any physical evidence, photographs, and/or electronic data to be offered in evidence;
(6) a copy of any exculpatory material concerning the defendant; and
(7) any affidavit used to obtain a search warrant in the case.
The prosecutor has a continuing duty to supplement any disclosure previously furnished.
(b) Reciprocal Discovery. The prosecuting attorney is entitled to reciprocal discovery of
items (a)(1)--(7).
§ 63-11-15 Access to information on DUI chemical test:
Upon the written request of the person tested, or his attorney, full information
concerning the test taken at the direction of the law enforcement officer shall be
made available to him or to his attorney.
See also Administrative Order (August 27, 2008) (Statement of Policy Regarding
Openness and Availability of Public Records), which may be accessed on the State of
Mississippi Judiciary website at www.mssc.state.ms.us/ and clicking “Public Records
Policy.”
A prosecutor may not suppress evidence favorable to the accused:
[S]uppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.
Brady v. Maryland, 373 U.S. 83, 87 (1963).
In determining whether a Brady violation has occurred the defendant must prove:
1) that the State possessed evidence favorable to the defendant (including impeachment
evidence);
2) that the defendant does not possess the evidence nor could obtain it with any
reasonable diligence;
3) that the prosecution suppressed the favorable evidence; and
4) that had the evidence been disclosed to the defense, a reasonable probability exists that
the outcome of the proceedings would have been different.
See Carr v. State, 873 So. 2d 991, 999 (Miss. 2004); King v. State, 656 So. 2d 1168, 1174
(Miss. 1995).
816 INTERPRETERS
See CHAPTER 23 “INTERPRETERS.”
817 PRO SE DEFENDANTS
See CHAPTER 24 “PRO SE DEFENDANTS.”
818 SUBPOENAS
§ 21-23-7 Municipal judge may issue subpoenas:
(3) The municipal judge may solemnize marriages, take oaths, affidavits and
acknowledgments, and issue orders, subpoenas, summonses, citations, warrants for search
and arrest upon a finding of probable cause, and other such process under seal of the court
to any county or municipality, in a criminal case, to be executed by the lawful authority of
the county or the municipality of the respondent, and enforce obedience thereto. The
absence of a seal shall not invalidate the process.
MRCrP 33 Subpoenas:
(a) Generally. Except as set forth below, the procedures for subpoenas shall conform to
Rule 45 of the Mississippi Rules of Civil Procedure. This Rule shall not apply to
proceedings before a grand jury.
(b) Subpoenas Duces Tecum for Production at Trial or Hearing. A subpoena may, without
a motion or hearing, require the production of books, papers, documents or other objects
at the date, time and place at which the trial, hearing or proceeding at which these items
are to be offered in evidence is scheduled to take place.
(c) Subpoenas Duces Tecum for Production other than at Trial or Hearing.
(1) Generally. No subpoena may require the production of books, papers, documents or
other objects at a date and time or place other than the date, time and place at which the
trial, hearing or proceeding at which these items are to be offered in evidence is scheduled
to take place, unless the court has entered an order pursuant to this Rule authorizing the
issuance of such subpoena.
(2) Motions; Service; Opposition. A hearing on a motion for the issuance of a subpoena
duces tecum shall be set at the time the motion is filed and served. The hearing shall be
set no earlier than ten (10) days after filing and service of the motion. Except for good
cause shown, all motions for subpoenas duces tecum shall be served on:
(A) the custodian of the books, papers, documents or other objects which would be
subject to the subpoena;
(B) all parties;
(C) all persons whose books, papers, documents or other objects would be subject to the
subpoena; and
(D) all persons who may have a claim that privileged material would be subject to the
subpoena.
Any party to the action or other interested person may file an opposition or response.
(3) Supporting Affidavit or Declaration. Motions seeking subpoenas duces tecum shall be
supported by an affidavit or declaration stating facts which establish:
(A) the documents or objects sought are evidentiary and relevant;
(B) the documents or objects sought are not otherwise reasonably procurable in advance
of the trial, hearing or proceeding by exercise of due diligence;
(C) the moving party cannot properly prepare for trial without such production and
inspection in advance of trial and the failure to obtain such inspection may tend
unreasonably to delay the trial; and
(D) the application is made in good faith and is not intended for the purpose of general
discovery.
(4) Immediate Lodging with Court. Any subpoena duces tecum under section (c) shall be
returnable to, and the items sought thereunder produced before, the court. In the event
that materials subject to a subpoena are received by a party, an attorney, or an attorney's
agent or investigator directly from the subpoenaed person, any person receiving such
materials shall immediately notify the court and shall immediately lodge such materials
with the court. The materials shall not be opened, reviewed or copied by a recipient
without a prior court order.
(d) Sanctions. Violation of this Rule may provide a basis for sanctions.
Subpoena duces tecum:
A subpoena duces tecum requires a witness produce certain documents or other materials
relevant to the case, and is obtained by filing a petition which describes the requested
materials with ‘certainty and particularity’ and states their relevance. The judge must
decide whether the request is reasonable and proper. Factors considered are the situation,
volume, purpose, and materiality of the request. See Griffin v. State, 494 So. 2d 376, 380
(Miss. 1986); Williams v. State, 125 So. 2d 535, 536 (Miss. 1960).
§ 99-43-45 Protections as to subpoenas:
The victim shall respond to a subpoena to testify in a criminal proceeding or
participate in the reasonable preparation of criminal proceeding without loss of
employment, intimidation or threat or fear of the loss of employment.
819 CONTINUANCES
Article 3 § 26 Reasonable opportunity to prepare for trial:
In all criminal prosecutions the accused shall have a right to be heard by himself or
counsel, or both, to demand the nature and cause of the accusation, to be confronted by
the witnesses against him, to have compulsory process for obtaining witnesses in his
favor, and, in all prosecutions by indictment or information, a speedy and public trial by
an impartial jury of the county where the offense was committed;
See also Barnes v. State, 249 So. 2d 383, 385 (Miss. 1971) (“A judicial trial becomes a
farce, a mere burlesque, and in serious cases a most gruesome one at that, when a person
is hurried into a trial upon an indictment charging him with a high crime, without
permitting him the privilege of examining the charge and time for preparing his
defense.”).
MRCrP 9 Trial setting:
(a) Trial Docket. Within sixty (60) days after arraignment (or waiver thereof), the court
shall enter an order setting a date for trial. Trial shall be set for no later than
two-hundred-and-seventy (270) days after arraignment (or waiver thereof). A docket of
cases set for trial shall be maintained by the clerk or the court administrator. Cases set by
the judge for trial must be ready at the appointed time.
(b) Criminal Docket to Have Priority. Insofar as is practicable, trials of criminal cases
shall have priority over trials of civil cases.
(c) Continuance of Trial Date. For good cause shown, a continuance may be granted by
written order of the court on its own motion, or on the motion of a party stating, with
specificity, the reasons for the continuance.
§ 99-15-29 To secure an absent witness or documents:
On all applications for a continuance the party shall set forth in his affidavit the
facts which he expects to prove by his absent witness or documents that the court
may judge of the materiality of such facts, the name and residence of the absent
witness, that he has used due diligence to procure the absent documents, or
presence of the absent witness, as the case may be, stating in what such diligence
consists, and that the continuance is not sought for delay only, but that justice may
be done. The court may grant or deny a continuance, in its discretion, and may of
its own motion cross-examine the party making the affidavit. The attorneys for
the other side may also cross-examine and may introduce evidence by affidavit or
otherwise for the purpose of showing to the court that a continuance should be
denied. No application for a continuance shall be considered in the absence of the
party making the affidavit, unless his absence be accounted for to the satisfaction
of the court. A denial of the continuance shall not be ground for reversal unless
the supreme court shall be satisfied that injustice resulted therefrom.
See also Culberson v. State, 379 So. 2d 499, 505 (Miss. 1979) (“Appellant failed to
satisfy the requirements of the statute in that his motion was not supported by affidavit
and did not state with particularity the material testimony expected from the absent
witnesses.”); Triplett v. State, 666 So. 2d 1356, 1361 (Miss. 1995) (“In order to be
entitled to a continuance because of an absent witness, counsel must demonstrate to the
court that ‘he has used due diligence’ to secure his presence. . . . Embraced therein is the
requirement that counsel has made a timely effort to place the absent witness under a
subpoena.”); Robinson v. State, 228 So. 2d 373, 375 (Miss. 1969) (“The motion for
continuance did not identify the missing witnesses, the steps taken to secure their
attendance, any due diligence in attempting to procure their presence, or the nature of
their testimony.”); McClendon v. State, 335 So. 2d 887, 888 (Miss. 1976) (“Appellant's
ore tenus motion does not conform to the statute in that it . . . fails to state that the
continuance was not sought for delay only, but that justice may be done.”); Ware v. State,
98 So. 229, 229 (Miss. 1923) (“It does not appear from the application with sufficient
clearness that [the absent witness] would testify contradicting the state’s witnesses.”);
Donald v. State, 41 So. 4, 5 (Miss. 1906) (“The affidavit for continuance is fatally
defective in not giving the residence of the witness.”); Johnson v. State, 872 So. 2d 65, 70
(Miss. Ct. App. 2004) (“What the appellants were attempting to do was go on the
proverbial fishing expedition--unnamed and unknown individuals somewhere may have
pertinent information. [T]he motion for a continuance was properly denied.”).
Additional time to prepare for trial:
A request for continuance for additional time to prepare for trial is subject to proof.
Barnes v. State, 249 So. 2d 383, 384 (Miss. 1971). That is,
[I]t is incumbent upon a movant requesting a continuance to set forth with
specificity the reasons why additional time is necessary to prepare for trial.
Farrish v. State, 840 So. 2d 820, 822 (Miss. Ct. App. 2003).
Significant factors to consider include the complexity of the case and the seriousness of
the offense. See Brown v. State, 252 So. 2d 885, 887 (Miss. 1971).
See also Shaw v. State, 378 So. 2d 631, 634 (Miss. 1979) (“[T]he record is devoid of any
evidence or proof as to precisely how additional time by way of continuance might have
been used to his advantage. There was merely the naked statement of counsel that he had
other cases set for the term . . . .”); Martin v. State, 312 So. 2d 5, 6 (Miss. 1975) (“[W]e
recognize that preparation for trial is a tedious and time-consuming process. . . . [T]his is
one of those rare instances in which the trial court abused its discretion in overruling
appellant's motion for a continuance.”).
To retain new counsel:
There are two competing considerations when a continuance is requested to retain new
counsel:
The right of a defendant to obtain a continuance for the purpose of seeking
counsel of his own choosing must be considered in light of the court’s
right to manage its docket.
Fields v. State, 879 So. 2d 481, 484 (Miss. Ct. App. 2004).
Thus, the voluntary substitution of counsel (either prior to or during the course of trial) is
not by itself grounds for continuance. Speagle v. State, 390 So. 2d 990, 992 (Miss. 1980);
see also Byrd v. State, 522 So. 2d 756, 759 (Miss. 1988) (“[W]here a defendant retains
new counsel at the eleventh hour, he is not entitled to a continuance merely because new
counsel was unprepared.”); Harrison v. State, 520 So. 2d 1352, 1354 (Miss. 1987)
(“Defendant was not entitled to a continuance so that he could work and earn money with
which to hire an attorney.”).
820 PROSECUTOR’S MOTION FOR DISMISSAL OR REDUCTION OF CHARGES
§ 99-15-51 Compromise of petty misdemeanors:
In prosecutions for petty misdemeanors, if the party injured appear before the
court where the same shall be pending and acknowledge to have received
satisfaction, on motion of the prosecuting attorney the court, if it shall adjudge
that the ends of justice will be conserved thereby, may discharge the defendant
and dismiss the proceedings and may require the payment of court costs.
§ 63-11-39 Reduction of charges under Implied Consent Law prohibited:
The court having jurisdiction or the prosecutor shall not reduce any charge under
this chapter to a lesser charge.
821 TRIAL PROCEDURES
MRCrP 16.1 Motion deadline; hearings and rulings on motions:
(a) Motion Deadline. At arraignment or thereafter, the court may set a reasonable deadline
for the filing and hearing of all pretrial motions. Pretrial motions shall include, but are not
limited to, motions: to dismiss, to suppress evidence, to request discovery, for
continuance, for severance, for appointment of experts, for mental examination, or for
any other matters which may delay the trial.
(b) Ruling on a Motion Generally. The court must decide every pretrial motion before
trial unless it finds good cause to defer a ruling. When factual issues are involved in
deciding a motion, the court must state its essential findings on the record.
MRCrP 16.2 Effects of rulings:
(a) Effect of Granting Motion Based on Defective Charge. If the court grants a motion to
dismiss based on a defect in instituting the prosecution or in the charge, the court may:
(1) order the defendant released; or
(2) upon motion of the prosecuting attorney and upon a finding by the court of probable
cause, order the defendant's continued detention; or
(3) if the defendant is free on bail or recognizance, order the continuation of such bail or
recognizance for a reasonable time to afford the prosecutor an opportunity to file a new
charging affidavit.
(b) Motion to Suppress. If a motion to suppress is granted, any suppressed property that
was seized shall be restored to its rightful owner, unless otherwise subject to lawful
detention. However, no firearm shall be returned to a convicted felon.
(c) Statutes of Limitations Tolled. The running of the time prescribed by an applicable
statute of limitations shall be tolled by the issuance of the indictment until such time as
the court grants a motion to dismiss based on a defect in the commencement of the
proceedings or in the charge, unless the court, in granting the motion, finds that the state
has not made a good faith effort to proceed properly and that the defendant has been
prejudiced by any resulting delay.
MRCrP 10.1 Right of defendant to be present; waiver:
(a) Right to Be Present. The defendant has the right to be present at the arraignment and
at every stage of the proceedings. A corporate criminal defendant may appear by counsel
for all purposes at any proceeding.
(b) Waiver of the Right to Be Present.
(1) Except as provided in subsection (2), a defendant may waive the right to be present at
any proceeding in the following manner:
(A) with the consent of the court, by a knowing, intelligent, and explicit waiver in open
court or by a written waiver executed by the defendant and by the defendant's attorney of
record, filed in the case; or
(B) by the defendant's absence from any proceeding, if the court finds that such absence
was voluntary and constitutes a knowing and intelligent waiver of the right to be present.
(2) A defendant may not waive the right to be present:
(A) during the imposition of his/her sentence in a felony case; or
(B) if the defendant is not represented by counsel, except in minor misdemeanor cases
where the potential punishment is a fine only and carries no potential for the loss of
liberty.
(c) Effect. If the defendant waives the right to be present, the trial may proceed to
completion, including the return of the verdict.
(d) Unexcused Defendant. If a defendant is not present at the trial, or any stage of the
proceedings, and the defendant's presence has not been waived or the absence has not
been excused, the court, by order, may direct law enforcement officers forthwith to bring
the defendant before the court.
MRCrP 12.1 Mental competency; definition:
(a) Mental Competency. There is a presumption of mental competency. In order to be
deemed mentally competent, a defendant must have the ability to perceive and understand
the nature of the proceedings, to communicate rationally with the defendant's attorney
about the case, to recall relevant facts, and to testify in the defendant's own defense, if
appropriate. The presence of a mental illness, defect, or disability alone is not grounds for
finding a defendant incompetent to stand trial. If as a result of mental illness, defect, or
disability, a defendant lacks mental competency, then the defendant shall not be tried,
convicted, or sentenced for a criminal offense.
(b) Mental Illness, Defect, or Disability. Mental illness, defect, or disability means a
psychiatric or neurological disorder that is evidenced by behavioral or emotional
symptoms, including congenital mental conditions, conditions resulting from injury or
disease, or developmental disabilities.
MRCrP 21 Motions for directed verdict:
(a) After the Prosecution's Case-In-Chief. After the prosecution rests, the court, on its
own motion or upon motion by the defendant, may consider whether the evidence is
sufficient to sustain a conviction. A motion for directed verdict must specify the manner
in which the evidence is deficient. When, with respect to one (1) or more elements of the
offense charged, the evidence is insufficient to support a conviction, the court shall order
a directed verdict of “not guilty.” The trial shall proceed with respect to the remaining
count(s), if any.
(b) At the Close of the Evidence. If the motion for directed verdict is denied, the
defendant may rest or proceed to introduce evidence on his/her behalf. If the defendant
chooses to go forward with his/her own case, the defendant may renew the motion for
directed verdict after the close of all the evidence.
(c) Waiver. The failure of a defendant to challenge the sufficiency of the evidence at the
times and in the manner prescribed will constitute a waiver of any argument on appeal
pertaining to the sufficiency of the evidence to support the verdict.
(d) Denial by Operation of Law. If, for any reason, a motion or a renewed motion for
directed verdict is not ruled upon by the entry of judgment, it is deemed denied for
purposes of appellate review.
Burden of proof:
In criminal cases, the State must prove all the elements of the crime and the defendant’s
connection to them beyond a reasonable doubt. See McVeay v. State, 355 So. 2d 1389,
1391 (Miss. 1978).
MRE 615 Excluding of witnesses:
At a party's request, the court must order witnesses excluded so that they cannot hear
other witnesses' testimony. Or the court may do so on its own. But this rule does not
authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as
the party's representative by its attorney; or
(c) a person whose presence a party shows to be essential to presenting the party's claim
or defense.
The Comment to Rule 615 of the Mississippi Rules of Evidence provides in part: “This
rule does not discuss sanctions for violation of the sequestration order. Under existing
Mississippi law the court has the discretion to exclude the offending witness from
testifying. See Johnson v. State, 346 So. 2d 927 (Miss. 1977). The trial judge should not
permit a witness who has violated the rule to testify unless he has first determined that the
adversary would not be prejudiced by the violation of the rule. Other available remedies
might be to strike the testimony of a witness who violated the rule, cite the witness for
contempt, or allow a “full-bore” cross-examination. See Douglas v. State, 525 So. 2d
1312 (Miss. 1988).”
See also Brown v. State, 682 So. 2d 340, 347 (Miss. 1996) (“Often called ‘the rule,’ the
witness exclusion rule serves to discourage a witness's tailoring his testimony to what he
has heard from the stand and the rule serves to facilitate exposing false testimony.”).
MRCrP 19.1 Proceedings at trial:
(a) Order of Proceedings. Following the impanelment of the jury, the trial shall proceed in
the following order unless otherwise directed by the court:
(1) A summary of the charge and the plea of the defendant may be provided by the court.
In summarizing the charge, all references to prior conviction(s) alleged as sentencing
enhancers shall be omitted.
(2) The prosecuting attorney may make an opening statement to the jury, confining the
statement to the facts the prosecutor expects to prove.
(3) The defendant (personally or by counsel) may make an opening statement to the jury
at the conclusion of the State's opening statement or prior to the defendant's case-in-chief.
The statement shall be confined to a statement of the defense and the facts, if any, the
defendant expects to prove in support thereof.
(4) The prosecuting attorney shall offer the evidence in support of the charge.
(5) The defendant (personally or by counsel) may then make an opening statement, if it
was deferred, and offer evidence in defense.
(6) The prosecuting attorney shall then be allowed to offer evidence in rebuttal.
(7) The court may allow surrebuttal for good cause.
(8) The judge shall then read the instructions to the jury. The court clerk may read the
instructions to the jury when the judge is unable by reason of physical infirmity.
(9) The prosecuting attorney may then make a closing argument to the jury. Thereafter,
the defendant may make a closing argument to the jury. Failure of the prosecuting
attorney to make a closing argument shall not deprive the defendant of the right to argue.
The prosecuting attorney may then make a rebuttal argument, not to exceed one-half ( ½ )
of the prosecuting attorney's allotted time. If, after the prosecuting attorney's initial
closing argument, a defendant declines to make a closing argument, the prosecuting
attorney shall make no further argument.
(b) Enhancement of Punishment.
(1) Sentencing enhancements based upon prior conviction(s). In cases involving enhanced
punishment based upon prior conviction(s), the trial shall proceed as follows:
(A) Separate trials shall be held on the principal charge and on the charge of previous
conviction(s). In the trial on the principal charge, the previous conviction(s) will not be
mentioned by the state or the court except as provided by the Mississippi Rules of
Evidence.
(B) If the defendant is convicted or enters a plea of guilty on the principal charge then,
unless there is an agreement or ruling to the contrary, a hearing before the court without a
jury will be conducted on the previous conviction(s).
(2) Elevated crimes based upon facts required to be found by a jury.
(A) Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum shall be submitted to a jury and must be
proved beyond a reasonable doubt.
(B) When a prior conviction is an element of the principal charge, the fact of a prior
conviction shall be submitted to a jury and proved beyond a reasonable doubt, However,
the defendant may stipulate to, or waive proof regarding, the prior conviction and the trial
court shall accept such a stipulation. The stipulation then shall be submitted to the jury
with a proper limiting instruction.
Case law:
Banks v. State, 725 So. 2d 711, 718 (Miss. 1997) (“Generally, attorneys on both sides in a
criminal prosecution are given broad latitude during closing arguments. Prosecutors are
afforded the right to argue anything in the State's closing argument that was presented as
evidence. However, arguing statements of fact that are not in evidence or necessarily
inferable from it and that are prejudicial to the defendant is error. Thus, prosecuting
attorneys should refrain from doing or saying anything that would tend to cause the jury
to disfavor the defendant due to matters other than evidence relative to the crime.”).
Powell v. State, 662 So. 2d 1095, 1098 (Miss. 1995) (“Generally, the party who has the
burden of proof must introduce all substantive evidence in his case-in-chief. However,
where there is a doubt as to whether evidence is properly case-in-chief or rebuttal
evidence, then the court should resolve the doubt in favor of reception into rebuttal if: (1)
its reception will not consume so much additional time as to give an undue weight
impractical probative force to the evidence so received in rebuttal, and (2) the opposite
party would be substantially well prepared to meet it by surrebuttal as if the testimony had
been offered in chief, and (3) the opposite party upon request therefor is given the
opportunity to reply by surrebuttal.”).
Crenshaw v. State, 513 So. 2d 898, 900 (Miss. 1987) (“The purpose of an opening
statement is to inform the jury what a party to the litigation expects the proof to show.
Sometimes the proof does not follow the expectations of the party's attorney in opening
statement and, if so, that failure usually militates against the party.”).
Trunell v. State, 487 So. 2d 820, 826 (Miss. 1986) (“Trunell had a constitutional right to
make an opening statement without impingement of his constitutional guaranty against
self-incrimination, which was denied him by the trial court. Our law does not require a
defendant to make a choice between proceeding pro se and exercising his constitutional
right against self-incrimination. He may conduct his entire defense without ever being
sworn in or being subject to any cross-examination.”).
Clemons v. State, 320 So. 2d 368, 371-72 (Miss. 1975) (“So long as counsel in his
address to the jury keeps fairly within the evidence *372 and the issues involved, wide
latitude of discussion is allowed; but, when he departs entirely from the evidence in his
argument, or makes statements intended sloely to excite the passions or prejudices of the
jury, or makes inflammatory and damaging statements of fact not found in the evidence,
the trial judge should intervene to prevent an unfair argument. Moreover, this Court will
not withhold a reversal where such statements are so inflammatory (in the judgment of
this court) as to influence the verdict of the jury, and thus prevent a fair trial.”).
MRCrP 24.1 Time and form of verdict:
When the jurors have agreed upon a verdict they shall be returned to the courtroom by the
bailiff(s). The court shall ask the foreperson or the jury panel whether an agreement has
been reached on a verdict. If the foreperson or the jury panel answers in the affirmative,
the judge shall call upon the foreperson or any member of the panel to deliver the verdict,
in writing, to the clerk or the court. The verdict of the jury shall be unanimous, but need
not be signed. The court shall examine the verdict and, if found to be in proper order, the
clerk or the court then shall read the verdict in open court in the presence of the jury. If
neither party nor the court desires to poll the jury, or when a poll of the jury reveals the
verdict is unanimous, and if the verdict is in the form required by Rule 24.3, the court
shall order the verdict filed and entered of record. The court then shall discharge the
jurors, unless a bifurcated hearing is necessary.
MRCrP 25.1 Motion for a new trial:
(a) Motion by Defendant. The court, on written motion of the defendant, may vacate any
judgment and grant a new trial for the grounds set forth in section (b).
(b) Grounds. The court may grant a new trial for any of the following reasons:
(1) if required in the interests of justice;
(2) if the verdict is contrary to law or the weight of the evidence;
(3) if new and material evidence has recently been discovered which probably would
produce a different result at a new trial and, by reasonable diligence, such evidence could
not have been discovered sooner;
(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 on the verdict, separated without leave of
court;
(6) if the court has misdirected the jury in a material matter of law, or has failed to
instruct the jury on all questions of law necessary for their guidance; or
(7) if, for any other reason, the defendant has not received a fair and impartial trial.
(c) Timeliness. A motion for a new trial shall be made within ten (10) days after entry of
judgment (which, for purposes of this Rule, includes both adjudication of guilt and
sentence). Upon good cause shown, the court may grant a reasonable extension thereof.
(d) Court's Own Motion. The court may, on its own motion and with the consent of the
defendant and notice to the prosecuting attorney, order a new trial before the entry of
judgment.
MRCrP 25.2 Motion to vacate judgment:
(a) Power of the Court. The court, on motion of a defendant or on its own motion, may
vacate judgment and dismiss the case without prejudice if the indictment or charging
affidavit did not charge an offense, or if the court was without jurisdiction.
(b) Timeliness. A motion to vacate judgment shall be filed within ten (10) days after entry
of judgment. The court may act on its own motion in vacating judgment only during the
period in which a motion to vacate judgment would be timely.
MRCrP 25.3 Denial by operation of law:
A motion for a new trial or a motion to vacate judgment pending thirty (30) days after
entry of judgment shall be deemed denied as of the thirtieth (30th) day after the motion
was filed. However, the parties may agree in writing, or the court may order, that the
motion be continued past the thirtieth (30th) day to a date certain within ninety (90) days
after the motion was filed; any motion still pending after the date to which it is continued
shall be deemed denied as of that date. The motion may be continued from time to time as
provided in this Rule.
MRCrP 25.4 Clerical and technical errors:
After giving notice to the State and the defendant, the court may correct a clerical error in
a judgment or order, correct an error in the record arising from oversight or omission, or
correct a sentence that resulted from arithmetical, technical, or other clear error.
822 TRIAL IN ABSENTIA
§ 99-17-9 When judge may hold trial in absentia:
In criminal cases the presence of the prisoner may be waived (a) if the defendant
is in custody and consenting thereto, or (b) is on recognizance or bail, has been
arrested and escaped, or has been notified in writing by the proper officer of the
pendency of the indictment against him, and resisted or fled, or refused to be
taken, or is in any way in default for nonappearance, the trial may progress at the
discretion of the court, and judgment made final and sentence awarded as though
such defendant were personally present in court.
See also In re Chisolm, 837 So. 2d 183, 190 (Miss. 2003) (“Chisolm was not improperly
tried in absentia, as the statute contains an exception for a trial in the absence of a
defendant who has been charged with a misdemeanor offense and is properly notified of
the setting and chooses not to appear.”); Barksdale v. State, 176 So. 3d 108, 111 (Miss.
Ct. App. 2015) (“Because Barksdale was released on bond pending trial and was in
default for nonappearance, it was not plain error to conduct his trial in absentia. He was
well aware of his trial date, understood he had to be at trial, and offers no proof that his
absence was not willful, voluntary, and deliberate.”); Lott v. City of Bay Springs, 960 So.
2d 525, 527 (Miss. Ct. App. 2007) (“Lott’s uniform traffic ticket clearly stated that his
case would be heard in the Municipal Court of the City of Bay Springs on August 2,
2004, at 9:00 a.m. On that date the court did in fact hear his case . . . Lott’s voluntary
absence, be it as a result of a conscience decision not to attend or confusion over the
correct court date brought about by statements from his family, cannot be cured by this
Court.”).
Mississippi Attorney General’s opinions:
Effect on bail bond.
“This office remains of the opinion that the finding of guilt in absentia does not release
the surety or discharge the bond.” Op. Atty. Gen. Shirley, June 15, 2013.
Issuing a capias if defendant convicted in absentia.
“[If] the defendant has [been] convicted [in absentia] the proper method to bring the
defendant before the court to receive judgment would be by the serving of a capias
(technically a capias ad audiendum judicium, which is a writ issued to bring a defendant
found guilty of a misdemeanor before the court to receive sentence).” Op. Atty. Gen.
Turnage, December 10, 2004.
When issuance of a capias is proper.
“[A] capias . . . may be issued for a person who has already been convicted demanding
his appearance before the court to receive judgment or it may be issued for the arrest of a
person prior to a trial demanding he answer or defend himself against criminal charges.”
Op. Atty. Gen. Nowak, June 6, 2003.
Traffic tickets may be tried in absentia.
“[A]n individual may be tried in absentia on a traffic ticket if the individual has been
provided proper notice of the date for the appearance and trial and fails to appear or make
other arrangements. Please note that the officer who wrote the ticket must also be present
to testify about the offense. The traffic ticket alone in not sufficient to convict an
individual of a traffic offense.” Op. Atty. Gen. Arnold, January 11, 2002.
823 DOUBLE JEOPARDY
Fifth Amendment:
[N]or shall any person be subject for the same offence to be twice put in jeopardy
of life or limb;
See also Miss. Const. art. III § 22 (“No person's life or liberty shall be twice placed in
jeopardy for the same offense; but there must be an actual acquittal or conviction on the
merits to bar another prosecution.”).
Double jeopardy protections:
Double jeopardy embodies three separate constitutional protections:
It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same offense
after conviction. And it protects against multiple punishments for the
same offense.
Thomas v. State, 711 So. 2d 867, 870 (Miss. 1998).
See also United States v. Dinitz, 424 U.S. 600, 606 (1976) (“The Double Jeopardy Clause
of the Fifth Amendment protects a defendant in a criminal proceeding against multiple
punishments or repeated prosecutions for the same offense.”); Wallace v. State, 607 So.
2d 1184, 1187 (Miss. 1992) (“Where a guilty plea is accepted and a suspended sentence is
imposed, the court cannot later impose a period of incarceration exceeding the original
suspended sentence where the defendant fails to maintain a standard of good behavior. To
do so would expose the defendant to double jeopardy.”).
When jeopardy attaches:
Jeopardy does not attach until a defendant is put to trial before a jury or a judge. See
Serfass v. United States, 420 U.S. 377, 388 (1974). That is,
C when the jury is sworn and empaneled to hear the case. See McGraw v. State, 688
So. 2d 764, 767 (Miss. 1997); or
C in a bench trial when the first witness is sworn. See King v. State, 527 So. 2d 641,
643 (Miss. 1988).
In other words, a defendant must first suffer actual jeopardy to avail on a claim of double
jeopardy:
[J]eopardy had not attached when the municipal court dismissed Deed's
DUI charge in the Olive branch Municipal Court. It is undisputed that the
municipal judge received no evidence and heard no witnesses before
dismissing the DUI charge. Stated otherwise, Deeds was never “put to trial
before the trier of facts” before the charge was dismissed.
Deeds v. State, 27 So. 3d 1135, 1139 (Miss. 2009).
See also Levario v. State, 90 So. 3d 608, 612 (Miss. 2012) (“Because the justice court had
no jurisdiction for its conviction of Levario, that conviction did not preclude the State
from indicting and prosecuting Levario in circuit court for felony DUI Causing Death.”);
Lee v. State, 759 So. 2d 390, 393 (Miss. 2000) (“Probable cause is neither tantamount or
necessary to that process.”); Thomas v. State, 845 So. 2d 751, 753 (Miss. Ct. App. 2003)
(“[A] petition to revoke probation or to revoke suspension of a sentence is not a criminal
case and not a trial on the merits of the case. Therefore, double jeopardy protection does
not apply to such hearings.”).
Mississippi Attorney General’s opinions:
If traffic ticket is dismissed due to lack of jurisdiction.
“[I]f a court grants a motion to dismiss a traffic ticket due to lack of jurisdiction, the
officer may issue a new traffic citation and serve it upon the defendant since jeopardy
never attached in the prior charge.” Op. Atty. Gen. Nowak, January 10, 2003.
“Same elements” test:
The following test is used to determine whether a second prosecution is precluded by the
double jeopardy prohibition:
A single act may be an offense against two statutes; and if each statute
requires proof of an additional fact which the other does not, an acquittal
or conviction under either statute does not exempt the defendant from
prosecution and punishment under the other.
Blockburger v. United States, 284 U.S. 299, 304 (1932).
In other words, the double jeopardy prohibition does not apply if each crime contains at
least one element the other lacks. See United States v. Dixon, 509 U.S. 688, 711 (1993)
(overruled Grady “same conduct” test); Brown v. State, 731 So. 2d 595, 599 (Miss. 1999)
(“The test for determining whether a defendant has been subjected to double jeopardy is
the “same elements” test as set out in Blockburger . . . .”); Cook v. State, 671 So. 2d
1327, 1331 (Miss. 1996) (“However, when the two crimes are conspiracies, the test may
not be the ‘Blockburger test.’”).
Separate acts constituting separate crimes:
Separate acts though committed close in point of time to one another may constitute
separate criminal offenses. In such cases, the double jeopardy prohibition does not apply.
See Clemons v. State, 482 So. 2d 1102, 1106-07 (Miss. 1985) (double jeopardy
prohibition did not apply to two separate cocaine purchases); Pharr v. State, 465 So. 2d
294, 300 (Miss. 1984) (double jeopardy prohibition did not apply to three separate acts of
headlighting deer); Cox v. State, 134 So. 3d 712, 715 (Miss. 2014) (“[D]ouble jeopardy
attaches only as to that particular offense and sentence, not subsequent crimes.”).
Applicability to DUI and traffic offenses:
Blockburger “same elements” test is applicable to DUI and traffic offenses. See Lee v.
State, 759 So. 2d 390, 393 (Miss. 2000) (“[I]t can be readily seen that proof of reckless
driving is not necessary to prove felony DUI or felony murder.”); Smith v. State, 736 So.
2d 381, 383 (Miss. Ct. App. 1999) (“Clearly, under the authority of Blockburger, the
three crimes at issue [i.e., first offense DUI, second offense DUI, and felony DUI] in this
assignment of error are separate and distinct. . . . Although the three statutory [offenses]
are similar in that they all require proof that the defendant operated a vehicle while under
the influence of intoxicants, they also differ in that each . . . requires proof of an
additional element.”).
Applicability to mistrials:
The double jeopardy prohibition does not mean that every time a trial aborts or does not
end with a final judgment the defendant must be set free. However, if a mistrial is
granted upon the court's own motion, or upon the state's motion, a second trial is barred
because of double jeopardy unless there was a manifest necessity for the mistrial, taking
into consideration all the circumstances. Some examples of manifest necessity are:
C failure of a jury to agree on a verdict,
C biased jurors,
C an otherwise tainted jury,
C improper separation of jury,
C when jurors demonstrate their unwillingness to abide by the instructions of the
court.
Watts v. State, 492 So. 2d 1281, 1284 (Miss. 1986).
See also United States v. Dinitz, 424 U.S. 600, 611 (1976) (“The Double Jeopardy Clause
does protect a defendant against governmental actions intended to provoke mistrial
requests and thereby to subject defendants to the substantial burdens imposed by multiple
prosecutions.”); Roberson v. State, 856 So. 2d 532, 535 (Miss. Ct. App. 2003) (“There
was no persuasive evidence that the State intended to ‘goad’ or ‘provoke’ Roberson into
seeking a mistrial.”).
Civil sanctions ordinarily not applicable:
The following two-step approached is used to determine if the sanction imposed rises to
the level of criminal punishment:
1. Did the legislature, in establishing the penalizing mechanism, indicated either
expressly or impliedly a preference for one label or the other?
2. If legislature indicated an intention to establish a civil penalty - Was the statutory
scheme so punitive either in purpose or effect as to negate that intention?
See Hudson v. U.S., 522 U.S. 93, 99 (1997).
Administrative driver’s license suspension, even though it may have punitive aspects, is
viewed as a remedial measure. See Keyes v. State, 708 So. 2d 540, 548 (Miss. 1998)
(“[T]he Double Jeopardy Clauses of the United States and Mississippi Constitutions do
not preclude criminal prosecution for violation of Miss. Code Ann. § 63-11-30
subsequent to administrative license suspension pursuant to § 63-11-23(2).”).
824 MISTRIAL
MRCrP 23.5 Mistrials:
Upon motion of any party, the court may declare a mistrial if there occurs during the trial,
either inside or outside the courtroom, misconduct by a party, a party's attorney(s), or
someone acting at the behest of a party or a party's attorney(s), resulting in substantial and
irreparable prejudice to the movant's case.
Upon motion of a party or its own motion, the court may declare a mistrial if:
(a) The trial cannot proceed in conformity with the law; or
(b) It appears there is no reasonable probability of the jury's agreement upon a verdict.
825 LAWS PERTAINING TO CHILDREN
U.R.Y.C.P. 11 When an arrest warrant for a child is prohibited:
Comments & Procedures to 11(a)(1):
Justice and municipal courts may not issue an order to take a child into custody, or an
arrest warrant, for any child within the exclusive original jurisdiction of the youth court.
Such is not applicable to offenses outside the exclusive original jurisdiction of the youth
court, e.g., hunting, fishing or traffic violations. See White v. Walker, 950 F.2d 972, 979
(5th Cir. 1991). However, in those instances, the custody of the child must comply with
all state and federal laws pertaining to the detention of juveniles. See U.R.Y.C.P. 19(c).
When a child is convicted of a misdemeanor offense by a criminal court having original
jurisdiction of the misdemeanor charge and the sentence includes that the child is to be
committed to, incarcerated in or imprisoned in a jail or other place of detention, the
commencement of such commitment, incarceration or imprisonment in a jail or other
place of detention is stayed until the criminal court has notified the youth court judge or
the judge's designee of the conviction and sentence.
U.R.Y.C.P. 19 Detention restrictions:
Any child who is charged with a hunting or fishing violation, a traffic violation, a
violation of the Mississippi Implied Consent Law, or any other criminal offense for which
the youth court shall have power on its own motion to remove jurisdiction from any
criminal court, may be detained only in the same juvenile facilities designated by the
youth court for children within the jurisdiction of the youth court.
U.R.Y.C.P. 23 Removal by the youth court:
(c) Removal by the youth court of certain criminal misdemeanor offenses. Unless the
cause has been transferred, or unless the child has previously been the subject of a
transfer from the youth court to the circuit court for trial as an adult and was convicted,
the youth court shall have power on its own motion to remove jurisdiction from any
criminal court of any offense including a hunting or fishing violation, a traffic violation, a
violation of the Mississippi Implied Consent Law, or a violation of section 67-3-70 of the
Mississippi Code, committed by a child in a matter under the jurisdiction of the youth
court and proceed therewith in accordance with the provisions of the Mississippi Youth
Court Law. Such does not apply to a youth who has a pending charge or a conviction for
any crime over which circuit court has original jurisdiction.
U.R.Y.C.P. 23 When youth court may stay execution of sentence:
(d) Stay of execution by the youth court of certain criminal misdemeanor offenses. After
conviction and sentence of any child by any court having original jurisdiction on a
misdemeanor charge, and within the time allowed for an appeal of such conviction and
sentence, the youth court of the county shall have the full power to stay the execution of
the sentence and to release the child on good behavior or on other order as the youth court
may see fit to make unless the child has previously been the subject of a transfer from the
youth court to the circuit court for trial as an adult and was convicted. When a child is
convicted of a misdemeanor and is committed to, incarcerated in or imprisoned in a jail or
other place of detention by a criminal court having proper jurisdiction of such charge,
such court shall notify the youth court judge or the judge's designee of the conviction and
sentence prior to the commencement of such incarceration.
§ 43-21-159
(1) . . . In cases where the child is charged with a hunting or fishing violation or a traffic
violation, whether it be any state or federal law, a violation of the Mississippi Implied
Consent Law, or municipal ordinance or county resolution, or where the child is charged
with a violation of Section 67–3–70, the appropriate criminal court shall proceed to
dispose of the same in the same manner as for other adult offenders and it shall not be
necessary to transfer the case to the youth court of the county. However, unless the cause
has been transferred, or unless the child has previously been the subject of a transfer from
the youth court to the circuit court for trial as an adult and was convicted, the youth court
shall have power on its own motion to remove jurisdiction from any criminal court of any
offense including a hunting or fishing violation, a traffic violation, a violation of the
Mississippi Implied Consent Law, or a violation of Section 67–3–70, committed by a
child in a matter under the jurisdiction of the youth court and proceed therewith in
accordance with the provisions of this chapter.
. . .
(3) Nothing in subsection (1) or (2) shall apply to a youth who has a pending charge or a
conviction for any crime over which circuit court has original jurisdiction.
826 VICTIMS’ RIGHTS
See CHAPTER 25 “VICTIMS’ RIGHTS.”
Blank page
CHAPTER 9
SENTENCING
900 RULES ON SENTENCING
Definitions; scope
Judgment; time
Presentence report
Sentencing hearing
Pronouncement of judgment and sentence
Fine, restitution, and/or court costs following adjudication of guilt
Consecutive or concurrent sentences
Entry of judgment of conviction and sentence
901 STATUTES ON SENTENCING
Required hearing before incarcerating a defendant for nonpayment of a fine,
restitution, or court costs
Public service project as alternative to a fine or jail
Suspension of sentence
Violation of terms of suspended sentence
Vacation of suspension or conditional pardon
Weekend and intermittent sentences
Commitment and confinement
Traffic violations for which another penalty is not provided
Ordering the payment of fines
Consecutive or concurrent sentences
Credit for jail time served
If penalty is not provided elsewhere by statute
Misdemeanor bonds
902 WITHHOLDING ACCEPTANCE OF PLEA PENDING SUCCESSFUL
COMPLETION OF CONDITIONS
Eligibility for release after successful completion of conditions
Conditions which may be imposed
When judge is to release bail bond
When cause may be dismissed
Petition for expungement
903 RESTITUTION
For pecuniary damages
Factors the court shall take into account
Defendant’s right to be heard on issue of restitution
If restitution is inappropriate or undesirable
Terms of payment
As a condition of probation or suspended sentence
Right to bring civil action not limited or impaired
904 ENHANCED SENTENCES
905 EXPUNGING OF MISDEMEANOR CONVICTION
Expungement under § 21-23-7
Expungement under § 99-19-71
Reporting the expunged conviction
906 STATE ASSESSMENTS
907 MUNICIPAL COURT COSTS
Allowable costs
Payments to marshals and constables:
Laboratory analysis fee
Enrolling fines, costs, forfeitures and other penalties
908 APPLICABILITY OF SECTIONS 21-23-1 THROUGH 21-23-19
900 RULES ON SENTENCING
MRCrP 26.1 Definitions; scope:
(a) Determination of Guilt. The term “determination of guilt” means a verdict of guilty by
a jury, a finding of guilt by a court following a non-jury trial, or the acceptance by the
court of a plea of guilty or nolo contendere.
(b) Judgment. The term “judgment” means the adjudication of the court based on the
verdict of the jury, the plea of the defendant of guilty or nolo contendere, or on its own
finding following a non-jury trial, that the defendant is guilty or not guilty. The term
“judgment” may include both determination of guilt and sentence.
(c) Sentence. The term “sentence” means the pronouncement by the court of the penalty
imposed upon the defendant after an adjudication of guilt.
(d) Scope. Rule 26 shall apply to death penalty cases only to the extent that a procedure is
not otherwise provided.
MRCrP 26.2 Judgment; time:
(a) On Acquittal. When a defendant is acquitted of any charge, judgment pertaining to
that charge shall be pronounced and entered immediately.
(b) On Conviction.
(1) On a determination of guilt on any charge, judgment pertaining to that charge shall be
pronounced and entered together with the sentence.
(2) On a determination of guilt, the court shall, after receipt of the presentence report
(unless a presentence report is not required), set a date for sentencing.
(3) Sentence shall be imposed without unreasonable delay.
MRCrP 26.3 Presentence report:
(a) In General. A presentence investigation may be conducted and a report thereof shall
be made as required for cases where the court has discretion in imposition of sentence.
Contents of this report shall be disclosed only to the parties. A copy of said report shall be
delivered to both the prosecutor and the defendant or the defense attorney within 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 presentence report which the
party intends to controvert by the production of evidence.
(b) Content. The presentence report 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, or juvenile adjudications of
delinquency;
(3) a statement considering the economic, physical, and psychological impact of the
offense on the victim and the victim's immediate family;
(4) the defendant's financial condition;
(5) the defendant's educational background;
(6) a description of the defendant's employment background, including any military
record and present employment status and capabilities;
(7) the social history of the defendant, including family relationships, marital status,
residence history, and alcohol or drag use;
(8) information about environments to which the defendant might return or to which the
defendant could be sent should probation be granted;
(9) information about special resources which might be available to assist the defendant,
such as treatment centers, rehabilitative programs, or vocational training centers;
(10) a physical and mental examination of the defendant, if ordered by the court; and
(11) any other information required by the court.
(c) Excluded Content. The report shall not include:
(1) sources of information obtained on a promise of confidentiality; or
(2) information which would disrupt an existing police investigation.
(d) Special Duty of the Prosecuting Attorney. The prosecuting attorney shall disclose to
the defendant any information within the prosecuting attorney's possession or control, not
already disclosed, which would tend to reduce the punishment to be imposed.
MRCrP 26.4 Sentencing hearing:
(a) Generally. If the court has either discretion as to the penalty to be imposed or power to
suspend execution of the sentence, the court shall conduct a sentencing hearing in all
felony cases, unless waived by the parties with consent of the court. The sentencing
hearing may commence immediately after a determination of guilt or may be continued to
a later date. If a presentence report is required, the sentencing hearing shall not be
conducted until copies thereof have been furnished or made available to the court and the
parties.
(b) Enhanced Punishment Based on Prior Conviction(s). Absent stipulation, the court
shall hold a hearing in order to establish the alleged prior conviction(s) to determine the
defendant's status as a habitual or enhanced offender. The prosecution must establish the
defendant's prior conviction(s) beyond a reasonable doubt. If the defendant disputes any
conviction presented by the prosecution, the court may allow the prosecution to present
additional evidence of the disputed conviction.
(c) Evidence. Evidence may be presented by both the prosecuting attorney and the
defendant as to any matter that the court deems probative on the issue of sentencing.
MRCrP 26.5 Pronouncement of judgment and sentence:
(a) Pronouncement of Judgment. The judgment shall be pronounced in open court at any
time after conviction, in the presence of the defendant (unless waived pursuant to Rule
10.1(b)), and recorded in the minutes of the court. If the defendant is found not guilty or
for any other reason is entitled to be discharged, judgment shall be entered accordingly.
(b) Pronouncement of Sentence. In pronouncing sentence, the court shall:
(1) afford the defendant an opportunity, personally and/or through the defendant's
attorney, to make a statement on the defendant's behalf before imposing sentence;
(2) state that a credit will be allowed on the sentence, as provided by law, for time during
which the defendant has been incarcerated on the present offense; and
(3) explain to the defendant the terms of the sentence.
MRCrP 26.6 Fine, restitution, and/or court costs following adjudication of guilt:
(a) Scope. Rule 26.6 applies only following a determination of guilt and, therefore has no
applicability to pretrial diversion, non-adjudication, and the like.
(b) Method of Payment; Installments. When the defendant is sentenced to pay a fine,
restitution, and/or court costs, the court may permit payment to be made within a
specified period of time or in specified installments. Restitution shall be payable as
promptly as possible, taking into account the defendant's indigency or economic ability to
pay.
(c) Method of Payment; To Whom. Unless the court expressly directs otherwise:
(1) the payment of a fine, restitution, and/or court costs shall be made to the clerk of
court; and
(2) monies received from the defendant shall be applied as follows:
(A) first, to pay any and all court costs (as designated by statute) assessed against the
defendant;
(B) second, to pay any restitution the defendant has been ordered to make; and
(C) third, to pay any fines imposed against the defendant.
The clerk shall, as promptly as practicable, forward restitution payments to the victim.
(d) Court Action upon Failure of Defendant to Pay Fine, Restitution, and/or Court Costs.
Upon the defendant's failure to pay a fine, restitution, and/or court costs, the court first
must require the defendant to appear and show cause why said defendant should not be
held in contempt of court. A summons requiring the defendant's appearance shall be
personally served on the defendant and shall set forth the time and location of the hearing.
If the defendant fails to appear, the court may issue a warrant for the defendant's arrest.
During the hearing, the court shall inquire and cause an investigation to be made into the
reasons for nonpayment, including whether nonpayment was willful or due to indigency
or economic inability to pay. In that review:
(1) If it appears to the satisfaction of the court that nonpayment is not willful, the court
shall enter an order allowing the defendant additional time for payment, reducing the
amount thereof or of each installment, or revoking the fine or order of restitution or the
unpaid portion thereof in whole or in part.
(2) If the court finds nonpayment is willful and finds the defendant in contempt of court,
the court may direct that the defendant be incarcerated until the unpaid obligation is paid,
subject, however, to section (e).
(e) Incarceration for Nonpayment of Fine, Restitution, and/or Court Costs.
(1) Incarceration shall not automatically follow the nonpayment of a fine, restitution,
and/or court costs. Incarceration may be employed only after the court has conducted a
hearing and examined the reasons for nonpayment and finds, on the record, that the
defendant could have made payment but refused to do so. In justice and municipal court,
such finding shall be included in the court's order.
(2) After consideration of the defendant's situation, means, and conduct with regard to the
nonpayment, the court shall determine the period of any incarceration, subject to the
limitations set by statute.
(3) If, at the time the fine, restitution and/or court costs was ordered, a sentence of
incarceration was also imposed, the aggregate of the period of incarceration imposed
pursuant to this Rule and the term of the sentence originally imposed may not exceed the
maximum term of imprisonment authorized for the offense.
MRCrP 26.7 Consecutive or concurrent sentences:
Unless otherwise provided by law, the court may direct that the sentence being imposed
will be served concurrently with, or consecutively to, any other sentence previously or
simultaneously imposed upon the defendant by any court. When sentencing orders are
silent, sentences shall run concurrently.
MRCrP 26.8 Entry of judgment of conviction and sentence:
(a) Entry of Judgment and Sentence. The judgment is complete and valid upon its entry in
the minutes.
(b) Entry of Order and Duty of Clerk. Immediately upon entry of an order or judgment of
the court, the clerk of the court shall make a diligent effort to assure that all attorneys of
record have received notice of the entry of the order or judgment.
901 STATUTES ON SENTENCING
§ 99-19-20.1. Required hearing before incarcerating a defendant for nonpayment of
a fine, restitution, or court costs:
(1) Incarceration shall not automatically follow the nonpayment of a fine, restitution or
court costs. Incarceration may be employed only after the court has conducted a hearing
and examined the reasons for nonpayment and finds, on the record, that the defendant
was not indigent or could have made payment but refused to do so. When determining
whether a person is indigent, the court shall use the current Federal Poverty Guidelines
and there shall be a presumption of indigence when a defendant's income is at or below
one hundred twenty-five percent (125%) of the Federal Poverty Guidelines, subject to a
review of his or her assets. A defendant at or below one hundred twenty-five percent
(125%) of the Federal Poverty Guidelines without substantial liquid assets available to
pay fines, fees, and costs shall be deemed indigent. In determining whether a defendant
has substantial liquid assets, the judge shall not consider up to Ten Thousand Dollars
($10,000.00) in tangible personal property, including motor vehicles, household goods, or
any other assets exempted from seizure under execution or attachment as provided under
Section 85–3–1. If the defendant is above one hundred twenty-five percent (125%) of the
Federal Poverty Guidelines, the judge shall make an individualized assessment of his or
her ability to pay based on the totality of the circumstances including, but not limited to,
the defendant's disposable income, financial obligations and liquid assets. If the judge
determines that a defendant who claims indigence is not indigent and the defendant could
have made payment but refused to do so, the case file shall include a written explanation
of the basis for the determination of the judge. In justice and municipal court, such
finding shall be included in the court's order.
(2) If it appears to the satisfaction of the court that nonpayment is not willful, the court
shall enter an order that allows the defendant additional time for payment, reduces the
amount of each installment, revokes the fine, in whole or in part, or allows the defendant
to perform community service at the state minimum wage per hour rate. If the court finds
nonpayment is willful after consideration of the defendant's situation, means, and conduct
with regard to the nonpayment, the court shall determine the period of incarceration, if
any, subject to the limitations set by law and subsection (3) of this section.
(3) If at the time the fine, restitution or court cost is ordered, a sentence of incarceration is
also imposed, the aggregate total of the period of incarceration imposed pursuant to this
section and the term of the sentence originally imposed may not exceed the maximum
term of imprisonment authorized for the offense.
(4) A minor who is to serve as a confidential informant must be notified that the minor
has the right to contact one (1) or both parents.
§ 21-23-7 Public service project as alternative to a fine or jail:
(2) In the discretion of the court, where the objects of justice would be more likely met, as
an alternative to imposition or payment of fine and/or incarceration, the municipal judge
shall have the power to sentence convicted offenders to work on a public service project
where the court has established such a program of public service by written guidelines
filed with the clerk for public record. Such programs shall provide for reasonable
supervision of the offender and the work shall be commensurate with the fine and/or
incarceration that would have ordinarily been imposed. Such program of public service
may be utilized in the implementation of the provisions of Section 99-19-20, and public
service work thereunder may be supervised by persons other than the sheriff.
Mississippi Attorney General’s opinions:
Establishment of work program allowed under Section 21-23-7.
“Section 21-23-7 allows establishment of a work program, usually for people who are not
incarcerated.” Op. Atty. Gen. Nowak, July 28, 2006.
§ 21-23-7 Suspension of sentence:
(5) The municipal judge of any municipality is hereby authorized to suspend the sentence
and to suspend the execution of the sentence, or any part thereof, on such terms as may be
imposed by the municipal judge. However, the suspension of imposition or execution of a
sentence hereunder may not be revoked after a period of two (2) years. The municipal
judge shall have the power to establish and operate a probation program, dispute
resolution program and other practices or procedures appropriate to the judiciary and
designed to aid in the administration of justice. Any such program shall be established by
the court with written policies and procedures filed with the clerk of the court for public
record. Subsequent to original sentencing, the municipal judge, in misdemeanor cases, is
hereby authorized to suspend sentence and to suspend the execution of a sentence, or any
part thereof, on such terms as may be imposed by the municipal judge, if (a) the judge or
his or her predecessor was authorized to order such suspension when the sentence was
originally imposed; and (b) such conviction (i) has not been appealed; or (ii) has been
appealed and the appeal has been voluntarily dismissed.
Mississippi Attorney General’s opinions:
When municipal judge may suspend fines.
“[T]he municipal judge may enter a blanket order authorizing partial suspension of fines
if the order and cases meet the requirements of . . . Section 21-23-7(5) . . . It should be
noted that state assessments may not be suspended if the court imposes any fine or other
penalty, absent specific statutory authority.” Op. Atty. Gen. Nowak, August 26, 2011.
Counseling as a condition of a suspended sentence.
“Can a judge order a defendant to counseling? Response: No. [But under Section 21-23-7
(5),] a judge may suspend a sentence or portion thereof conditioned upon the defendant
receiving counseling.” Op. Atty. Gen. Haynes, January 19, 2010.
Municipal judge may not establish procedures for non-adjudications.
“Section 21-23-7(5) does not empower a municipal court judge to non-adjudicate any
offenses. It provides only that the municipal court judge may suspend a sentence or any
part of that sentence. . . . [A] municipal judge may not, by local rule, establish procedures
for non-adjudications.” Op. Atty. Gen. Dawson, January 23, 2004.
§ 99-19-27 Violation of terms of suspended sentence:
Every convicted offender of a criminal law who receives a parole or suspended sentence
for a definite time, and fails to surrender himself to the proper authority for execution of
sentence on expiration of such parole or suspended sentence, shall be regarded and
treated as an escaped convict and subject as such to arrest and return to the proper
authorities by any officer or citizen who could have made such arrest had such offender
been an ordinary escaped prisoner, and shall be promptly returned to the proper
authorities for execution of sentence.
§ 99-19-29 Vacation of suspension or conditional pardon:
Whenever any court granting a suspended sentence, or the governor granting a pardon,
based on conditions which the offender has violated or failed to observe, shall be
convinced by proper showing, of such violation of sentence or pardon, then the governor
or the judge of the court granting such suspension of sentence shall be authorized to annul
and vacate such suspended sentence or conditional pardon in vacation or court time. The
convicted offender shall thereafter be subject to arrest and court sentence service, as if no
suspended sentence or conditional pardon had been granted, and shall be required to serve
the full term of the original sentence that has not been served. The offender shall be
subject, after such action by the court or the governor, to arrest and return to proper
authorities as in the case with ordinary escaped prisoner.
§ 21-23-20 Weekend and intermittent sentences:
Upon conviction of any person of a misdemeanor in a municipal court of this state, the
municipal court judge shall be authorized, in his discretion, to sentence such person to:
(a) A period of time in jail to be served either on weekends only;
(b) Other periods of time during the week wherein such offender may not be engaged in
gainful employment; or
(c) A specified number of days in jail with a provision for the release of such offender for
the purpose of engaging in gainful employment at such times as the offender is actually
gainfully employed, whether self-employed or otherwise.
In addition, the court may, in its discretion, sentence any convicted person to split periods
of incarceration; and the court shall not be required to order such offender to serve a
sentence of imprisonment all in one period but may suspend the sentence from time to
time.
§ 47–1–1 Commitment and confinement:
Every convict sentenced to imprisonment in the county jail, or to such imprisonment and
the payment of a fine, or the payment of a fine, shall be committed to jail, and shall
remain in close confinement for the full time specified for imprisonment in the sentence
of the court, and in like confinement, subject to the provisions of Section 99-19-20.1.,
until the fine, costs and jail fees be fully paid, unless discharged in due course of law, or
as hereinafter provided. Subject to the provisions of Section 99-19-20.1., no convict shall
be held in continuous confinement under a conviction for any one (1) offense for failure
to pay fine and costs in such case for a period of more than one (1) year.
§ 63-9-11 Traffic violations for which another penalty is not provided:
(2) Every person convicted of a misdemeanor for a violation of any of the
provisions of [Chapters 3, 5, or 7 of Title 63] for which another penalty is not
provided shall for first conviction thereof be punished by a fine of not more than
One Hundred Dollars ($100.00) or by imprisonment for not more than ten (10)
days; for a second such conviction within one (1) year thereafter such person shall
be punished by a fine of not more than Two Hundred Dollars ($200.00) or by
imprisonment for not more than twenty (20) days or by both such fine and
imprisonment; upon a third or subsequent conviction within one (1) year after the
first conviction such person shall be punished by a fine of not more than Five
Hundred Dollars ($500.00) or by imprisonment for not more than six (6) months
or by both such fine and imprisonment.
§ 99-19-20 Ordering the payment of fines:
(1) Except as otherwise provided under Section 99-19-20.1, when any court
sentences a defendant to pay a fine, the court may order (a) that the fine be paid
immediately, or (b) that the fine be paid in installments to the clerk of the court or
to the judge, if there be no clerk, or (c) that payment of the fine be a condition of
probation, or (d) that the defendant be required to work on public property for
public benefit under the direction of the sheriff for a specific number of hours, or
(e) any combination of the above.
(2) Except as otherwise provided under Section 99-19-20.1, the defendant may be
imprisoned until the fine is paid if the defendant is financially able to pay a fine and the
court so finds, subject to the limitations provided under this section. The defendant shall
not be imprisoned if the defendant is financially unable to pay a fine and so states to the
court in writing, under oath, after sentence is pronounced, and the court so finds, except if
the defendant is financially unable to pay a fine and such defendant failed or refused to
comply with a prior sentence as specified in subsection (1) of this section, the defendant
may be imprisoned.
This subsection shall be limited as follows:
(a) In no event shall such period of imprisonment exceed one (1) day for each One
Hundred Dollars ($100.00) of the fine.
(b) If a sentence of imprisonment, as well as a fine, were imposed, the aggregate of such
term for nonpayment of a fine and the original sentence of imprisonment shall not exceed
the maximum authorized term of imprisonment.
(c) It shall be in the discretion of the judge to determine the rate of the credit to be earned
for work performed under subsection (1)(d), but the rate shall be no lower than the rate of
the highest current federal minimum wage.
(3) Periods of confinement imposed for nonpayment of two (2) or more fines shall run
consecutively unless specified by the court to run concurrently.
See also Daniels v. State, 742 So. 2d 1140, 1145 (Miss. 1999) (“[W]hen a statute is
amended before sentencing and provides for a lesser penalty, the lesser penalty must be
imposed.”).
Mississippi Attorney General’s opinions:
Judge may not order “house arrest” under Section 99-19-20.
“[A] Judge may not order ‘house arrest’ under the provisions of Section 99-19-20. The
statute specifically requires “imprisonment” and offers the Judge no alternative to
“imprisonment” in its sentencing order if the defendant has the ability to pay the fine. The
statute then provides specific means by which the imprisonment may be satisfied. Of
course, the Judge does not have to order imprisonment, but may do so.” Op. Atty. Gen.
Bruni, December 15, 2006.
§ 99-19-21 Consecutive or concurrent sentences:
(1) When a person is sentenced to imprisonment on two (2) or more convictions,
the imprisonment on the second, or each subsequent conviction shall, in the
discretion of the court, commence either at the termination of the imprisonment
for the preceding conviction or run concurrently with the preceding conviction.
See also Thomas v. State, 277 So. 3d 532, 536 (Miss. 2019) (“Determining whether
multiple sentences run concurrently or consecutively is within the trial court's
discretion.”).
§ 99-19-23 Credit for jail time served:
The number of days spent by a prisoner in incarceration in any municipal or
county jail while awaiting trial on a criminal charge, or awaiting an appeal to a
higher court upon conviction, shall be applied on any sentence rendered by a court
of law or on any sentence finally set after all avenues of appeal are exhausted.
See also Foster v. Durr, 123 So. 3d 940, 941 (Miss. Ct. App. 2013) (“[Section 99–19–23]
states that a prisoner shall receive credit for the number of days incarcerated in municipal
or county jail while awaiting trial on a criminal charge or appeal to a higher court after
conviction. However, this Court clarified in Stanley v. State, 850 So. 2d 154, 157 (Miss.
Ct. App. 2003), that ‘a prisoner actually serving time for another conviction is not, within
the meaning of [s]ection 99–19–23, being held to await trial.’”).
§ 99-19-31 If penalty is not provided elsewhere by statute:
Offenses for which a penalty is not provided elsewhere by statute, and offenses
indictable at common law, and for which a statutory penalty is not elsewhere
prescribed, shall be punished by fine of not more than one thousand dollars
($1,000.00) and imprisonment in the county jail not more than six (6) months, or
either.
§ 99-23-27 Misdemeanor bonds:
Every court before which any person shall be convicted of an offense less than a
felony may, in addition to the penalty prescribed by law, require the convict to
enter into bond in a reasonable sum, with or without sureties, to keep the peace
and to be of good behavior for any time not longer than two years, and may order
him to stand committed until such bond be executed; and for any breach thereof it
may be proceeded on by scire facias as in other cases.
Mississippi Attorney General’s opinions:
Peace bonds in municipal court.
“Notwithstanding the above language [of section 99-23-27], it is the opinion of this office
that a municipal judge has no authority to order peace bonds, in that the municipal courts
are restricted to those specific powers and duties set out in Section 21-23-7 of the
Mississippi Code, 1972, as amended.” Op. Atty. Gen. Tiffee, January 28, 1982
902 WITHHOLDING ACCEPTANCE OF PLEA PENDING SUCCESSFUL
COMPLETION OF CONDITIONS
§ 99-15-26 Eligibility for release after successful completion of conditions:
(1)(a) In all criminal cases, felony and misdemeanor, other than crimes against the person,
a crime of violence as defined in Section 97–3–2, a violation of Section 97–11–31 or
crimes in which a person unlawfully takes, obtains or misappropriates funds received by
or entrusted to the person by virtue of his or her public office or employment, the circuit
or county court shall be empowered, upon the entry of a plea of guilty by a criminal
defendant made on or after July 1, 2014, to withhold acceptance of the plea and sentence
thereon pending successful completion of such conditions as may be imposed by the court
pursuant to subsection (2) of this section.
(b) In all misdemeanor criminal cases, other than crimes against the person, the justice or
municipal court shall be empowered, upon the entry of a plea of guilty by a criminal
defendant, to withhold acceptance of the plea and sentence thereon pending successful
completion of such conditions as may be imposed by the court pursuant to subsection (2)
of this section.
(c) Notwithstanding paragraph (a) of this subsection (1), in all criminal cases charging a
misdemeanor of domestic violence as defined in Section 99–3–7(5), a circuit, county,
justice or municipal court shall be empowered, upon the entry of a plea of guilty by the
criminal defendant, to withhold acceptance of the plea and sentence thereon pending
successful completion of such conditions as may be imposed by the court pursuant to
subsection (2) of this section.
(d) No person having previously qualified under the provisions of this section shall be
eligible to qualify for release in accordance with this section for a repeat offense. A
person shall not be eligible to qualify for release in accordance with this section if
charged with the offense of trafficking of a controlled substance as provided in Section
41–29–139(f) or if charged with an offense under the Mississippi Implied Consent Law.
41 Violations under the Mississippi Implied Consent Law can only be nonadjudicated
under the provisions of Section 63-11-30.
§ 99-15-26 Conditions which may be imposed:
(2)(a) Conditions which the circuit, county, justice or municipal court may impose under
subsection (1) of this section shall consist of:
(i) Reasonable restitution to the victim of the crime.
(ii) Performance of not more than nine hundred sixty (960) hours of public service work
approved by the court.
(iii) Payment of a fine not to exceed the statutory limit.
(iv) Successful completion of drug, alcohol, psychological or psychiatric treatment,
successful completion of a program designed to bring about the cessation of domestic
abuse, or any combination thereof, if the court deems treatment necessary.
(v) . . . The justice or municipal court, in its discretion, may require the defendant to
remain in the program subject to good behavior for a period of time not to exceed two (2)
years.
§ 99-15-26 When judge is to release bail bond:
(3) When the court has imposed upon the defendant the conditions set out in this
section, the court shall release the bail bond, if any.
§ 99-15-26 When cause may be dismissed:
(4) Upon successful completion of the court-imposed conditions permitted by
subsection (2) of this section, the court shall direct that the cause be dismissed and
the case be closed.
§ 99-15-26 Petition for expungement:
(5) Upon petition therefor, the court shall expunge the record of any case in which an
arrest was made, the person arrested was released and the case was dismissed or the
charges were dropped, there was no disposition of such case, or the person was found not
guilty at trial.
903 RESTITUTION
§ 99-37-3 For pecuniary damages:
(1) When a person is convicted of criminal activities which have resulted in
pecuniary damages, in addition to any other sentence it may impose, the court may
order that the defendant make restitution to the victim; provided, however, that
the justice court shall not order restitution in an amount exceeding Five Thousand
Dollars ($5,000.00).
See also Smith v. State, 146 So. 3d 376, 379 (Miss. Ct. App. 2014) ([T]he State argues
that the circumstantial proof presented of the causal connection between Smith's driving
under the influence and the pecuniary damages was sufficient to satisfy the requirements
of the restitution statute. We agree.”); Craft v. State, 955 So. 2d 384, 385 (Miss. Ct. App.
2006) (“Joint and several liability has been consistently upheld as to criminal co-
defendants who act in concert.”).
Mississippi Attorney General’s opinions:
Municipal court judge may order restitution for full amount of pecuniary damages.
“While Mississippi Code Annotated Section 99-37-3(1) limits a justice court in awarding
restitution to no more than $5,000.00, there is no similar language limiting a municipal
court. Therefore, it is the opinion of this office that a municipal court judge may order
restitution in a criminal case for the full amount of pecuniary damages suffered by a
victim.” Op. Atty. Gen. Smallwood, January 23, 2004.
§ 99-37-3 Factors the court shall take into account:
(2) In determining whether to order restitution which may be complete, partial or
nominal, the court shall take into account:
(a) The financial resources of the defendant and the burden that payment of
restitution will impose, with due regard to the other obligations of the defendant;
(b) The ability of the defendant to pay restitution on an installment basis or on
other conditions to be fixed by the court; and
(c) The rehabilitative effect on the defendant of the payment of restitution and the
method of payment.
§ 99-37-3 Defendant’s right to be heard on issue of restitution:
(3) If the defendant objects to the imposition, amount or distribution of the
restitution, the court shall, at the time of sentencing, allow him to be heard on
such issue.
§ 99-37-3 If restitution is inappropriate or undesirable:
(4) If the court determines that restitution is inappropriate or undesirable, an order
reciting such finding shall be entered, which should also state the underlying
circumstances for such determination.
§ 99-37-5 Terms of payment:
(1) When a defendant is sentenced to pay a fine or costs or ordered to make
restitution, the court may order payment to be made forthwith or within a
specified period of time or in specified installments. If a defendant is sentenced to
a term of imprisonment, an order of payment of a fine, costs or restitution shall
not be enforceable during the period of imprisonment unless the court expressly
finds that the defendant has assets to pay all or part of the amounts ordered at the
time of sentencing.
§ 99-37-5 As a condition of probation or suspended sentence:
(2) When a defendant sentenced to pay a fine or costs or ordered to make
restitution is also placed on probation or imposition or execution of sentence is
suspended, the court may make payment of the fine or costs or the making of
restitution a condition of probation or suspension of sentence. Such offenders
shall make restitution payments directly to the victim. As an alternative to a
contempt proceeding under sections 99-37-7 through 99-37-13, the intentional
refusal to obey the restitution order or a failure by a defendant to make a good
faith effort to make such restitution may be considered a violation of the
defendant's probation and may be cause for revocation of his probation or
suspension of sentence.
§ 99-37-17 Right to bring civil action not limited or impaired:
(1) Nothing in this chapter limits or impairs the right of a person injured by a
defendant's criminal activities to sue and recover damages from the defendant in a
civil action. Evidence that the defendant has paid or been ordered to pay
restitution pursuant to this chapter may not be introduced in any civil action
arising out of the facts or events which were the basis for the restitution.
However, the court shall credit any restitution paid by the defendant to a victim
against any judgment in favor of the victim in such civil action.
(2) If conviction in a criminal trial necessarily decides the issue of a defendant's
liability for pecuniary damages of a victim, that issue is conclusively determined
as to the defendant, if it is involved in a subsequent civil action.
904 ENHANCED SENTENCES
Some offenses carry an enhanced sentenced for a prior conviction of the offense. See,
e.g., Miss. Code Ann. § 97-23-93 (shoplifting). But this is not to be confused with those
offenses where the prior conviction an element of the crime itself:
In the case sub judice, the underlying crime is itself a felony, and prior
DUI convictions are necessary elements of the crime, not merely
enhancement factors for sentencing purposes.
Watkins v. State, 910 So. 2d 591, 595 (Miss. Ct. App. 2005).
MRCP 19.2(b)(2)(B) provides:
(b) Enhancement of Punishment.
(2) Elevated crimes based upon facts required to be found by a jury.
. . .
(B) When a prior conviction is an element of the principal charge, the fact of a
prior conviction shall be submitted to a jury and proved beyond a reasonable
doubt, However, the defendant may stipulate to, or waive proof regarding, the
prior conviction and the trial court shall accept such a stipulation. The stipulation
then shall be submitted to the jury with a proper limiting instruction.
Comment to MRCrP 19(b)(2)(B) provides in part:
[W]hen a prior conviction is an element of the principal charge, that fact must be
determined by a jury. See Sallie v. State, 155 So.3d 760, 762 (Miss. 2015) (“the
jury must find the elements of the firearm enhancement beyond a reasonable
doubt under Apprendi before a trial court may apply the enhancement”); Rogers v.
State, 130 So.3d 544, 550 (Miss. Ct. App. 2013); Rigby v. State, 826 So.2d 694,
700 (Miss. 2002) (“This Court has repeatedly held that prior DUI convictions are
necessary elements of a felony DUI charge. Thus, they must be proven beyond a
reasonable doubt to the jury”). That said, the defendant may stipulate to the prior
conviction(s), and such a stipulation “should be submitted to the jury with a
proper limiting instruction.” Rigby, 826 So. 2d at 702.
“Abstracts of court records, when properly certified, are clearly allowed to prove prior
convictions.” McIllwain v. State, 700 So. 2d 586, 589 (Miss. 1997). After the prior
convictions are introduced, the burden shifts to the defendant to demonstrate any
infringement of rights or irregularity of procedure in the prior convictions. See Nichols v.
United States, 511 U.S. 738, 749 (1994) (“[A]n uncounseled misdemeanor conviction,
valid under [Scott v. Illinois, 440 U.S. 367 (1979)] because no prison term was imposed,
is also valid when used to enhance punishment at a subsequent conviction.”); Ghoston v.
State, 645 So. 2d 936, 939 (Miss. 1994) (“We decline to hold that because Ghoston chose
to represent himself, his convictions were “irregular” and therefore unfit to be used to
enhance punishment.”).
905 EXPUNGING OF MISDEMEANOR CONVICTION
§ 21-23-7 Expungement under § 21-23-7:
(6) Upon prior notice to the municipal prosecuting attorney and upon a showing in
open court of rehabilitation, good conduct for a period of two (2) years since the
last conviction in any court and that the best interest of society would be served,
the court may, in its discretion, order the record of conviction of a person of any
or all misdemeanors in that court expunged, and upon so doing the said person
thereafter legally stands as though he had never been convicted of the said
misdemeanor(s) and may lawfully so respond to any query of prior convictions.
This order of expunction does not apply to the confidential records of law
enforcement agencies and has no effect on the driving record of a person
maintained under Title 63, Mississippi Code of 1972, or any other provision of
said Title 63.
(7) Notwithstanding the provisions of subsection (6) of this section, a person who
was convicted in municipal court of a misdemeanor before reaching his
twenty-third birthday, excluding conviction for a traffic violation, and who is a
first offender, may utilize the provisions of Section 99-19-71, to expunge such
misdemeanor conviction.
. . .
(13) A municipal court judge shall expunge the record of any case in which an arrest was
made, the person arrested was released and the case was dismissed or the charges were
dropped, there was no disposition of such case or the person was found not guilty at trial.
Mississippi Attorney General’s opinions:
Traffic violation may not be expunged under Section 21-23-7(6).
“Can the Court expunge a conviction for a traffic violation under Section 21-23-7(6)?
No. . . . When read in pari materia, Sections 21-23-7(6) and (7) and 99-19-71 prohibit the
expungement of traffic violations.” Op. Atty. Gen. Henry, August 13, 2010.
Misdemeanor domestic violence convictions not excluded from expunction.
[Miss. Code Ann. Section 21-23-7(6)] gives a municipal judge the authority to expunge
any misdemeanor convictions of an individual in municipal court upon the proper factual
showings. Only misdemeanor convictions for traffic violations are excluded from
expunction. Op. Atty. Gen. Davis, April 1, 2005.
Municipal court judge may not expunge DUI conviction.
“[Section 21-23-7(7)] specifically excludes traffic violations, and therefore said law is not
applicable to DUI convictions under Section 63-11-30 of the Mississippi Code. Op. Atty.
Gen. Livingston, September 3, 2004.
Dismissal for lack of prosecution.
“[A] municipal court has the authority to dismiss the criminal charges filed against a
defendant after a reasonable time for lack of prosecution if the warrant has not or cannot
be served. Op. Atty. Gen. Nowak, March 12, 2004.
§ 99-19-71 Expungement under § 99-19-71:
(1) Any person who has been convicted of a misdemeanor that is not a traffic violation,
and who is a first offender, may petition the justice, county, circuit or municipal court in
which the conviction was had for an order to expunge any such conviction from all public
records.
(2)(a) Except as otherwise provided in this subsection, a person who has been convicted
of a felony and who has paid all criminal fines and costs of court imposed in the sentence
of conviction may petition the court in which the conviction was had for an order to
expunge one (1) conviction from all public records five (5) years after the successful
completion of all terms and conditions of the sentence for the conviction upon a hearing
as determined in the discretion of the court; however, a person is not eligible to expunge a
felony classified as:
(i) A crime of violence as provided in Section 97-3-2;
(ii) Arson, first degree as provided in Sections 97-17-1 and 97-17-3;
(iii) Trafficking in controlled substances as provided in Section 41-29-139;
(iv) A third, fourth or subsequent offense DUI as provided in Section 63-11-30(2)(c) and
(2)(d);
(v) Felon in possession of a firearm as provided in Section 97-37-5;
(vi) Failure to register as a sex offender as provided in Section 45-33-33;
(vii) Voyeurism as provided in Section 97-29-61;
(viii) Witness intimidation as provided in Section 97-9-113;
(ix) Abuse, neglect or exploitation of a vulnerable person as provided in Section
43-47-19; or
(x) Embezzlement as provided in Sections 97-11-25 and 97-23-19.
A person is eligible for only one (1) felony expunction under this paragraph. For the
purposes of this section, the terms “one (1) conviction” and “one (1) felony expunction”
mean and include all convictions that arose from a common nucleus of operative facts as
determined in the discretion of the court.
(b) The petitioner shall give ten (10) days' written notice to the district attorney before any
hearing on the petition. In all cases, the court wherein the petition is filed may grant the
petition if the court determines, on the record or in writing, that the applicant is
rehabilitated from the offense which is the subject of the petition. In those cases where
the court denies the petition, the findings of the court in this respect shall be identified
specifically and not generally.
(3) Upon entering an order of expunction under this section, a nonpublic record thereof
shall be retained by the Mississippi Criminal Information Center solely for the purpose of
determining whether, in subsequent proceedings, the person is a first offender. The order
of expunction shall not preclude a district attorney's office from retaining a nonpublic
record thereof for law enforcement purposes only. The existence of an order of
expunction shall not preclude an employer from asking a prospective employee if the
employee has had an order of expunction entered on his behalf. The effect of the
expunction order shall be to restore the person, in the contemplation of the law, to the
status he occupied before any arrest or indictment for which convicted. No person as to
whom an expunction order has been entered shall be held thereafter under any provision
of law to be guilty of perjury or to have otherwise given a false statement by reason of his
failure to recite or acknowledge such arrest, indictment or conviction in response to any
inquiry made of him for any purpose other than the purpose of determining, in any
subsequent proceedings under this section, whether the person is a first offender. A
person as to whom an order has been entered, upon request, shall be required to advise
the court, in camera, of the previous conviction and expunction in any legal proceeding
wherein the person has been called as a prospective juror. The court shall thereafter and
before the selection of the jury advise the attorneys representing the parties of the
previous conviction and expunction.
(4) Upon petition therefor, a justice, county, circuit or municipal court shall expunge the
record of any case in which an arrest was made, the person arrested was released and the
case was dismissed or the charges were dropped or there was no disposition of such case,
or the person was found not guilty at trial.
(5) No public official is eligible for expunction under this section for any conviction
related to his official duties.
Mississippi Attorney General’s opinions:
Expungement and nonadjudication.
“A non-adjudication does not serve the same purpose as an expunction. Once an order for
expungement is entered pursuant to Section 99-19-71, the effect of such an order is to
“restore the person . . . to the status he occupied before any arrest or indictment for which
convicted.” . . . A defendant who successfully completes the terms of non-adjudication
and has the case dismissed can then petition the court for an expunction pursuant to
Section 99-15-26(5). If approved, the order or the case file would then need to either be
redacted or removed from public access or destroyed as discussed above.” Op. Atty. Gen.
Lee, November 22, 2019.
No waiting period for misdemeanor expungement.
“[Section 99-19-71(1)] has no requirement for a waiting period [for an expungement]
after conviction of a misdemeanor.” Op. Atty. Gen. Lambert, December 11, 2015.
An expungement is a civil action.
“[T]here is nothing prohibiting the county prosecuting attorney from assisting the court in
expungements if the prosecutor so desires, but there is no statutory duty to do so.” Op.
Atty. Gen. Greenlee, March 21, 2014.
Expungement restriction.
“[Section 99-19-71(1)] allows for the expungement of only one misdemeanor for a first
offender.” Op. Atty. Gen. Morris, November 14, 2011.
What constitutes a traffic offense under Section 99-19-71.
“At the outset it is noted that the subject offense [under Section 41-29-139(c)(2)(B)] is
not a traffic offense. Traffic offenses are violations of Chapters 3, 5, 7 and 11 of Title 63
of the Mississippi Code.” Op. Atty. Gen. Ringer, August 5, 2011.
“First offender” under Section 99-19-17 defined.
“[T]he term “first offender” as used in [Section 99-19-71] means an individual who has
no prior non-traffic convictions of any offense.” Op. Atty. Gen. Mitchell, October 24,
2003.
Expunged offense cannot be used to enhance a penalty for a subsequent offense.
“[O]nce an offense has been expunged, it cannot be used to enhance a penalty for a
subsequent offense. The purpose of the nonpublic record is to determine the eligibility of
the offender for the expungement.” Op. Atty. Gen. Carson, May 9, 2003.
Non-adjudicated offenses not exempt from Public Records Act.
“[W]e can find no statutes which would exempt non-adjudicated or suspended sentences
from the Public Records Act, Section 25–61–1 and following of the Mississippi Code.
The non-adjudication statute, Section 99–15–26, does not exempt records of
non-adjudication from the Public Records Act.” Op. Atty. Gen. Brown, June 4, 1993.
§ 45-27-9 Reporting the expunged conviction:
(4) . . . Upon receipt of a lawful expunction order, the center shall purge and destroy files
of all data relating to an offense when an individual is subsequently exonerated from
criminal liability of that offense. The center shall not be liable for the failure to purge,
destroy or expunge any records if an agency or court fails to forward to the center proper
documentation ordering the action.
. . .
(6) All persons in charge of law enforcement agencies, all court clerks, all municipal
justices where they have no clerks, all justice court judges and all persons in charge of
state and county probation and parole offices, shall supply the center with the information
described in subsections (4) and (10) of this section on the basis of the forms and
instructions for the disposition form to be supplied by the center.
. . .
(10) All law enforcement agencies in the state and clerks of the various courts shall
promptly report to the center all instances where records of convictions of criminals are
ordered expunged by courts of this state as now provided by law. The center shall
promptly expunge from the files of the center and destroy all records pertaining to any
convictions that are ordered expunged by the courts of this state as provided by law.
906 STATE ASSESSMENTS
State Auditor’s report:
A report of the State Auditor on state assessments and court costs and fees is distributed
at the Municipal Court Clerks Statewide Seminar each year. This report contains
valuable information regarding collection amounts and procedures.
907 MUNICIPAL COURT COSTS
§ 21-23-7 Allowable costs:
(11) The municipal court shall have the power to impose punishment of a fine of not
more than One Thousand Dollars ($1,000.00) or six (6) months' imprisonment, or both,
for contempt of court. The municipal court may have the power to impose reasonable
costs of court, not in excess of the following:
Dismissal of any affidavit, complaint or charge in municipal court $ 50.00
Suspension of a minor's driver's license in lieu of conviction $ 50.00
Service of scire facias or return “not found” $ 20.00
Causing search warrant to issue or causing prosecution without reasonable cause or
refusing to cooperate after initiating action $ 100.00
Certified copy of the court record $ 5.00
Service of arrest warrant for failure to answer citation or traffic summons $ 25.00
Jail cost per day [of] actual jail cost paid by the municipality but not to exceed $ 35.00
Service of court documents related to the filing of a petition or issuance of a protection
from domestic abuse order under Title 93, Chapter 21, Mississippi Code of 1972 $ 25.00
Any other item of court cost $ 50.00
No filing fee or such cost shall be imposed for the bringing of an action in municipal
court.
§ 25-7-27 Payments to marshals and constables:
(1) Marshals and constables shall charge the following fees:
(a)(i) In all civil and criminal cases, for each service of process, summons, warrant, writ
or other notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45.00
(ii) In all cases where there is more than one (1) defendant residing at the same
household, for service on each additional defendant . . . . . . . . . . . . . . . . . . . . . . . . . $ 5.00
(iii) For service of each process of every kind and nature issued from outside the county
where it is to be served, the fees provided in subparagraphs (i) and (ii) of this paragraph,
as applicable, shall be assessed.
(iv) When a complaining party has provided erroneous information to the clerk of the
court relating to the service of process on the defendant or defendants and process cannot
be served after diligent search and inquiry on oath thereof of the marshal or constable, as
the case may be, charged with serving such process, the fees provided in subparagraphs
(i) and (ii) of this paragraph, as applicable, shall be assessed.
(v) When process has been attempted in one (1) county but the defendant is not found,
and process must be served on that defendant in another county, the clerk shall notify the
complaining party that an additional fee or fees must be paid before the process can be
delivered to the other county.
(b) After final judgment has been enrolled, further proceedings involving levy of
execution on judgments, and attachment and garnishment proceedings shall be a new suit
for which the marshal or constable shall be entitled to the following fee. . . . . . . . . $ 45.00
(c) For conveying a person charged with a crime to jail, mileage reimbursement in an
amount not to exceed the rate established under Section 25-3-41(2).
To be paid out of the county treasury on the allowance of the board of supervisors, when
the state fails in the prosecution, or the person is convicted but is not able to pay the costs.
(d) For other service, the same fees allowed sheriffs for similar services.
(e) For service as a bailiff in any court in a civil case, to be paid by the county on
allowance of the court on issuance of a warrant therefor, an amount equal to the amount
provided under Section 19-25-31 for each day, or part thereof, for which he serves as
bailiff when the court is in session.
(f) For serving all warrants and other process and attending all trials in state cases in
which the state fails in the prosecution, to be paid out of the county treasury on the
allowance of the board of supervisors without itemization, subject, however, to the
condition that the marshal or constable must not have overcharged in the collection of
fees for costs, contrary to the provisions of this section, annually . . . . . . . . . . . $ 2,500.00
(2) Marshals and constables shall be paid all uncollected fees levied under subsection (1)
of this section in full from the first proceeds received by the court from the guilty party or
from any other source of payment in connection with the case.
(3) In addition to the fees authorized to be paid to a constable under subsection (1) of this
section, a constable may receive payments for collecting delinquent criminal fines in
justice court pursuant to the provisions of Section 19-3-41(3).
See also Miss. Code Ann. § 21-23-13 ("The marshal or chief of police of the municipality
shall be the executive officer of the municipal court. He shall attend the sittings of the
court in person or by duly appointed deputies, and he shall be under the direction of the
municipal judge. Any police officer of the municipality may be an ex officio deputy
marshal. The marshal or chief of police shall execute all process by himself or deputy and
do whatever else may be required of him by the court in the line of his duty.").
§ 45-1-29 Laboratory analysis fee:
(4) Upon every individual convicted of a felony or misdemeanor, every individual who is
nonadjudicated on a felony or misdemeanor case under Section 99–15–26 or
63–11–30(14), and every individual who participates in a pretrial intervention program
established under Section 99–15–101 et seq., in a case where the Forensics Laboratory
provided forensic science or laboratory services in connection with the case, the court
shall impose and collect a separate laboratory analysis fee of Three Hundred Dollars
($300.00), in addition to any other assessments and costs imposed by statutory authority,
unless the court finds that undue hardship would result by imposing the fee. All fees
collected under this section shall be deposited into the special fund of the Forensics
Laboratory created in subsection (3) of this section.
§ 21-13-19 Enrolling fines, costs, forfeitures and other penalties:
Judgments for fines, costs, forfeitures and other penalties imposed by municipal courts
may be enrolled by filing a certified copy of the record with the clerk of any circuit court
and execution may be had thereon as provided by law for other judgments.
See also Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972) (“The test of whether a
particular fee system is constitutionally valid is whether it presents a “possible temptation
to the average man as a judge to forget the burden of proof required to convict the
defendant, or which might lead him not to hold the balance nice, clear and true between
the State and the accused.”).
Mississippi Attorney General’s opinions:
Court cost includes compensating city attorney or city public defender.
“[T]he municipal court . . . may impose a cost of court [under Section 21-23-7(11)] to
defray the cost of compensating the city prosecutor and/or city public defender if the city
prosecutor and/or city public defender participated in the case.” Op. Atty. Gen. Patch,
August 20, 2004.
Drug awareness and crime prevention program do not constitute costs of court.
“Drug awareness and crime prevention programs do not constitute costs of court and may
not be funded by the imposition of a court cost under Section 21-23-7(11).” Op. Atty.
Gen. Montgomery, July 16, 2004.
Equipment and computer software for the court’s use.
“[A] municipal court may impose . . . a court cost [under Section 21-23-7(11)] for the
purpose of purchasing equipment/computer software for the court's use. The expenditure
of any such court costs collected must be appropriated by the municipal governing
authorities. Op. Atty. Gen. Smith, December 2, 2003.
Allowable costs for constable’s mileage.
“May a municipality pay a constable for mileage, in addition to any statutorily set process
fee? . . . [A] constable may not be paid mileage simply for serving a warrant, however, a
municipality may pay a constable a mileage fee as warranted by . . . Section 25-7-27
(1)(c) which provides: For conveying a person charged with a crime to jail, mileage
reimbursement in an amount not to exceed the rate established under Section 25-3-41(2).
However, the municipal court is limited by Section 21-23-7(11) when imposing such
mileage reimbursements as a cost of court to the defendant upon conviction.” Op. Atty.
Gen. Ringer, February 21, 2003.
Office supplies, equipment, furniture and renovations.
“[A] municipal judge may set a standard assessment under . . . Section 21-23-7(11), the
proceeds of which could be spent by the municipal governing authorities for office
supplies, equipment, furniture and renovations for office space. Likewise, we are of the
opinion that such expenditures may include the costs of a new computer.” Op. Atty. Gen.
Gilfoy, November 1, 2002.
Compensating court employees.
“[A court] cost may be imposed [under Section 21-23-7(11)] for the purpose of
compensating court employees. [T]he expenditure of any such costs collected must be
appropriated by the municipal governing authorities.” Op. Atty. Gen. Payne, March 15,
2002.
908 APPLICABILITY OF SECTIONS 21-23-1 THROUGH 21-23-19
§ 21-23-21 Cumulative to other applicable laws of this state:
The provisions of sections 21-23-1 through 21-23-19 shall be applicable to all
municipalities of this state whether operating under a code charter, special charter, or the
commission form of government, except in cases of conflict between the provisions of
said sections and the provisions of the special charter of a municipality, or the law
governing the commission form of government, in which cases of conflict the provisions
of the special charter or the statutes relative to the commission form of government shall
control. The provisions of this chapter are cumulative to other applicable laws of this
state.
CHAPTER 10
ENFORCING CRIMINAL JUDGMENTS
1000 COLLECTING FINES, COSTS AND ASSESSMENTS
Successful collection programs
Explaining policies on collections
Credit or debit cards
Personal checks
Collecting assessments
Clerk to administer the collection of fines, penalties, fees and costs
Collecting fines and costs
Statutes of limitation
Contracting with an attorney or collection agency
Enrolling fines, costs, forfeitures and other penalties
1001 STATUTES AUTHORIZING THE JUDGE TO SUSPEND A SENTENCE OR TO
SUSPEND THE EXECUTION OF A SENTENCE
1002 COURT ACTION UPON FAILURE OF DEFENDANT TO PAY FINE,
RESTITUTION, AND/OR COURT COSTS
1003 RULES ON REVOKING PROBATION
Initiation of revocation proceedings; securing the probationer’s presence
Preliminary hearing after arrest
Revocation of probation
Other proceedings
1004 PURGING JUDGMENT ROLLS OF FINES AND FEES
Blank page
1000 COLLECTING FINES, COSTS AND ASSESSMENTS
Successful collection programs:
Studies show that collections are more successful when:
C fines are set properly,
C collection procedures are clear and encourage prompt payment,
C enforcement efforts are consistent and compel timely payments, and
C sentencing permits the imposition of nonfinancial and noncustodial alternatives
for indigent defendants.
Tools for an effective collection system include:
C Assessing fines at an amount that is realistically payable considering the
defendant’s income and assets.
C Shortening time periods for payment by collecting all or part on the date of
sentence, minimizing installment payments, and taking into account the
defendant’s financial resources when imposing a payment schedule.
C Explaining to a defendant how and where to make payments and the
consequences of defaulting in payments.
C Using incentives to encourage prompt payment.
C Using collection procedures which ensure a timely response to nonpayment
through notifications and warrants, impose effective sanctions for non-
compliance, and establish sound financial control.
See Steve Bouch, National Center for State Courts, Key Elements of a Successful
Collection Program and Self-Assessment (1994); John Matthias, National Center for
State Courts, Tools Available for Effective Collection (1994); see also Wallace v. State,
607 So. 2d 1184, 1188 (Miss. 1992) (“As a general rule, sentencing is purely a matter of
trial court discretion so long as the sentence imposed lies within the statutory limits.”).
Explaining policies on collections:
A copy of the court’s policy on the payment of fines should be given to the defendant to
read and sign. The court should discuss its contents to make sure the defendant
understands how and where to make payments and the consequences of defaulting in
payments. Various methods of payment include cash, money orders, cashiers checks, and
certified checks.
§ 17-25-1 Credit or debit cards:
The board of supervisors of any county and the governing authorities of any municipality
may allow the payment of various taxes, fees and other accounts receivable to the county
or municipality, and the payment for retail merchandise sold by the county or
municipality, by credit cards, charge cards, debit cards and other forms of electronic
payment, in accordance with policies established by the State Auditor. Except as
otherwise provided in this section, any fees or charges associated with the use of such
electronic payments shall be assessed to the user of the electronic payment as an
additional charge for processing the electronic payment, so that the user will pay the full
cost of using the electronic payment. However, a county or municipality shall not charge
the user any additional amount above the processing fee on each transaction. For purposes
of this section, the term “accounts receivable” includes, but is not limited to, judgments,
fines, costs and penalties imposed upon conviction for criminal and traffic offenses. A
county or municipality may bear the full cost of processing such electronic payments for
retail merchandise sold by the county or municipality.
§ 63-9-12 Personal checks:
Personal checks shall be accepted from Mississippi residents in payment of any
fine imposed as a result of a violation of Chapters 3, 5 and 7 of Title 63,
Mississippi Code of 1972. The person accepting a check in payment of such a
fine shall not be liable if such check is returned not paid provided he makes
reasonable efforts to collect the fine.
Mississippi Attorney General’s opinions:
Payment by personal check for traffic fines and use of check processing service.
“The municipality may, within its discretion, refuse to accept personal checks from
out-of-state residents for the payment of traffic fines. It may use a check processing
service in an effort to ensure collection of its municipal fines from out-of-state residents;
however, any processing fee must be paid by the payor. The municipality is under no
obligation to accept a personal check that is invalid or has failed the verification process
and any resulting processing fee could be assessed against the payor.” Op. Atty. Gen.
Thames, February 11, 2011.
§ 99-19-73 Collecting assessments:
(10)(a) After a determination by the court of the amount due, it shall be the duty of the
clerk of the court to promptly collect all state assessments imposed under the provisions
of this section. The state assessments imposed under the provisions of this section may
not be paid by personal check.
See also Miss. Code Ann. § 9-21-9(m) (“The Administrative Director of Courts shall
have the following duties and authority with respect to all courts in addition to any other
duties and responsibilities as may be properly assigned by the Supreme Court: . . . (m) To
take necessary steps in the collection of unpaid court costs, fines and forfeitures;”).
§ 21-23-11 Clerk to administer the collection of fines, penalties, fees and costs:
The clerk of the court or deputy clerk of the court . . . shall administer the collection of all
fines, penalties, fees and costs imposed by the court and deposit all collections with the
municipal treasurer or equivalent officer.
§ 99-37-13 Collecting fines and costs:
A default in the payment of a fine or costs or failure to make restitution or any
installment thereof may be collected by any means authorized by law for the
enforcement of a judgment. The levy of execution for the collection of a fine or
restitution shall not discharge a defendant committed to imprisonment for
contempt until the amount of the fine or restitution has actually been collected.
Mississippi Attorney General’s opinions:
Municipality may collect judgments by any means authorized by law.
“[Pursuant to Section 99-37-13] once the defendant has been found guilty and fined,
which constitutes a judgment, the municipality may collect such judgment by any means
authorized by law, which includes, but is not limited to, executing on the personal
property of the record title owner.” Op. Atty. Gen. Turnage, August 6, 2010.
Executing on real and personal property.
“Can the Municipal Court go so far as to attempt to execute on real or personal property?
Answer: Yes. Section 99-37-13 of the Mississippi Code authorizes the court to collect
criminal fines by any means authorized by law for the enforcement of a judgment.” Op.
Atty. Gen. Arnold, November 2009.
Garnishment limitations.
“Is there any limitation on what we can garnish, wages, bank accounts; tax refunds?
Answer: You may garnish wages, bank accounts and tax refunds. However, you should
contact the Internal Revenue Service as to federal tax refunds. For informational purposes
you might examine the Mississippi exemption statutes, particularly Section 85-3-1 of the
Mississippi Code.” Op. Atty. Gen. Arnold, November 2009.
Use of a garnishment to collect outstanding fines and court cost.
“It is the opinion of this office that it would not be necessary for the [court] to commence
a civil action to obtain a judgment, but that the [court] may rely on the conviction and
sentence i.e. fine and cost to constitute the judgment in which the garnishment will be
predicated.” Op. Atty. Gen. Fondren (March 23, 1989).
§ 15-1-51 Statutes of limitation:
Statutes of limitation in civil cases shall not run against the state, or any
subdivision or municipal corporation thereof, except that any judgment or decree
rendered in favor of the state, or any subdivision or municipal corporation thereof,
shall not be a lien on the property of the defendant therein for a longer period than
seven (7) years from the date of filing notice of the lien, unless an action is
brought before the expiration of such time or unless the state or such subdivision
or municipal corporation refiles notice of the lien. There shall be no limit upon
the number of times that the state, or any subdivision or municipal corporation
thereof, may refile such notices of lien.
Mississippi Attorney General’s opinions:
No statute of limitations against the state under Section 15-1-15.
“There is no statute of limitations against the state pursuant to Section 15-1-51 of the
Mississippi Code. However, there is no lien on the property of the defendant for a longer
period than seven years from the date of filing notice of the lien on the judgment rolls,
unless an action is brought before that time or the judgment has been renewed.” Op. Atty.
Gen. Ray, November 14, 2011.
§ 21-17-1 Contracting with an attorney or collection agency:
(6) The governing authority of any municipality may contract with a private attorney or
private collection agent or agency to collect any type of delinquent payment owed to the
municipality including, but not limited to, past due fees and fines. Any such contract debt
may provide for payment contingent upon successful collection efforts or payment based
upon a percentage of the delinquent amount collected; however, the entire amount of all
delinquent payments collected shall be remitted to the municipality and shall not be
reduced by any collection costs or fees. Any private attorney or private collection agent or
agency contracting with the municipality under the provisions of this subsection shall
give bond or other surety payable to the municipality in such amount as the governing
authority of the municipality deems sufficient. Any private attorney with whom the
municipality contracts under the provisions of this subsection must be a member in good
standing of The Mississippi Bar. Any private collection agent or agency with whom the
municipality contracts under the provisions of this subsection must meet all licensing
requirements for doing business in the State of Mississippi. Neither the municipality nor
any officer or employee of the municipality shall be liable, civilly or criminally, for any
wrongful or unlawful act or omission of any person or business with whom the
municipality has contracted under the provisions of this subsection. The Mississippi
Department of Audit shall establish rules and regulations for use by municipalities in
contracting with persons or businesses under the provisions of this subsection.
§ 21-17-1 Using municipal employees to collect delinquent payment:
(6) . . . If a municipality uses its own employees to collect any type of delinquent payment
owed to the municipality, then from and after July 1, 2000, the municipality may charge
an additional fee for collection of the delinquent payment provided the payment has been
delinquent for ninety (90) days. The collection fee may not exceed fifteen percent (15%)
of the delinquent payment if the collection is made within this state and may not exceed
twenty-five percent (25%) of the delinquent payment if the collection is made outside this
state. In conducting collection of delinquent payments, the municipality may utilize credit
cards or electronic fund transfers. The municipality may pay any service fees for the use
of such methods of collection from the collection fee, but not from the delinquent
payment. There shall be due to the municipality from any person whose delinquent
payment is collected under a contract executed as provided in this subsection an amount,
in addition to the delinquent payment, of not to exceed twenty-five percent (25%) of the
delinquent payment for collections made within this state, and not to exceed fifty percent
(50%) of the delinquent payment for collections made outside of this state.
§ 21-13-19 Enrolling fines, costs, forfeitures and other penalties:
Judgments for fines, costs, forfeitures and other penalties imposed by municipal courts
may be enrolled by filing a certified copy of the record with the clerk of any circuit court
and execution may be had thereon as provided by law for other judgments.
Mississippi Attorney General’s opinions:
Enrollment of judgment establishes lien on assets of the defendant.
“Does our judgment have to be filed in the Circuit Clerk's Office before we can proceed
with any collection process? Answer: No. However, enrollment on the Judgment Roll
maintained by the Circuit Clerk would establish a lien on assets of the defendant.” Op.
Atty. Gen. Arnold, November 2009.
1001 STATUTES AUTHORIZING THE JUDGE TO SUSPEND A SENTENCE OR TO
SUSPEND THE EXECUTION OF A SENTENCE
§ 21-23-7
(5) . . . Subsequent to original sentencing, the municipal judge, in misdemeanor cases, is
hereby authorized to suspend sentence and to suspend the execution of a sentence, or any
part thereof, on such terms as may be imposed by the municipal judge, if (a) the judge or
his or her predecessor was authorized to order such suspension when the sentence was
originally imposed; and (b) such conviction (i) has not been appealed; or (ii) has been
appealed and the appeal has been voluntarily dismissed.
§ 99-19-20
(1) Except as otherwise provided under Section 99-19-20.1, when any court sentences a
defendant to pay a fine, the court may order (a) that the fine be paid immediately, or (b)
that the fine be paid in installments to the clerk of the court or to the judge, if there be no
clerk, or (c) that payment of the fine be a condition of probation, or (d) that the defendant
be required to work on public property for public benefit under the direction of the sheriff
for a specific number of hours, or (e) any combination of the above.
(2) Except as otherwise provided under Section 1 of [House Bill 387], the defendant may
be imprisoned until the fine is paid if the defendant is financially able to pay a fine and
the court so finds, subject to the limitations provided under this section. The defendant
shall not be imprisoned if the defendant is financially unable to pay a fine and so states to
the court in writing, under oath, after sentence is pronounced, and the court so finds,
except if the defendant is financially unable to pay a fine and such defendant failed or
refused to comply with a prior sentence as specified in subsection (1) of this section, the
defendant may be imprisoned.
This subsection shall be limited as follows:
(a) In no event shall such period of imprisonment exceed one (1) day for each One
Hundred Dollars ($100.00) of the fine.
(b) If a sentence of imprisonment, as well as a fine, were imposed, the aggregate of such
term for nonpayment of a fine and the original sentence of imprisonment shall not exceed
the maximum authorized term of imprisonment.
(c) It shall be in the discretion of the judge to determine the rate of the credit to be earned
for work performed under subsection (1)(d), but the rate shall be no lower than the rate of
the highest current federal minimum wage.
(3) Periods of confinement imposed for nonpayment of two (2) or more fines shall run
consecutively unless specified by the court to run concurrently.
§ 99-37-5
(2) When a defendant sentenced to pay a fine or costs or ordered to make restitution is
also placed on probation or imposition or execution of sentence is suspended, the court
may make payment of the fine or costs or the making of restitution a condition of
probation or suspension of sentence. Such offenders shall make restitution payments
directly to the victim. As an alternative to a contempt proceeding under sections 99-37-7
through 99-37-13, the intentional refusal to obey the restitution order or a failure by a
defendant to make a good faith effort to make such restitution may be considered a
violation of the defendant's probation and may be cause for revocation of his probation or
suspension of sentence.
1002 COURT ACTION UPON FAILURE OF DEFENDANT TO PAY FINE,
RESTITUTION, AND/OR COURT COSTS
MRCrP 26.6
(d) Court Action upon Failure of Defendant to Pay Fine, Restitution, and/or Court Costs.
Upon the defendant's failure to pay a fine, restitution, and/or court costs, the court first
must require the defendant to appear and show cause why said defendant should not be
held in contempt of court. A summons requiring the defendant's appearance shall be
personally served on the defendant and shall set forth the time and location of the hearing.
If the defendant fails to appear, the court may issue a warrant for the defendant's arrest.
During the hearing, the court shall inquire and cause an investigation to be made into the
reasons for nonpayment, including whether nonpayment was willful or due to indigency
or economic inability to pay. In that review:
(1) If it appears to the satisfaction of the court that nonpayment is not willful, the court
shall enter an order allowing the defendant additional time for payment, reducing the
amount thereof or of each installment, or revoking the fine or order of restitution or the
unpaid portion thereof in whole or in part. However, the court shall not suspend or reduce
an assessment imposed pursuant to Mississippi Code Section 99-19-73.
(2) If the court finds nonpayment is willful and finds the defendant in contempt of court,
the court may direct that the defendant be incarcerated until the unpaid obligation is paid,
subject, however, to section (e).
(e) Incarceration for Nonpayment of Fine, Restitution, and/or Court Costs.
(1) Incarceration shall not automatically follow the nonpayment of a fine, restitution,
and/or court costs. Incarceration may be employed only after the court has conducted a
hearing and examined the reasons for nonpayment and finds, on the record, that the
defendant could have made payment but refused to do so. In justice and municipal court,
such finding shall be included in the court's order.
(2) After consideration of the defendant's situation, means, and conduct with regard to the
nonpayment, the court shall determine the period of any incarceration, subject to the
limitations set by statute.
(3) If, at the time the fine, restitution and/or court costs was ordered, a sentence of
incarceration was also imposed, the aggregate of the period of incarceration imposed
pursuant to this Rule and the term of the sentence originally imposed may not exceed the
maximum term of imprisonment authorized for the offense.
Comment to Rule 26.6 provides in part:
Section (d) outlines the court's authority to inquire into and address non-payment or
non-compliance, through contempt and other means, and provides reasonable alternatives
to automatic incarceration. Section (d)(1) generally follows Mississippi Code Section
99-37-11, while section (d)(2) follows Mississippi Code Section 99-19-20(2). The court
may address contempt by any other means provided by statute. See, e.g., Miss. Code §
99-19-65 (clerk's issuance of execution of any portion remaining unpaid). Nothing in
Rule 26.6 precludes, in an appropriate case, proceeding pursuant to Rule 27.
Section (e) governs incarceration for non-payment and limits incarceration to instances in
which the defendant could have satisfied payment but refused to do so. A defendant
should not be imprisoned automatically when alternative methods are available. See
Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983); Tate v.
Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971) (denial of equal protection to
limit punishment to payment of a fine for those who are able to pay, but to convert the
fine to imprisonment for those who are unable to pay). Further, the period of
incarceration, if any, is subject to Mississippi Code Sections 99-19-20 and 99-37-9.
Section (e)(3) follows Mississippi Code Section 99-19-20(2)(b) and Williams v. Illinois,
399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), which forbid imprisonment of an
indigent defendant for non-payment beyond the maximum sentence authorized for the
offense.
Case law:
Alabama v. Shelton, 535 U.S. 654, 662 (2002) (“Where the State provides no counsel to
an indigent defendant, does the Sixth Amendment permit activation of a suspended
sentence upon the defendant's violation of the terms of probation? We conclude that it
does not.”).
Bearden v. Georgia, 461 U.S. 660, 672 (1983) (“If the probationer could not pay despite
sufficient bona fide efforts to acquire the resources to do so, the court must consider
alternate measures of punishment other than imprisonment. Only if alternate measures
are not adequate to meet the State's interests in punishment and deterrence may the court
imprison a probationer who has made sufficient bona fide efforts to pay.”).
Cassibry v. State, 453 So. 2d 1298, 1299 (Miss. 1984) (“[I]t is established beyond per
adventure that an indigent may not be incarcerated because he is financially unable to
comply with an otherwise lawfully imposed sentence of a fine.”).
Williams v. State, 409 So.2d 1331, 1332 (Miss. 1982) (“It is a narrow inquiry; the process
[of a revocation hearing] should be flexible enough to consider evidence including letters,
affidavits, and other material that would not be admissible in an adversary criminal
trial.”). p
Boone v. State, 148 So. 3d 377, 380 (Miss. Ct. App. 2014) (“Because Boone ‘willfully
refused to pay or failed to make sufficient bona fide efforts legally to acquire the
resources to pay,’ the trial court was not required to consider alternative sentencing.”).
McClinton v. State, 799 So. 2d 123, 127 (Miss. Ct. App. 2001) (“McClinton did not
claim inability to pay or indigence as a defense at the revocation hearing. It should also
be noted that his probation was revoked on three other grounds, namely: failure to
regularly report, refusal to submit to chemical analysis and criminal misconduct.”).
§ 99-19-20.1 Required hearing before incarcerating a defendant for nonpayment of
a fine, restitution, or court costs
(1) Incarceration shall not automatically follow the nonpayment of a fine, restitution or
court costs. Incarceration may be employed only after the court has conducted a hearing
and examined the reasons for nonpayment and finds, on the record, that the defendant
was not indigent or could have made payment but refused to do so. When determining
whether a person is indigent, the court shall use the current Federal Poverty Guidelines
and there shall be a presumption of indigence when a defendant's income is at or below
one hundred twenty-five percent (125%) of the Federal Poverty Guidelines, subject to a
review of his or her assets. A defendant at or below one hundred twenty-five percent
(125%) of the Federal Poverty Guidelines without substantial liquid assets available to
pay fines, fees, and costs shall be deemed indigent. In determining whether a defendant
has substantial liquid assets, the judge shall not consider up to Ten Thousand Dollars
($10,000.00) in tangible personal property, including motor vehicles, household goods, or
any other assets exempted from seizure under execution or attachment as provided under
Section 85–3–1. If the defendant is above one hundred twenty-five percent (125%) of the
Federal Poverty Guidelines, the judge shall make an individualized assessment of his or
her ability to pay based on the totality of the circumstances including, but not limited to,
the defendant's disposable income, financial obligations and liquid assets. If the judge
determines that a defendant who claims indigence is not indigent and the defendant could
have made payment but refused to do so, the case file shall include a written explanation
of the basis for the determination of the judge. In justice and municipal court, such
finding shall be included in the court's order.
(2) If it appears to the satisfaction of the court that nonpayment is not willful, the court
shall enter an order that allows the defendant additional time for payment, reduces the
amount of each installment, revokes the fine, in whole or in part, or allows the defendant
to perform community service at the state minimum wage per hour rate. If the court finds
nonpayment is willful after consideration of the defendant's situation, means, and conduct
with regard to the nonpayment, the court shall determine the period of incarceration, if
any, subject to the limitations set by law and subsection (3) of this section.
(3) If at the time the fine, restitution or court cost is ordered, a sentence of incarceration is
also imposed, the aggregate total of the period of incarceration imposed pursuant to this
section and the term of the sentence originally imposed may not exceed the maximum
term of imprisonment authorized for the offense.
(4) A minor who is to serve as a confidential informant must be notified that the minor
has the right to contact one (1) or both parents.
1003 RULES ON REVOKING PROBATION
MRCrP 27.1 Initiation of revocation proceedings; securing the probationer’s
presence:
(a) Initiation of Revocation Proceedings. If a probationer has violated a condition of
probation or has acted contrary to a lawful instruction issued by the supervising officer,
the supervising officer or the prosecuting attorney may petition the sentencing court to
revoke or modify probation.
(b) Securing the Probationer's Presence. Pursuant to a petition to revoke or modify, the
sentencing court may, when appropriate, issue a warrant for the probationer's arrest or
issue a summons directing the probationer to appear on a specified date for a revocation
hearing.
(c) Arrest by Supervising Officer. The probationer may be arrested without a warrant by
the supervising officer responsible for the probationer's supervision or by the officer's
agent, pursuant to statute, for violation of a condition of probation imposed or an
instruction issued.
MRCrP 27.2 Preliminary hearing after arrest:
Whenever a probationer is arrested for an alleged violation of probation, an informal
preliminary hearing shall be conducted as prescribed by statute.
MRCrP 27.3 Revocation of probation:
(a) Hearing. A hearing to determine whether probation should be revoked shall be held
before the sentencing court, as prescribed by statute.
(b) Summary Disposition. The probationer may waive the hearing prescribed by Rule
27.3(a) and the sentencing court may make a final disposition of the issue, if:
(1) the probationer has been given sufficient notice of the charges and sufficient notice of
the evidence to be relied upon; and
(2) the probationer admits, under the requirements of Rule 27.3(e), commission of the
alleged violation.
(c) Presence. The probationer is entitled to be present at the hearing.
(d) Counsel.
(1) The probationer may be represented by retained counsel.
(2) Counsel shall be appointed to represent an indigent probationer if the probationer
makes a colorable claim that:
(A) the probationer has not committed the alleged violation of the conditions of probation
or the instructions issued by the supervising officer; or
(B) even when the violation is a matter of public record or is uncontested, there are
substantial reasons that justify or mitigate the violation and make revocation
inappropriate, and those reasons are complex or otherwise difficult to develop or present.
(e) Admissions by the Probationer. Before accepting an admission by a probationer that
the probationer has violated a condition of probation or a lawful instruction issued by the
supervising officer, the court shall determine that the probationer understands the
following:
(1) the nature of the violation to which an admission is offered;
(2) the right to be represented by counsel as provided by Rule 27.3(d);
(3) the right to testify and to present witnesses and other evidence on the probationer's
own behalf and to cross-examine adverse witnesses under subsection (f)(1); and
(4) that, if the alleged violation involves a criminal offense for which the probationer has
not yet been tried, the probationer may still be tried for that offense and, although the
probationer may not be required to testify, that any statement made by the probationer at
the present proceeding may be used against the probationer at a subsequent proceeding or
trial.
The court shall also determine that the probationer waives these rights, that the admission
is voluntary and not the result of force, threats, coercion, or promises, and that there is a
factual basis for the admission.
(f) Nature of the Hearing.
(1) The judge must find by a preponderance of the evidence that a violation of the
conditions of probation or the instructions occurred. Each party shall have the right to
present evidence and the right to confront and cross-examine adverse witnesses who
appear and testify in person. The court may receive any reliable, relevant evidence not
legally privileged, including hearsay.
(2) If the alleged violation involves a criminal offense for which the probationer has not
yet been tried, the probationer shall be advised at the beginning of the revocation hearing
that, regardless of the outcome of the revocation hearing, the probationer may still be held
for that offense and that any statement made by the probationer at the hearing may be
used against the probationer at a subsequent proceeding or trial.
(3) In cases involving breach of a condition of probation because of nonpayment of a fine,
restitution, or court costs, incarceration shall not automatically follow nonpayment.
Incarceration may be employed only after the court has examined the reasons for
nonpayment and finds, on the record, that the probationer could have satisfied payment
but refused to do so.
(g) Disposition. If the judge finds that a violation of the conditions of probation or lawful
instructions occurred, it may revoke, modify, or continue probation.
(h) Record. The judge shall make a written statement or state for the record the evidence
relied upon, and the reasons for, revoking probation.
MRCrP 27.4 Other proceedings:
Proceedings to revoke or modify any other suspended sentence or period of post-release
supervision shall be conducted in accordance with Rule 27.
1004 PURGING JUDGMENT ROLLS OF FINES AND FEES
§ 9-1-47 Of fines and fees owed by deceased person:
The municipal and justice courts are authorized to purge judgment rolls of all
fines and fees owed by any deceased person upon presentation of proof that the
person liable for such fines or fees is deceased.
CHAPTER 11
DUI
1100 TRAFFIC STOPS
1101 PROBABLE FOR DUI ARRESTS
When an officer may make an arrest
What is probable cause?
Probable cause determined from the totality of the circumstances
Field sobriety tests as a basis for probable cause
1102 DEFINITIONS UNDER IMPLIED CONSENT LAW
1103 ADMINISTERING CHEMICAL TESTS FOR ALCOHOL OR DRUGS
Implied consent to tests
Chemical tests that may be requested
Tests administered upon reasonable grounds and probable cause
Who is authorized to administer tests
Observation period
Officer to inform of consequences for refusal
Informing of right to telephone for legal or medical assistance
No duty to notify person of the right to an independent test
Refusal admissible as evidence
1104 PROVING DUI
DUI ticket is notice of misdemeanor DUI
Indictment is the charging instrument for felony DUI
Reduction of charges prohibited
Variety of ways to prove DUI
Johnston three-prong test for admitting DUI test results
Proving DUI 2nd offense
Proof of prior DUI conviction and date of offense
Out-of-state prior convictions
1105 DOUBLE JEOPARDY CONCERNS
Governing laws
Prior conviction an element of a DUI 2nd offense
Administrative driver’s license suspension is a remedial measure
1106 DISCOVERY
1107 SENTENCING
Apply DUI penalties in effect at time of the offense
DUI 1st offense penalties
DUI 2nd offense penalties
1108 REPORTING DUI CONVICTIONS
Judge to sign that person employed or waived right to an attorney
Documentation to be sent to Public Safety
1109 DRIVING AFTER SUSPENSION OR REVOCATION
Penalties
Additional suspension of driver’s license or driving privileges
1110 ZERO TOLERANCE FOR MINORS
1111 ENDANGERING A CHILD BY DRIVING UNDER THE INFLUENCE
1112 NONADJUDICATION
“Nonadjudication” defined
Criteria for a qualifying first offense
Conditions to be imposed by the court
When the court may enter an order of nonadjudication
Clerk to forward record of nonadjudication to Public Safety
1113 VEHICLE IMPOUNDMENT, IMMOBILIZATION AND IGNITION LOCKS
If installation and use of an ignition-interlock device is ordered
Supplemental to Section 63–11–30
“Ignition-interlock device” and “interlock restricted license” defined
Required on all motor vehicles owned or operated by the person
Who bears the costs?
Fees to be imposed by the court
Public Safety to promulgate rules and regulations
Proof of installation and proper operation of the device
Interlock-restricted driver’s license violations
Criteria for obtaining an interlock restricted license
Impounding or immobilizing vehicle
Interlock Device Fund
Reinstatement of the regular driver’s license
When court may extend interlock-restricted period
Jurisdiction under section 63-11-31
Criteria for converting to another form of license
Policies for reporting and sharing ignition-interlock data
Mississippi Forensics Laboratory to approve vendors
1114 LICENSE SUSPENSIONS AND RESTRICTIONS
License suspensions and restrictions to run consecutively
Refusal to submit; effect
Review of refusal; sanctions
Blank page
1100 TRAFFIC STOPS
See CHAPTER 5 “EXCEPTIONS TO THE WARRANT REQUIREMENT.”
1101 PROBABLE FOR DUI ARRESTS
When an officer may make an arrest:
“If an officer has probable cause to believe that an individual has committed even a very
minor criminal offense in his presence, he may, without violating the Fourth Amendment,
arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).
What is probable cause?
Probable cause arises when the facts and circumstances within the officer's knowledge,
including any reasonably trustworthy information, are sufficient to justify a person of
average caution in the belief that a crime has been committed and that a particular person
committed it. See Beck v. Ohio, 379 U.S. 89 (1964); Bevill v. State, 556 So. 2d 699
(Miss. 1990); Strode v. State, 231 So. 2d 779, 782 (Miss. 1970); Passman v. State, 937
So. 2d 17 (Miss. Ct. App. 2006). It is more than a bare suspicion, but less than needed
for a conviction. See Brinegar v. U.S., 338 U.S. 160, 174-176 (1949).
Probable cause determined from the totality of the circumstances:
Probable cause is determined from the totality of the circumstance on a case by case
basis. Young v. City of Brookhaven, 693 So. 2d 1355, 1361 (Miss. 1997). The key
inquiry is “whether a reasonable officer could have believed [the arrest] to be lawful, in
light of clearly established law and the information the officer possessed.” Anderson v.
Creighton, 483 U.S. 635 (1987).
The following are appropriate considerations for probable cause:
• The smell of alcohol emanating from inside the car. See Dale v. State, 785 So. 2d
1102, 1107 (Miss. Ct. App. 2001).
• Poor performance of field sobriety tests. See Edwards v. State, 795 So. 2d 554,
563 (Miss. Ct. App. 2001).
• Stumbling, slurring, or staggering. See McDonald v. City Of Aberdeen, 906 So.
2d 774, 776 (Miss. Ct. App. 2004).
• Glassy and bloodshot eyes. See Saucier v. City of Poplarville, 858 So. 2d 933, 935
(Miss. Ct. App. 2003).
• Admission of drinking. See Mayo v. State, 843 So. 2d 739, 742 (Miss. Ct. App.
2003).
• Open container of intoxicating substance. See Watson v. State, 835 So. 2d 112,
116 (Miss. Ct. App. 2003).
• Erratic driving. See McDuff v. State, 763 So. 2d 850, 855 (Miss. 2000).
• Expired tag. See Platt v. State, 151 So. 3d 236, 240 (Miss. 2014).
Field sobriety tests as a basis for probable cause:
An officer may request a motorist suspected of driving under the influence of alcohol or
drugs to perform field sobriety tests. See Pennsylvania v. Bruder, 488 U.S. 9, 11 (1988).
“Probable cause to administer a field sobriety test can be the basis of probable cause to
arrest and administer a breath test.” Saucier v. City of Poplarville, 858 So. 2d 933, 935
(Miss. Ct. App. 2003).
There two different types of field sobriety tests:
• psychophysical tasks; and
• scientific field sobriety tests.
Psychophysical tasks.
Psychophysical tasks are simple exercises allowing an officer to observe if the driver is
slurring words, stumbling, staggering, or otherwise appearing intoxicated or impaired.
See Young v. City of Brookhaven, 693 So. 2d 1355, 1360 (Miss. 1997); Capler v. City of
Greenville, 207 So. 2d 339, 340 (Miss. 1968). Common psychophysical tasks include,
but are not limited to, the following:
• walking a straight line;
• standing on one leg;
• finger-count; and
• finger-to-nose.
The officer’s observations of such tasks are admissible to show probable cause to arrest
and administer a breath test and, at trial, as proof of intoxication. See Edwards v. State,
795 So. 2d 554, 563 (Miss. Ct. App. 2001); Graves v. State, 761 So. 2d 950, 955 (Miss.
Ct. App. 2000).
Scientific field sobriety tests.
Horizontal Gaze Nystagmus and the portable breath test are scientific tests. These tests
are admissible, within the sound discretion of the judge, to show probable cause to arrest
and administer a breath test, but not as evidence of DUI. See Young v. City of
Brookhaven, 693 So. 2d 1355, 1360-61 (Miss. 1997); Graves v. State, 761 So. 2d 950,
954 (Miss. Ct. App. 2000); Price v. State, 752 So. 2d 1070, 1077 (Miss. Ct. App. 1999).
Form of ticket, citation, or affidavit under Implied Consent Law:
(4) The traffic ticket, citation or affidavit issued to a person arrested for a violation of this
chapter shall conform to the requirements of Section 63-9-21(3)(b), and, if filed
electronically, shall conform to Section 63-9-21(8).
1102 DEFINITIONS UNDER IMPLIED CONSENT LAW
§ 63-11-3 Definitions
The following words and phrases shall have the meaning ascribed herein, unless the
context clearly indicates otherwise:
(a) “Driving privilege” or “privilege” means both the driver's license of those licensed in
Mississippi and the driving privilege of unlicensed residents and the privilege of
nonresidents, licensed or not, the purpose of this section being to make unlicensed and
nonresident drivers subject to the same penalties as licensed residents.
(b) “Community service” means work, projects or services for the benefit of the
community assigned, supervised and recorded by appropriate public officials.
(c) “Chemical test” means an analysis of a person's blood, breath, urine or other bodily
substance for the determination of the presence of alcohol or any other substance which
may impair a person's mental or physical ability.
(d) “Refusal to take breath, urine and/or blood test” means an individual declining to take
a chemical test, and/or the failure to provide an adequate breath sample as required by the
Implied Consent Law when requested by a law enforcement officer.
(e) “Alcohol concentration” means either grams of alcohol per one hundred (100)
milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath.
(f) “Qualified person to withdraw blood” means any person who has been trained to
withdraw blood in the course of their employment duties including but not limited to
laboratory personnel, phlebotomist, emergency medical personnel, nurses and doctors.
(g) “Victim impact panel” means a two-hour seminar in which victims of DUI accidents
relate their experiences following the accident to persons convicted under the Implied
Consent Law. Paneling programs shall be based on a model developed by Mothers
Against Drunk Driving (MADD) victim panel or equivalent program approved by the
court.
(h) “Booked” means the administrative step taken after the arrested person is brought to
the police station, which involves entry of the person's name, the crime for which the
arrest was made, and other relevant facts on the police docket, and which may also
include photographing, fingerprinting, and the like.
See also Miss. Code Ann. § 63-11-5(6) (“The Commissioner of Public Safety and the
Mississippi Forensics Laboratory created pursuant to Section 45-1-17 are authorized to
adopt procedures, rules and regulations applicable to the Implied Consent Law.”).
1103 ADMINISTERING CHEMICAL TESTS FOR ALCOHOL OR DRUGS
§ 63-11-5 Implied consent to tests:
(1)(a) Any person who operates a motor vehicle upon the public highways, public roads
and streets of this state shall be deemed to have given his consent, subject to the
provisions of this chapter, to a chemical test or tests of his breath, blood or urine for the
purpose of determining alcohol concentration. A person shall give his consent to a
chemical test or tests of his breath, blood or urine for the purpose of determining the
presence in his body of any other substance which would impair a person's ability to
operate a motor vehicle.
Chemical tests that may be requested:
The Implied Consent Law allows not only a chemical test or tests of a person's breath, but
also blood or urine tests. All three methods are valid tests for determining whether a
person is DUI. See Fulton v. City of Starkville, 645 So. 2d 910, 913-914 (Miss. 1994).
§ 63-11-5 Tests administered upon reasonable grounds and probable cause:
(1)(b) The test or tests shall be administered at the direction of any authorized officer,
when such officer has reasonable grounds and probable cause to believe that the person
was driving or had under his actual physical control a motor vehicle upon the public
streets or highways of this state while under the influence of intoxicating liquor or any
other substance which had impaired such person's ability to operate a motor vehicle.
§ 63-11-5 Who is authorized to administer tests:
(2)(a) A breath analysis test must be administered by a person who has met all the
educational and training requirements of the appropriate course of study prescribed by the
Board on Law Enforcement Officers Standards and Training; however, sheriffs and
elected chiefs of police are exempt from the educational and training requirement. A
breath analysis test must not be given to any person within fifteen (15) minutes of
consumption of any substance by mouth.
(b) For purposes of this section, the term “authorized officer” means any highway patrol
officer, sheriff or his duly commissioned deputies, police officer in any incorporated
municipality, national park ranger, officer of a state-supported institution of higher
learning campus police force if such officer is exercising this authority in regard to a
violation that occurred on campus property, or security officer appointed and
commissioned pursuant to the Pearl River Valley Water Supply District Security Officer
Law of 1978 if such officer is exercising this authority in regard to a violation that
occurred within the limits of the Pearl River Valley Water Supply District.
§ 63-11-5 Observation period:
(2)(a) . . . A breath analysis test must not be given to any person within fifteen (15)
minutes of consumption of any substance by mouth.
See Rhymer v. State, 176 So. 3d 104, 107 (Miss. Ct. App. 2015) (“Deputy Cook testified
that Rhymer did not consume any foods or liquids between the time of the traffic stop and
the breath test. . . . Although conflicting testimony was presented about whether Rhymer
had tobacco in his mouth at the time Deputy Cook administered the breath test, the circuit
court judge determined Deputy Cook’s testimony to be the most credible.”).
Note: The Mississippi Department of Public Safety Guidelines and the Intoxilyzer 8000
Implied Consent Policies and Procedures Manual require that the person be observed for
20 minutes immediately before any breath sample is taken. This 20-minute observation
period does not require that a single officer observe the person being tested, but only that
“the person being tested has been observed” for 20 minutes immediately prior to
collecting the breath sample. See Gore v. State, 168 So.3d 1097, 1099 (Miss. Ct. App.
2013); Dominick v. State, 108 So. 3d 452, 455 (Miss. Ct. App. 2012); Hudspeth v. State,
28 So. 3d 600, 603 (Miss. Ct. App. 2009).
§ 63-11-5 Officer to inform of consequences for refusal:
(3) If the officer has reasonable grounds and probable cause to believe such person to
have been driving a motor vehicle upon the public highways, public roads, and streets of
this state while under the influence of intoxicating liquor or any other substance that has
impaired the person's ability to operate a motor vehicle, the officer shall inform the
person that his failure to submit to such chemical test or tests of his breath, blood or urine
shall result in the suspension of his privilege to operate a motor vehicle upon the public
streets and highways of this state for a period of ninety (90) days if the person has not
previously been convicted of a violation of Section 63-11-30, or, for a period of one (1)
year if the person has a prior conviction under Section 63-11-30.
§ 63-11-5 Informing of right to telephone for legal or medical assistance:
(5) Any person arrested under the provisions of this chapter shall be informed that he has
the right to telephone for the purpose of requesting legal or medical assistance
immediately after being booked for a violation under this chapter.
No duty to notify person of the right to an independent test:
There is no obligation to inform of Implied Consent rights beyond those specifically
delineated by the legislature. An officer does not need to give notification of the right to
an independent test. Moreover, a defendant's failure or inability to obtain an additional
test does not preclude the admissibility of the test taken by the officer:
Because [section 63-11-13] does not impose an affirmative duty on law
enforcement to give notification of the right to an independent test, and
Green is presumed to know his rights under the law, and was given the
opportunity to obtain legal assistance, this Court holds that there is no
merit to Green's claim that the results of the intoxilyzer test administered
by Officer McLaurin should be suppressed.
Green v. State, 710 So. 2d 862, 869 (Miss. 1998).
§ 63-11-41 Refusal admissible as evidence:
If a person under arrest refuses to submit to a chemical test under the provisions of this
chapter, evidence of refusal shall be admissible in any criminal action under this chapter.
Refusal to submit to an intoxilyzer test may be considered as evidence of guilt. Brewer v.
State, 812 So. 2d 1153, 1155 (Miss. Ct. App. 2002). It is considered physical instead of
testimonial evidence:
The very nature of a drunk driving charge makes it critical for the State to
obtain the necessary evidence before that evidence dissipates with time.
Therefore, the penalty of introducing the refusal serves an important state
interest in encouraging defendants to take the test. And as the refusal is
physical instead of testimonial, its introduction into evidence violates
neither the Fifth Amendment nor § 26.
Ricks v. State, 611 So. 2d 212, 216 (Miss. 1992).
See also Schlepphorst v. State, 201 So. 3d 517 (Miss. Ct. App. 2016) (“A urine test
constitutes a chemical test under the statute. His refusal of the urine test is admissible
under the statute.”); Fancher v. State, 185 So. 3d 1066, 1068 (Miss. Ct. App. 2016)
(“[R]efusal to submit to an Intoxilyzer test does not, by itself, substantiate a DUI
conviction. Rather, credible evidence on the whole must establish beyond a reasonable
doubt that a defendant had consumed either intoxicating liquor or another substance and
that the consumption impaired the defendant's ability to operate a motor vehicle.”).
1104 PROVING DUI
DUI ticket is notice of misdemeanor DUI:
The DUI ticket is notice of DUI, whether common law or per se, despite which particular
box is checked. See Deloach v. City of Starkville, 911 So. 2d 1014, 1018 (Miss. Ct. App.
2005) (“[We] find the argument to be without merit that the State failed to mark both box
(a) and (c) since the charge of DUI is the same regardless of the State's method of proving
it.”). DUI is the charged offense:
Leuer refused the intoxilyzer according to Officer Harper, and Leuer
testified contrarily that the machine would not register. The record reveals
that no test results were obtained. Since no BAC analysis was available,
subsection (1)(a) is the offense committed as it is a different method of
proving the same crime - DUI.
Leuer v. City of Flowood, 744 So. 2d 266, 269 (Miss. 1999).
A DUI ticket, which is an affidavit, may be amended as long as the defendant is not
unfairly surprised and afforded a fair opportunity to prepare a defense in the face of the
amendment. See Rule 3.07 of the Uniform Rules of Procedure for Justice Court.
Indictment is the charging instrument for felony DUI:
An indictment, not a traffic citation, is the charging instrument for felony DUI. See
Williams v. State, 708 So. 2d 1358, 1364 (Miss. 1998) (“Section 27 of the Mississippi
Constitution requires that a grand jury return an indictment before a prosecution for a
felony may be had.”).
§ 63-11-39 Reduction of charges prohibited:
The court having jurisdiction or the prosecutor shall not reduce any charge under this
chapter to a lesser charge.
See also Ostrander v. State, 803 So. 2d 1172, 1176 (Miss. 2002) (“The sole function of §
63-11-39 is to prohibit reduction of DUI charges to non-DUI charges.”); Mississippi
Commission on Judicial Performance v. Chinn, 611 So. 2d 849, 853 (Miss. 1992) (“The
statutes do not allow a judge to reduce a DUI to reckless driving.”).
§ 63-11-30 Variety of ways to prove DUI:
(1) It is unlawful for a person to drive or otherwise operate a vehicle within this state if
the person:
(a) Is under the influence of intoxicating liquor;
(b) Is under the influence of any other substance that has impaired the person's ability to
operate a motor vehicle;
(c) Is under the influence of any drug or controlled substance, the possession of which is
unlawful under the Mississippi Controlled Substances Law; or
(d) Has an alcohol concentration in the person's blood, based upon grams of alcohol per
one hundred (100) milliliters of blood, or grams of alcohol per two hundred ten (210)
liters of breath, as shown by a chemical analysis of the person's breath, blood or urine
administered as authorized by this chapter, of:
(i) Eight one-hundredths percent (.08%) or more for a person who is above the legal age
to purchase alcoholic beverages under state law;
(ii) Two one-hundredths percent (.02%) or more for a person who is below the legal age
to purchase alcoholic beverages under state law; or
(iii) Four one-hundredths percent (.04%) or more for a person operating a commercial
motor vehicle.
See also:
Warwick v. State, 179 So. 3d 1069, 1074 (Miss. 2015) (“[The officers] presented detailed
testimony supporting their opinions that Warwick had been driving under the influence of
marijuana, and these opinions ultimately were corroborated by Warwick's blood tests.”).
Parish v. State, 176 So. 3d 781, 786 (Miss. 2015) (“[The evidence] was sufficient to
prove not only that Parish had ingested marijuana before driving, but that he was driving
‘in a state of intoxication that lessens a person's normal ability for clarity and control.’”).
Moore v. State, 151 So. 3d 200, 203 (Miss. 2014) (“In the instant case, although it is
unclear whether Moore argues that the intoxilyzer machine was not working properly or
that he was unable to blow correctly due to a possible disability, Moore contends that his
blood alcohol content has not been established. However, as outlined above, under
common law DUI, an arrestee's blood alcohol level is not necessary.”).
Young v. City of Brookhaven, 693 So. 2d 1355, 1358 (Miss. 1997) (“Miss. Code Ann. §
63-11-30 merely sets forth numerous methods of committing the same crime.”).
Baughman v. State, 294 So. 3d 108, 113 (Miss. Ct. App. 2020) (“At trial, the State
presented evidence that Baughman's eyes were bloodshot, he exhibited eyelid tremors
during the Romberg test, he displayed a lack of convergence, and he did not successfully
complete the walk-and-turn test or the one-leg-stand test. Our supreme court and this
Court have found that similar evidence was sufficient to support a finding that the
defendant was under the influence of marijuana. Furthermore, Jason testified that
Baughman was the only person in the vehicle who smelled of marijuana and did not smell
of alcohol. He also testified that he found a “burnt, green leafy-like substance” in a pipe
that was found in Baughman's pocket and in a cigarillo that was found in his wallet. Nate
testified that he smelled marijuana on Baughman's person as well. We find that this was
sufficient evidence for any rational trier of fact to find that Baughman was guilty of being
under the influence of “any other substance.”).
Huhn v. City of Brandon, 121 So. 3d 947, 950 (Miss. Ct. App. 2013) (discussing proof of
common-law DUI).
Johnston three-prong test for admitting DUI test results:
Intoxilyzer test results are deemed valid if performed:
• according to approved methods;
• by a person certified to do so; and
• on a machine certified to be accurate.
See McIlwain v. State, 700 So. 2d 586, 590 (Miss. 1997) (“Where one of the safeguards is
deficient the State bears the burden of showing that the deficiency did not affect the
accuracy of the result.”); Johnston v. State, 567 So. 2d 237, 238 (Miss. 1990); Miller v.
State, 152 So. 3d 1184, 1188 (Miss. Ct. App. 2014) (“Here, through the testimony of
Trooper McBride, all three prongs of the test were satisfied. Trooper McBride testified as
to the proper procedure he followed in administering the test; he testified that he was
certified to operate the machine; and the certificate of calibration and Trooper McBride's
certification were admitted into the record.”); Ludwig v. State, 122 So. 3d 1229, 1232
(Miss. Ct. App. 2013) (“[I]f the calibration certificates bear the seal of the crime lab and
the signature of the one attesting to the truth of their contents, then the certificates are
considered self-authenticating.”).
But this three-prong test only applies if DUI test results are being presented at trial to
establish guilt. See Evans v. State, 93 So. 3d 62 (Miss. Ct. App. 2012) (“[Evans] refused
. . . to take the test at the proper time. [Thus, whether the officer] possessed sufficient
qualifications and certifications to administer breath-analysis tests is irrelevant.”).
Further,
[R]ecords pertaining to intoxilyzer inspection, maintenance, or calibration
are indeed nontestimonial in nature, and thus, their admission into
evidence is not violative of the Confrontation Clause of the Sixth
Amendment.
Matthies v. State, 85 So. 3d 838, 844 (Miss. 2012).
But such only applies to intoxilyzer inspection, maintenance or calibration records, and
not forensic laboratory reports containing a testimonial certification. See Bullcoming v.
New Mexico, 131 S.Ct. 2705, 2710 (2011) (“The accused’s right is to be confronted with
the analyst who made the certification, unless that analyst is unavailable at trial, and the
accused had an opportunity, pretrial, to cross-examine that particular scientist.”).
§ 63-11-30 Proving DUI 2nd offense:
(b) Second offense DUI. (i) Upon any second conviction of any person violating
subsection (1) of this section, the offenses being committed within a period of five (5)
years, the person shall be guilty of a misdemeanor, fined not less than Six Hundred
Dollars ($600.00) nor more than One Thousand Five Hundred Dollars ($1,500.00), shall
be imprisoned not less than five (5) days nor more than six (6) months and sentenced to
community service work for not less than ten (10) days nor more than six (6) months. The
minimum penalties shall not be suspended or reduced by the court and no prosecutor shall
offer any suspension or sentence reduction as part of a plea bargain.
(ii) Suspension of commercial driving privileges is governed by Section 63-1-216.
(iii) Eligibility for an interlock-restricted license is governed by Section 63-11-31 and
suspension of regular driving privileges is governed by Section 63-11-23.
The State must prove:
• the present DUI charge;
• the prior DUI conviction; and
• that the date of the prior DUI offense occurred within five years of the charged
offense.
McCool v. State, 930 So. 2d 465, 467 (Miss. Ct. App. 2006); Heidelberg v. State, 976 So.
2d 948, 950 (Miss. Ct. App. 2007).
See also Smith v. State, 950 So. 2d 1056, 1058 (Miss. Ct. App. 2007) (“The [statutory
phrase ‘the offenses being committed within a period of five (5) years’] requires that the
offenses must have been committed within a period of five years of each other, not the
convictions.”); Mason v. State, 799 So. 2d 884, 885 (Miss. Ct. App. 2001) (“[The record]
fails to clearly reflect any evidentiary basis that prior convictions were ever formally put
into evidence. Therefore, there is nothing . . . to support sentencing Mason as a DUI
second time offender.”).
Proof of prior DUI conviction and date of offense:
Proof of the prior DUI conviction and the date of the offense may be proved by putting
into evidence a certified abstract or certified copy of the prior conviction or by a sworn
written stipulation. See McIlwain v. State, 700 So. 2d 586, 589 (Miss. 1987) (“Abstracts
of court records, when properly certified, are clearly allowed to prove prior
convictions.”); Nelson v. State, 69 So. 3d 50, 52-53 (Miss. Ct. App. 2011) (“The record
shows that the abstract does not state the date of the offense. . . . However, the abstract . .
. does include the date of arrest. As the State asserts, a reasonable juror could infer that
the date of arrest for the DUI was the same date that the offense occurred.”).
Such applies to out-of-state convictions, too:
The abstracts in question in the present case were properly certified;
therefore, it was permissible for them to be used . . . to prove [the] prior
convictions. [T]he fact that the prior convictions occurred out-of-state
does not affect their validity or applicability in Mississippi.
Watkins v. State, 910 So. 2d 591, 596 (Miss. Ct. App. 2005).
§ 63-11-30 Out-of-state prior convictions:
(7) Out–of–state prior convictions. Convictions in another state, territory or possession of
the United States, or under the law of a federally recognized Native American tribe, of
violations for driving or operating a vehicle while under the influence of an intoxicating
liquor or while under the influence of any other substance that has impaired the person's
ability to operate a motor vehicle occurring within five (5) years before an offense shall
be counted for the purposes of determining if a violation of subsection (1) of this section
is a second, third, fourth or subsequent offense and the penalty that shall be imposed upon
conviction for a violation of subsection (1) of this section.
1105 DOUBLE JEOPARDY CONCERNS
Governing laws:
Fifth Amendment: “[N]or shall any person be subject for the same offence to be twice
put in jeopardy of life or limb; . . . .”
Art. 3 § 22 of the Mississippi Constitution: “No person's life or liberty shall be twice
placed in jeopardy for the same offense; but there must be an actual acquittal or
conviction on the merits to bar another prosecution.”
See also United States v. Dinitz, 424 U.S. 600, 606 (1976) (“The Double Jeopardy Clause
of the Fifth Amendment protects a defendant in a criminal proceeding against multiple
punishments or repeated prosecutions for the same offense.”).
Prior conviction an element of a DUI 2nd offense:
A prior conviction is a necessary element of a DUI 2nd offense. Thus, proof of the prior
conviction should be presented at trial–and not after the close of the evidence.
But sometimes the omission is excusable:
In this case, the trial judge initially instructed the parties that proof of
previous DUI convictions should be submitted after the close of the
evidence. However, prior convictions are elements of a felony DUI charge.
. . . [I]t appears that the omission of the essential element was due to the
trial judge's misunderstanding of the law. Because this failure was “mere
inadvertence,” it was not a double-jeopardy violation to allow the state to
reopen its case and present evidence of the defendant's prior conviction.
Lyle v. State, 987 So. 2d 948, 950-51 (Miss. 2008).
If the defendant is charged with DUI second offense and the State fails to prove a prior
DUI conviction, the court is required to give a directed verdict as to the DUI second
offense. The prosecution, though, may still proceed on the lesser-included DUI first
offense. See Ostrander v. State, 803 So. 2d 1172, 1177 (Miss. 2002). But if the judge
dismisses the DUI charge without expressly limiting the directed verdict to only the DUI
second offense, then double jeopardy attaches to both the DUI second offense and the
lesser-included DUI first offense. See Jamison v. City of Carthage, 864 So. 2d 1050, 1053
(Miss. Ct. App. 2004) (“Although the municipal judge could have dismissed only that
part of the affidavit charging DUI second and allowed the City to proceed on DUI first,
the judge dismissed the entire DUI charge against Jamison. When the judgment was
entered, jeopardy attached.”).
Administrative driver’s license suspension is a remedial measure:
Civil sanctions ordinarily do not invoke the double jeopardy prohibition. Thus, an
administrative driver's license suspension, even though it may have punitive aspects, is
viewed as a remedial measure. See Keyes v. State, 708 So. 2d 540, 548 (Miss.
1998)(“[T]he Double Jeopardy Clauses of the United States and Mississippi Constitutions
do not preclude criminal prosecution for violation of Miss. Code Ann. § 63-11-30
subsequent to administrative license suspension pursuant to § 63-11-23(2).”).
1106 DISCOVERY
See Section 1416 (“Disclosure and Discovery”) in Chapter 14 of the Manual.
1107 SENTENCING
Apply DUI penalties in effect at time of the offense:
A DUI offender is subject to the DUI laws in effect at the time of the offense. Boyd v.
State, 751 So. 2d 1050, 1054 (Miss. Ct. App. 1998).
§ 63-11-30 DUI 1st offense penalties:
(2) Except as otherwise provided in subsection (3) of this section (Zero Tolerance for
Minors):
(a) First offense DUI. (i) Upon conviction of any person for the first offense of violating
subsection (1) of this section where chemical tests under Section 63-11-5 were given, or
where chemical test results are not available, the person shall be fined not less than Two
Hundred Fifty Dollars ($250.00) nor more than One Thousand Dollars ($1,000.00), or
imprisoned for not more than forty-eight (48) hours in jail, or both; the court shall order
the person to attend and complete an alcohol safety education program as provided in
Section 63-11-32 within six (6) months of sentencing. The court may substitute
attendance at a victim impact panel instead of forty-eight (48) hours in jail.
(ii) Suspension of commercial driving privileges is governed by Section 63-1-216.
(iii) A qualifying first offense may be nonadjudicated by the court under subsection (14)
of this section. The holder of a commercial driver's license or a commercial learning
permit is ineligible for nonadjudication.
(iv) Eligibility for an interlock-restricted license is governed by Section 63-11-31 and
suspension of regular driving privileges is governed by Section 63-11-23.
§ 63-11-30 DUI 2nd offense penalties:
(b) Second offense DUI. (i) Upon any second conviction of any person violating
subsection (1) of this section, the offenses being committed within a period of five (5)
years, the person shall be guilty of a misdemeanor, fined not less than Six Hundred
Dollars ($600.00) nor more than One Thousand Five Hundred Dollars ($1,500.00), shall
be imprisoned not less than five (5) days nor more than six (6) months and sentenced to
community service work for not less than ten (10) days nor more than six (6) months. The
minimum penalties shall not be suspended or reduced by the court and no prosecutor shall
offer any suspension or sentence reduction as part of a plea bargain.
(ii) Suspension of commercial driving privileges is governed by Section 63-1-216.
(iii) Eligibility for an interlock-restricted license is governed by Section 63-11-31 and
suspension of regular driving privileges is governed by Section 63-11-23.
. . .
(e) Any person convicted of a second or subsequent violation of subsection (1) of this
section shall receive an in-depth diagnostic assessment, and if as a result of the
assessment is determined to be in need of treatment for alcohol or drug abuse, the person
must successfully complete treatment at a program site certified by the Department of
Mental Health. Each person who receives a diagnostic assessment shall pay a fee
representing the cost of the assessment. Each person who participates in a treatment
program shall pay a fee representing the cost of treatment.
(f) The use of ignition-interlock devices is governed by Section 63-11-31.
. . .
(8) Charging of subsequent offenses. For the purposes of determining how to impose the
sentence for a second, third, fourth or subsequent conviction under this section, the
affidavit or indictment shall not be required to enumerate previous convictions. It shall
only be necessary that the affidavit or indictment states the number of times that the
defendant has been convicted and sentenced within the past five (5) years under this
section to determine if an enhanced penalty shall be imposed. The amount of fine and
imprisonment imposed in previous convictions shall not be considered in calculating
offenses to determine a second, third, fourth or subsequent offense of this section.
. . .
(11) Ignition interlock. If the court orders installation and use of an ignition-interlock
device as provided in Section 63-11-31 for every vehicle operated by a person convicted
or nonadjudicated under this section, each device shall be installed, maintained and
removed as provided in Section 63-11-31.
1108 REPORTING DUI CONVICTIONS
§ 63-11-30 Judge to sign that person employed or waived right to an attorney:
(6) DUI citations. (a) Upon conviction of a violation of subsection (1) of this section, the
trial judge shall sign in the place provided on the traffic ticket, citation or affidavit stating
that the person arrested either employed an attorney or waived his right to an attorney
after having been properly advised. If the person arrested employed an attorney, the name,
address and telephone number of the attorney shall be written on the ticket, citation or
affidavit. The court clerk must immediately send a copy of the traffic ticket, citation or
affidavit, and any other pertinent documents concerning the conviction or other order of
the court, to the Department of Public Safety as provided in Section 63-11-37.
(b) A copy of the traffic ticket, citation or affidavit and any other pertinent documents,
having been attested as true and correct by the Commissioner of Public Safety, or his
designee, shall be sufficient proof of the conviction for purposes of determining the
enhanced penalty for any subsequent convictions of violations of subsection (1) of this
section. The Department of Public Safety shall maintain a central database for verification
of prior offenses and convictions.
§ 63-11-37 Documentation to be sent to Public Safety:
(1) It shall be the duty of the trial judge, upon conviction of a person under Section
63-11-30, to mail or otherwise deliver in a method prescribed by the commissioner a true
and correct copy of the traffic ticket, citation or affidavit evidencing the arrest that
resulted in the conviction and a certified copy of the abstract of the court record within
five (5) days to the Commissioner of Public Safety at Jackson, Mississippi. The trial
judge in municipal and justice courts shall show on the docket and the trial judge in
courts of record shall show on the minutes:
(a) Whether a chemical test was given and the results of the test, if any; and
(b) Whether conviction was based in whole or in part on the results of such a test.
(2) The abstract of the court record shall show the date of the conviction, the results of the
test if there was one, and the penalty, so that a record of same may be made by the
Department of Public Safety.
(3) For the purposes of Section 63-11-30, a bond forfeiture shall operate as and be
considered as a conviction.
(4) A trial court clerk who fails to provide a true and correct copy of the traffic ticket,
citation or affidavit evidencing the arrest that resulted in the conviction and a copy of the
abstract of the court record within five (5) days as required in subsection (1) of this
section is guilty of a civil violation and shall be fined One Hundred Dollars ($100.00), for
which civil fine the clerk bears sole and personal responsibility. Each instance of failure
is a separate violation.
1109 DRIVING AFTER SUSPENSION OR REVOCATION
§ 63-11-40 Penalties:
Any person whose driver's license, or driving privilege has been cancelled, suspended or
revoked under the provisions of this chapter and who drives any motor vehicle upon the
highways, streets or public roads of this state, while such license or privilege is cancelled,
suspended or revoked, shall be guilty of a misdemeanor and upon conviction shall be
punished by imprisonment for not less than forty-eight (48) hours nor more than six (6)
months, and fined not less than two hundred dollars ($200.00) nor more than five
hundred dollars ($500.00).
§ 63-11-40 Additional suspension of driver’s license or driving privileges:
The commissioner of public safety shall suspend the driver's license or driving privilege
of any person convicted under the provisions of this section for an additional six (6)
months. Such suspension shall begin at the end of the original cancellation, suspension or
revocation and run consecutively.
1110 ZERO TOLERANCE FOR MINORS
§ 63-11-30
(3) Zero Tolerance for Minors. (a) This subsection shall be known and may be cited as
Zero Tolerance for Minors. The provisions of this subsection shall apply only when a
person under the age of twenty-one (21) years has a blood alcohol concentration of two
one-hundredths percent (.02%) or more, but lower than eight one-hundredths percent
(.08%). If the person's blood alcohol concentration is eight one-hundredths percent
(.08%) or more, the provisions of subsection (2) shall apply.
(b)(i) A person under the age of twenty-one (21) is eligible for nonadjudication of a
qualifying first offense by the court pursuant to subsection (14) of this section.
(ii) Upon conviction of any person under the age of twenty-one (21) years for the first
offense of violating subsection (1) of this section where chemical tests provided for under
Section 63-11-5 were given, or where chemical test results are not available, the person
shall be fined Two Hundred Fifty Dollars ($250.00); the court shall order the person to
attend and complete an alcohol safety education program as provided in Section 63-11-32
within six (6) months. The court may also require attendance at a victim impact panel.
(c) A person under the age of twenty-one (21) years who is convicted of a second
violation of subsection (1) of this section, the offenses being committed within a period
of five (5) years, shall be fined not more than Five Hundred Dollars ($500.00).
(d) A person under the age of twenty-one (21) years who is convicted of a third or
subsequent violation of subsection (1) of this section, the offenses being committed
within a period of five (5) years, shall be fined not more than One Thousand Dollars
($1,000.00).
(e) License suspension is governed by Section 63-11-23 and ignition interlock is
governed by Section 63-11-31.
(f) Any person under the age of twenty-one (21) years convicted of a third or subsequent
violation of subsection (1) of this section must complete treatment of an alcohol or drug
abuse program at a site certified by the Department of Mental Health.
See Palmer v. City of Oxford, 860 So. 2d 1203, 1214 (Miss. 2003) (“Since Palmer's BAC
level was .127% it is not within the parameters of the Zero Tolerance for Minor's
provision of the Implied Consent Law.”); Baker v. State, 99 So. 3d 241, 244 (Miss. Ct.
App. 2012) (“The field AlcoSensor test is insufficient evidence of Baker's blood alcohol
content for nonajudication [under the Zero Tolerance for Minors Act].”).
See also Miss. Code Ann. § 43-21-159 (“However, unless the cause has been transferred,
or unless the child has previously been the subject of a transfer from the youth court to
the circuit court for trial as an adult and was convicted, the youth court shall have power
on its own motion to remove jurisdiction from any criminal court of any offense
including . . a violation of the Mississippi Implied Consent Law . . . committed by a child
in a matter under the jurisdiction of the youth court and proceed therewith in accordance
with the provisions of this chapter.”). .
1111 ENDANGERING A CHILD BY DRIVING UNDER THE INFLUENCE
§ 63-11-30 If transporting a child under 16 years of age:
(12) DUI child endangerment. A person over the age of twenty-one (21) who violates
subsection (1) of this section while transporting in a motor vehicle a child under the age
of sixteen (16) years is guilty of the separate offense of endangering a child by driving
under the influence of alcohol or any other substance which has impaired the person's
ability to operate a motor vehicle. The offense of endangering a child by driving under the
influence of alcohol or any other substance which has impaired the person's ability to
operate a motor vehicle shall not be merged with an offense of violating subsection (1) of
this section for the purposes of prosecution and sentencing. An offender who is convicted
of a violation of this subsection shall be punished as follows:
(a) A person who commits a violation of this subsection which does not result in the
serious injury or death of a child and which is a first conviction shall be guilty of a
misdemeanor and, upon conviction, shall be fined not more than One Thousand Dollars
($1,000.00) or shall be imprisoned for not more than twelve (12) months, or both;
(b) A person who commits a violation of this subsection which does not result in the
serious injury or death of a child and which is a second conviction shall be guilty of a
misdemeanor and, upon conviction, shall be fined not less than One Thousand Dollars
($1,000.00) nor more than Five Thousand Dollars ($5,000.00) or shall be imprisoned for
one (1) year, or both;
See also Miss. Code Ann. § 21-13-19 (“All offenses under the penal laws of this state
which are misdemeanors, together with the penalty provided for violation thereof, are
hereby made, without further action of the municipal authorities, criminal offenses
against the municipality in whose corporate limits the offenses may have been committed
to the same effect as though such offenses were made offenses against the municipality
by separate ordinance in each case. However, for such misdemeanor, any penalty of
incarceration is hereby limited to no more than six (6) months in jail, and any fine is
hereby limited to a maximum of one thousand dollars ($1,000.00) for each such violation
in any case tried without a jury. . . .”).
1112 NONADJUDICATION
§ 63-11-30 “Nonadjudication” defined:
(14) Nonadjudication. (a) For the purposes of this chapter, “nonadjudication” means that
the court withholds adjudication of guilt and sentencing, either at the conclusion of a trial
on the merits or upon the entry of a plea of guilt by a defendant, and places the defendant
in a nonadjudication program conditioned upon the successful completion of the
requirements imposed by the court under this subsection.
§ 63-11-30 Criteria for a qualifying first offense:
(14)(b) A person is eligible for nonadjudication of an offense under this Section 63-11-30
only one (1) time under any provision of a law that authorizes nonadjudication and only
for an offender:
(i) Who has successfully completed all terms and conditions imposed by the court after
placement of the defendant in a nonadjudication program;
(ii) Who was not operating a commercial vehicle at the time of the offense;
(iii) Who has not previously been convicted of and does not have pending any former or
subsequent charges under this section; and
(iv) Who has provided the court with justification as to why nonadjudication is
appropriate.
§ 63-11-30 Conditions to be imposed by the court:
(14)(c) Nonadjudication may be initiated upon the filing of a petition for nonadjudication
or at any stage of the proceedings in the discretion of the court; the court may withhold
adjudication of guilt, defer sentencing, and upon the agreement of the offender to
participate in a nonadjudication program, enter an order imposing requirements on the
offender for a period of court supervision before the order of nonadjudication is entered.
Failure to successfully complete a nonadjudication program subjects the person to
adjudication of the charges against him and to imposition of all penalties previously
withheld due to entrance into a nonadjudication program. The court shall immediately
inform the commissioner of the conviction as required in Section 63-11-37.
(i) The court shall order the person to:
1. Pay the nonadjudication fee imposed under Section 63-11-31 if applicable;
2. Pay all fines, penalties and assessments that would have been imposed for conviction;
3. Attend and complete an alcohol safety education program as provided in Section
63-11-32 within six (6) months of the date of the order;
4. a. If the court determines that the person violated this section with respect to alcohol or
intoxicating liquor, the person must install an ignition-interlock device on every motor
vehicle operated by the person, obtain an interlock-restricted license, and maintain that
license for one hundred twenty (120) days or suffer a one-hundred-twenty-day suspension
of the person's regular driver's license, during which time the person must not operate any
vehicle.
b. If the court determines that the person violated this section by operating a vehicle when
under the influence of a substance other than alcohol that has impaired the person's ability
to operate a motor vehicle, including any drug or controlled substance which is unlawful
to possess under the Mississippi Controlled Substances Law, the person must submit to a
one-hundred-twenty-day period of a nonadjudication program that includes court-ordered
drug testing at the person's own expense not less often than every thirty (30) days, during
which time the person may drive if compliant with the terms of the program, or suffer a
one-hundred-twenty-day suspension of the person's regular driver's license, during which
time the person will not operate any vehicle.
(ii) Other conditions that may be imposed by the court include, but are not limited to,
alcohol or drug screening, or both, proof that the person has not committed any other
traffic violations while under court supervision, proof of immobilization or impoundment
of vehicles owned by the offender if required, and attendance at a victim-impact panel.
§ 63-11-30 When the court may enter an order of nonadjudication:
(14)(d) The court may enter an order of nonadjudication only if the court finds, after a
hearing or after ex parte examination of reliable documentation of compliance, that the
offender has successfully completed all conditions imposed by law and previous orders of
the court. The court shall retain jurisdiction over cases involving nonadjudication for a
period of not more than two (2) years.
§ 63-11-30 Clerk to forward record of nonadjudication to Public Safety:
(14)(e) (i) The clerk shall immediately forward a record of every person placed in a
nonadjudication program and of every nonadjudication order to the Department of Public
Safety for inclusion in the permanent confidential registry of all cases that are
nonadjudicated under this subsection (14).
(ii) Judges, clerks and prosecutors involved in the trial of implied consent violations and
law enforcement officers involved in the issuance of citations for implied consent
violations shall have access to the confidential registry for the purpose of determining
whether a person has previously been the subject of a nonadjudicated case and 1. is
therefore ineligible for another nonadjudication; 2. is ineligible as a first offender for a
violation of this section; or 3. is ineligible for expunction of a conviction of a violation of
this section.
(iii) The Driver Services Bureau of the department shall have access to the confidential
registry for the purpose of determining whether a person is eligible for a form of license
not restricted to operating a vehicle equipped with an ignition-interlock device.
(iv) The Mississippi Alcohol Safety Education Program shall have access to the
confidential registry for research purposes only.
1113 VEHICLE IMPOUNDMENT, IMMOBILIZATION AND IGNITION LOCKS
§ 63-11-30 If installation and use of an ignition-interlock device is ordered:
(11) Ignition interlock. If the court orders installation and use of an ignition-interlock
device as provided in Section 63-11-31 for every vehicle operated by a person convicted
or nonadjudicated under this section, each device shall be installed, maintained and
removed as provided in Section 63-11-31.
§ 63–11–31 Supplemental to Section 63–11–30:
(1)(a) The provisions of this section are supplemental to the provisions of Section
63-11-30.
§ 63–11–31 “Ignition-interlock device” and “interlock restricted license” defined:
(1)(b)(i) “Ignition-interlock device” means a device approved by the Department of
Public Safety that connects a motor vehicle ignition system to a breath-alcohol analyzer
and prevents a motor vehicle ignition from starting if the driver's blood alcohol level
exceeds the calibrated setting on the device.
(ii) “Interlock-restricted license” means a driver's license bearing a restriction that limits
the person to operation of vehicles equipped with an ignition-interlock device.
(iii) “Court-ordered drug-testing program” means a program that qualifies under Section
63-11-31.1.
See also Miss. Code Ann. § 63-1-5(3) (“An interlock-restricted license allows a person to
drive only a motor vehicle equipped with an iginition-interlock device.”).
§ 63–11–31 Required on all motor vehicles owned or operated by the person:
(1)(c) A person who can exercise the privilege of driving only under an
interlock-restricted license must have an ignition-interlock device installed and operating
on all motor vehicles owned or operated by the person.
(d) A person who installs an ignition-interlock device may obtain an interlock-restricted
license.
§ 63–11–31 Who bears the costs?
(2)(a)(i) The cost of installation and operation of an ignition-interlock device shall be
borne by the person to whom an interlock-restricted driver's license is issued, and the
costs of court-ordered drug testing shall be borne by the person so ordered, unless the
person is determined by the court to be indigent.
(ii) The cost of participating in a court-ordered drug-testing program shall be borne by the
person, unless the person is determined by the court to be indigent.
§ 63–11–31 Fees to be imposed by the court:
(2)(b)(i) A person convicted under Section 63-11-30 shall be assessed by the court, in
addition to the criminal fines, penalties and assessments provided by law for violations of
Section 63-11-30, a fee of Fifty Dollars ($50.00), to be deposited in the Interlock Device
Fund in the State Treasury unless the person is determined by the court to be indigent.
(ii) A person nonadjudicated under Section 63-11-30 shall be assessed by the court, in
addition to the criminal fines, penalties and assessments provided by law for violations of
Section 63-11-30, a fee of Two Hundred Fifty Dollars ($250.00) to be deposited in the
Interlock Device Fund in the State Treasury unless the person is determined by the court
to be indigent.
§ 63–11–31 Public Safety to promulgate rules and regulations:
(3)(a) The Department of Public Safety shall promulgate rules and regulations for the use
of an ignition-interlock device. The Department of Public Safety shall approve which
vendors shall be used to furnish the systems, may assess fees to the vendors, and shall
prescribe the maximum costs to the offender for installation, removal, monthly operation,
periodic inspections, calibrations and repairs.
§ 63–11–31 Proof of installation and proper operation of the device:
(3)(b) A person who has an ignition-interlock device installed in a vehicle shall:
(i) Provide proof of the installation of the device and periodic reporting for verification of
the proper operation of the device;
(ii) Have the system monitored for proper use and accuracy as required by departmental
regulation;
(iii) Pay the reasonable cost of leasing or buying, monitoring, and maintaining the device
unless the person is determined to be indigent; and
(iv) Obtain an ignition-interlock driver's license.
§ 63–11–31 Interlock-restricted driver’s license violations:
(4)(a)(i) A person who is limited to driving only under an interlock-restricted driver's
license shall not operate a vehicle that is not equipped with an ignition-interlock device.
(ii) A person prohibited from operating a motor vehicle that is not equipped with an
ignition-interlock device may not solicit or have another person attempt to start or start a
motor vehicle equipped with such a device.
(iii) A person may not start or attempt to start a motor vehicle equipped with an
ignition-interlock device for the purpose of providing an operable motor vehicle to a
person who is prohibited from operating a motor vehicle that is not equipped with an
ignition-interlock device.
(iv) A person may not tamper with, or in any way attempt to circumvent, the operation of
an ignition-interlock device that has been installed in a motor vehicle.
(v) A person may not knowingly provide a motor vehicle not equipped with a functioning
ignition-interlock device to another person who the provider of the vehicle knows or
should know is prohibited from operating a motor vehicle not equipped with an
ignition-interlock device.
(b) A violation of this subsection (4) is a misdemeanor and upon conviction the violator
shall be fined an amount not less than Two Hundred Fifty Dollars ($250.00) nor more
than One Thousand Dollars ($1,000.00) or imprisoned for not more than six (6) months,
or both, unless the starting of a motor vehicle equipped with an ignition-interlock device
is done for the purpose of safety or mechanical repair of the device or the vehicle, and the
person subject to the restriction does not operate the vehicle.
§ 63–11–31 Criteria for obtaining an interlock restricted license:
(5) In order to obtain an interlock-restricted license, a person must:
(a) Be otherwise qualified to operate a motor vehicle, and will be subject to all other
restrictions on the privilege to drive provided by law;
(b) Submit proof that an ignition-interlock device is installed and operating on all motor
vehicles operated by the person; and
(c) Pay the fee set forth in Section 63-1-43 to obtain the license without regard to
indigence; no license reinstatement fee under Section 63-1-46 shall be charged for a
person obtaining an interlock-restricted license.
§ 63–11–31 Impounding or immobilizing vehicle:
(6)(a) In addition to the penalties authorized for any second or subsequent conviction
under Section 63-11-30, the court shall order that all vehicles owned by the offender that
are not equipped with an ignition-interlock device must be either impounded or
immobilized pending further order of the court lifting the offender's driving restriction.
However, no county, municipality, sheriff's department or the Department of Public
Safety shall be required to keep, store, maintain, serve as a bailee or otherwise exercise
custody over a motor vehicle impounded under the provisions of this section. The cost
associated with any impoundment or immobilization shall be paid by the person
convicted without regard to ability to pay.
(b) A person may not tamper with, or in any way attempt to circumvent, vehicle
immobilization or impoundment ordered by the court under this section. A violation of
this paragraph (b) is a misdemeanor and, upon conviction, the violator shall be fined an
amount not less than Two Hundred Fifty Dollars ($250.00) nor more than One Thousand
Dollars ($1,000.00) or imprisoned for not more than six (6) months, or both.
§ 63–11–31 Interlock Device Fund:
(7)(a) The Department of Public Safety shall promulgate rules and regulations for the use
of monies in the Interlock Device Fund to offset the cost of interlock device installation
and operation by and court-ordered drug testing of indigent offenders.
(b) The court shall determine a defendant's indigence based upon whether the defendant
has access to adequate resources to pay the ignition-interlock fee and the costs of
installation and maintenance of an ignition-interlock device, or the costs of court-ordered
drug testing or both, and may further base the determination of indigence on proof of
enrollment in one or more of the following types of public assistance:
(i) Temporary Assistance for Needy Families (TANF);
(ii) Medicaid assistance;
(iii) The Supplemental Nutritional Assistance Program (SNAP), also known as “food
stamps”;
(iv) Supplemental security income (SSI);
(v) Participation in a federal food distribution program;
(vi) Federal housing assistance;
(vii) Unemployment compensation; or
(viii) Other criteria determined appropriate by the court.
(c) No more than ten percent (10%) of the money in the Interlock Device Fund in any
fiscal year shall be expended by the department for the purpose of administering the fund.
(d) The Commissioner of the Department of Public Safety must promulgate regulations
for the program and for vendors, including at a minimum:
(i) That the offender must pay the cost of the testing program or, if the court finds the
offender to be indigent, that the cost be paid from the Interlock Device Fund.
(ii) How indigent funds will be accessed by the vendors, and the maximum cost to the
offender or the fund.
(e)(i) Money in the Interlock Device Fund will be appropriated to the department to cover
part of the costs of court-ordered drug testing and installing, removing and leasing
ignition-interlock devices for indigent people who are required, because of a conviction
or nonadjudication under Section 63-11-30, to install an ignition-interlock device in all
vehicles operated by the person.
(ii) If money is available in the Interlock Device Fund, the department shall pay to the
vendor, for one (1) vehicle per offender, up to Fifty Dollars ($50.00) for the cost of
installation, up to Fifty Dollars ($50.00) for the cost of removal, and up to Thirty Dollars
($30.00) monthly for verified active usage of the ignition-interlock device. The
department shall not pay any amount above what an offender would be required to pay for
the installation, removal or usage of an ignition-interlock device.
(iii) If money is available in the Interlock Device Fund, the department shall pay to the
vendor an amount not to exceed that promulgated by the Forensics Laboratory for
court-ordered drug testing. The department shall not pay any amount above what an
offender would be required to pay individually.
§ 63–11–31 Reinstatement of the regular driver’s license:
(8) In order to reinstate a form of driver's license that is not restricted to operation of an
ignition-interlock equipped vehicle, the person must submit proof to the Department of
Public Safety to substantiate the person's eligibility for an unrestricted license, which may
be a court order indicating completion of sentence or final order of nonadjudication; in
the absence of a court order, the proof may consist of the following or such other proof as
the commissioner may set forth by regulation duly adopted under the Administrative
Procedures Act:
(a) Proof of successful completion of an alcohol safety program as provided in Section
63-11-32 if so ordered by the court;
(b) Payment of the reinstatement fee required under Section 63-1-46(1)(a);
(c) Payment of the driver's license fee required under Section 63-1-43;
(d) A certificate of liability insurance or proof of financial responsibility; and
(e)(i) For those driving under an interlock-restricted license, a declaration from the
vendor, in a form provided or approved by the Department of Public Safety, certifying
that there have been none of the following incidents in the last thirty (30) days:
1. An attempt to start the vehicle with a breath alcohol concentration of 0.04 or more;
2. Failure to take or pass any required retest; or
3. Failure of the person to appear at the ignition-interlock device vendor when required
for maintenance, repair, calibration, monitoring, inspection, or replacement of the device;
or
(ii) For a person who violated Section 63-11-30 with respect to drugs other than alcohol,
proof of successful compliance with all court-ordered drug testing; or
(iii) Both subparagraphs (i) and (ii) of this paragraph (e) if applicable.
§ 63–11–31 When court may extend interlock-restricted period:
(9) The court may extend the interlock-restricted period if the person had a violation in
the last thirty (30) days.
§ 63–11–31 Jurisdiction under section 63-11-31
(10) The court that originally ordered installation of the ignition-interlock device for a
violation of Section 63-11-30 and a court in the municipality or county in which the
violation occurred have jurisdiction over an offense under this section.
§ 63–11–31 Criteria for converting to another form of license
(11) A person who voluntarily obtains an interlock-restricted license may convert at any
time to any other form of license for which the person is qualified.
§ 63–11–31 Policies for reporting and sharing ignition-interlock data
(12)(a) The Department of Public Safety shall require all manufacturers of
ignition-interlock devices to report ignition-interlock data in a consistent and uniform
format as prescribed by the Department of Public Safety. Ignition-interlock vendors must
also use the uniform format when sharing data with courts ordering an ignition interlock,
with alcohol safety education programs, or with other treatment providers.
(b) The Department of Public Safety shall require all vendors of drug testing programs
approved under Section 63-11-31.1 to report test results in a consistent and uniform
format as prescribed by the Forensics Laboratory. Vendors must report test results to the
court on a monthly basis, except that a positive test or failure of the testing participant to
submit to verification must be reported to the court within five (5) days of verification of
the positive test or the failure to submit.
§ 63–11–31.1 Mississippi Forensics Laboratory to approve vendors:
(1) The Mississippi Forensics Laboratory shall promulgate rules and regulations for
court-ordered drug testing of DUI/other drug violators and shall approve which vendors
are eligible to be utilized by the trial courts when ordering defendants to undergo drug
testing as a condition of continuing to exercise the privilege to drive. The Forensics
Laboratory may assess fees to the vendors, and shall prescribe the maximum costs to the
offender for drug testing. The Forensics Laboratory may seek the advice of the State Drug
Court Advisory Committee in fulfilling these duties.
(2) The Forensics Laboratory must evaluate proposals made by prospective vendors for
acceptability, including, without limitation, the following factors:
(a) A description of the method used for assessment;
(b) The frequency with which the offender will be tested;
(c) The procedure used by the vendor to ensure the accuracy of the test results;
(d) The length of time allowed the offender to provide a biological sample after being
given notice;
(e) The frequency with which the vendor will make reports to the court;
(f) The list of approved sites for the collection of biological samples for testing.
(3) The Forensics Laboratory must promulgate regulations for the program and for
vendors, including at a minimum:
(a) That the offender must pay the cost of the testing program or, if the court finds the
offender to be indigent, that the cost be paid from the Interlock Device Fund.
(b) How indigent funds will be accessed by the vendors, and the maximum cost to the
offender or the fund.
(4) The Forensics Laboratory will provide the list of approved vendors, subject to
continuous updating, to the Mississippi Judicial College for dissemination to the trial
courts.
1114 LICENSE SUSPENSIONS AND RESTRICTIONS
§ 63-1-58 License suspensions and restrictions to run consecutively:
Suspension or restriction of driving privileges for any person convicted of or
nonadjudicated for violations of the Implied Consent Law or any administrative
suspension imposed under this chapter shall run consecutively and not concurrently.
See also Miss. Code Ann. 63-11-30(10) (“License suspensions and restrictions to run
consecutively. Suspension or restriction of driving privileges for any person convicted of
or nonadjudicated for violations of subsection (1) of this section shall run consecutively
to and not concurrently with any other administrative license suspension.”).
§ 63-11-21 Refusal to submit; effect:
If a person refuses upon the request of a law enforcement officer to submit to a chemical
test of his breath designated by the law enforcement agency as provided in Section
63-11-5, none shall be given, but the officer shall at that point demand the driver's license
of the person, who shall deliver his driver's license into the hands of the officer. If a
person refuses to submit to a chemical test under the provisions of this chapter, the person
shall be informed by the law enforcement officer that the refusal to submit to the test shall
subject him to suspension of the privilege to operate a motor vehicle. The officer shall
give the driver a receipt for his license on forms prescribed and furnished by the
Commissioner of Public Safety. The officer shall forward the driver's license together
with a sworn report to the Commissioner of Public Safety stating that he had reasonable
grounds and probable cause to believe the person had been operating a motor vehicle
upon the public highways, public roads and streets of this state while under the influence
of intoxicating liquor or any other substance which may impair a person's mental or
physical ability, stating the grounds, and that the person had refused to submit to the
chemical test of his breath upon request of the law enforcement officer.
§ 63-11-23 Review of refusal; sanctions:
(1) Administrative license suspension for test refusal. The Commissioner of Public
Safety, or his authorized agent, shall review the sworn report by a law enforcement
officer as provided in Section 63-11-21.
(a) If upon review the Commissioner of Public Safety, or his authorized agent, finds (i)
that the law enforcement officer had reasonable grounds and probable cause to believe the
person had been operating a motor vehicle upon the public highways, public roads and
streets of this state while under the influence of intoxicating liquor or any other substance
that may impair a person's mental or physical ability; (ii) that the person refused to submit
to the chemical test of the person's breath, blood or urine upon request of the officer; and
(iii) that the person was informed that his license and driving privileges would be
suspended or denied if he refused to submit to the chemical test of his breath, blood or
urine, then the Commissioner of Public Safety, or his authorized agent, shall give notice
to the licensee that his license or permit to drive, or any nonresident operating privilege,
shall be suspended thirty (30) days after the date of the notice for a period of ninety (90)
days if the person has not previously been convicted of or nonadjudicated for a violation
of Section 63-11-30, or, for a period of one (1) year if the person was previously
convicted or nonadjudicated under Section 63-11-30. If the commissioner or his
authorized agent determines that the license or permit should not be suspended, he shall
return the license or permit to the licensee.
(b) The notice of suspension shall be in writing and conform to Section 63-1-52.
(c) A person may continue to drive on either an interlock-restricted license or under a
drug-testing program if so ordered by a court in the course of a criminal proceeding for a
violation of Section 63-11-30.
(2) Extension or suspension of privilege to drive; request for trial. (a) If the chemical
testing of a person's breath indicates the blood alcohol concentration was eight
one-hundredths percent (.08%) or more for persons who are above the legal age to
purchase alcoholic beverages under state law, or two one-hundredths percent (.02%) or
more for persons who are below the legal age to purchase alcoholic beverages under state
law, based upon grams of alcohol per one hundred (100) milliliters of blood or grams of
alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of the
person's blood, breath, or urine, the arresting officer shall seize the license and give the
driver a receipt for his license on forms prescribed by the Commissioner of Public Safety
and shall promptly forward the license together with a sworn report to the Commissioner
of Public Safety. The receipt given a person shall be valid as a permit to operate a motor
vehicle for thirty (30) days in order that the defendant may be processed through the court
having original jurisdiction and a final disposition had.
(b) If the defendant requests a trial within thirty (30) days and trial is not commenced
within thirty (30) days, then the court shall determine if the delay in the trial is the fault of
the defendant or his counsel. If the court finds that it is not the fault of the defendant or
his counsel, then the court shall order the defendant's privileges to operate a motor
vehicle to be extended until the defendant is convicted upon final order of the court.
(c) If a receipt or permit to drive issued under this subsection expires without a trial
having been requested as provided in this subsection, then the Commissioner of Public
Safety, or his authorized agent, shall suspend the license or permit to drive or any
nonresident operating privilege for the applicable period of time as provided in subsection
(1) of this section.
(3) Offenders driving without a license. If the person is a resident without a license or
permit to operate a motor vehicle in this state, the Commissioner of Public Safety, or his
authorized agent, shall deny to the person the issuance of a license or permit for a period
of one (1) year beginning thirty (30) days after the date of notice of the suspension.
(4) Appeal. It shall be the duty of the municipal prosecuting attorney, county prosecuting
attorney, an attorney employed under the provisions of Section 19-3-49, or if there is not
a prosecuting attorney for the municipality or county, the duty of the district attorney to
represent the state in any hearing on a de novo appeal held under the provisions of
Section 63-11-25, Section 63-11-37 or Section 63-11-30.
(5) Suspension subsequent to conviction. Unless the person obtains an
interlock-restricted license or the court orders the person to exercise the privilege to
operate a motor vehicle only under an interlock-restricted license or while participating in
a court-ordered drug-testing program, thirty (30) days after receipt of the court abstract
documenting a person's conviction under Section 63-11-30, the Department of Public
Safety shall suspend the driver's license and privileges of the person to operate a motor
vehicle as follows:
(a) When sentenced under Section 63-11-30(2):
(i) For a first offense: one hundred twenty (120) days;
(ii) For a second offense: one (1) year;
(iii) For a third offense: for the full period of the person's sentence; upon release from
incarceration, the person will be eligible for only an interlock-restricted license for three
(3) years;
(iv) For a fourth or subsequent offense: for the full period of the person's sentence; upon
release from incarceration, the person will be eligible for only an interlock-restricted
license for ten (10) years and will further be subject to court-ordered drug testing if the
original offense involved operating a motor vehicle under the influence of a drug other
than alcohol.
(b) When sentenced under Section 63-11-30(3) (Zero Tolerance for Minors):
(i) For a first offense: one hundred twenty (120) days;
(ii) For a second offense: one (1) year;
(iii) For a third offense occurring within five (5) years, suspend or deny the driving
privilege for two (2) years or until the person reaches the age of twenty-one (21),
whichever is longer.
(6) Suspensions. (a) Notices of suspension given under this section shall be in writing
and conform to Section 63-1-52.
(b) Suspensions under this and any other chapter shall run consecutively and not
concurrently.
(7) License reinstatement. A person is eligible for an unrestricted license when the
person has completed an alcohol safety education program as provided in Section
63-11-32, has satisfied all other conditions of law and of the person's sentence or
nonadjudication, and is not otherwise barred from obtaining an unrestricted license.
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CHAPTER 12
RULES OF THE ROAD
1200 REGULATIONS ON RULES OF THE ROAD
1201 DEFINITIONS
1202 OBEDIENCE TO AND EFFECT OF TRAFFIC LAWS
To whom applicable
Local powers
1203 TRAFFIC SIGNS, SIGNALS AND MARKINGS
Emergency vehicles
Sign, barricade and fence violations
Signs, barricades and fences defined
Sanctions for sign, barricade or fence violations
1204 ACCIDENTS AND REPORTS
Duty if accident results in injury or death
Duty if only damage to the vehicle
Driver to provide information and assistance
Duty if damage is to an unattended vehicle
When an accident report is required
Admissibility of accident reports
Fraudulently obtaining an accident report
1205 RESTRICTIONS ON SPEED; USE OF RADAR
Speed limit restrictions
Penalties for speeding
Required speed reductions
Complaint to specify speed
Reduced speed limits
Highway work zones
Emergency vehicle exception
Radar speed detection equipment
Sanctions for unlawful use of radar
1206 PROPER LANE USE; OVERTAKING AND PASSING; FOLLOWING
Use of lanes
Stopped school buses
Tailgating
“Platoon” defined
1207 STARTING AND TURNING; SIGNALING
1208 RIGHT-OF-WAY
1209 STOPPING, STANDING AND PARKING
Proper parking
Parking on restricted access private property
1210 REQUIRED STOPS
1211 PEDESTRIANS’ RIGHTS AND DUTIES
1212 RECKLESS AND CARELESS DRIVING
Reckless driving
Careless driving
1200 REGULATIONS ON RULES OF THE ROAD
The “Uniform Highway Traffic Regulation Law–Rules of the Road” is subdivided into 13
separate Articles under Chapter 3 of Title 63. Article 1 (§§ 63-3-1 through 63-3-11)
provides that these rules govern the operation of vehicles on the highways within the
state, except as otherwise provided by law, but does not curtail or abridge the right to sue
for civil damages. Unless another punishment is provided for by law, violations of rules
of the road regulations are misdemeanors punishable under Section 63-9-11.
1201 DEFINITIONS
Article 3 (§§ 63-3-101 through 63-3-123) defines various words and phrases found within
the “Uniform Highway Traffic Regulation Law–Rules of the Road”, including: vehicles,
equipment and the like, governmental agencies, owners, police officers and other persons,
and highways, districts, signals and the like.
§ 63-3-103 Types of vehicles
(a) “Vehicle” means every device in, upon or by which any person or property is or may
be transported or drawn upon a highway, except devices used exclusively upon stationary
rails or tracks.
(b) “Motor vehicle” means every vehicle which is self-propelled and every vehicle which
is propelled by electric power obtained from overhead trolley wires, but not operated
upon rails. The term “motor vehicle” shall not include electric personal assistive mobility
devices or electric bicycles.
(c) “Motorcycle” means every motor vehicle having a saddle for the use of the rider and
designed to travel on not more than three (3) wheels in contact with the ground but
excluding a tractor. The term “motorcycle” includes motor scooters as defined in
subsection (j) of this section. The term “motorcycle” shall not include electric bicycles.
(d) “Authorized emergency vehicle” means every vehicle of the fire department (fire
patrol), every police vehicle, every 911 Emergency Communications District vehicle,
every such ambulance and special use EMS vehicle as defined in Section 41–59–3, every
Mississippi Emergency Management Agency vehicle as is designated or authorized by the
Executive Director of MEMA and every emergency vehicle of municipal departments or
public service corporations as is designated or authorized by the commission or the chief
of police of an incorporated city.
(e) “School bus” means every motor vehicle operated for the transportation of children to
or from any school, provided same is plainly marked “School Bus” on the front and rear
thereof and meets the requirements of the State Board of Education as authorized under
Section 37–41–1.
(f) “Recreational vehicle” means a vehicular type unit primarily designed as temporary
living quarters for recreational, camping or travel use, which either has its own motive
power or is mounted on or drawn by another vehicle and includes travel trailers,
fifth-wheel trailers, camping trailers, truck campers and motor homes.
(g) “Motor home” means a motor vehicle that is designed and constructed primarily to
provide temporary living quarters for recreational, camping or travel use.
(h) “Electric assistive mobility device” means a self-balancing two-tandem wheeled
device, designed to transport only one (1) person, with an electric propulsion system that
limits the maximum speed of the device to fifteen (15) miles per hour.
(i) “Autocycle” means a three-wheel motorcycle with a steering wheel, nonstraddle
seating, rollover protection and seat belts.
(j) “Motor scooter” means a two-wheeled vehicle that has a seat for the operator, one (1)
wheel that is ten (10) inches or more in diameter, a step-through chassis, a motor with a
rating of two and seven-tenths (2.7) brake horsepower or less if the motor is an internal
combustion engine, an engine of 50cc or less and otherwise meets all safety requirements
of motorcycles. The term “motor scooter” shall not include electric bicycles.
(k) “Platoon” means a group of individual motor vehicles traveling in a unified manner at
electronically coordinated speeds at following distances that are closer than would be
reasonable and prudent without such coordination.
(l) “Electric bicycle” means a bicycle or tricycle equipped with fully operable pedals, a
saddle or seat for the rider, and an electric motor of less than seven hundred fifty (750)
watts that meets the requirements of one of the following three (3) classes:
(i) “Class 1 electric bicycle” means an electric bicycle equipped with a motor that
provides assistance only when the rider is pedaling, and that ceases to provide assistance
when the bicycle reaches the speed of twenty (20) miles per hour.
(ii) “Class 2 electric bicycle” means an electric bicycle equipped with a motor that may be
used exclusively to propel the bicycle, and that is not capable of providing assistance
when the bicycle reaches the speed of twenty (20) miles per hour.
(iii) “Class 3 electric bicycle” means an electric bicycle equipped with a motor that
provides assistance only when the rider is pedaling, and that ceases to provide assistance
when the bicycle reaches the speed of twenty-eight (28) miles per hour.
Other terms defined under Article 3 include:
Police officer: Miss. Code Ann. § 63-3-119 provides that “police officer” means “every
officer authorized to direct or regulate traffic or to make arrests for violations of traffic
regulations.”
Driver: Miss. Code Ann. § 63-3-121 provides that “driver” means “every person who
drives or is in actual physical control of a vehicle.”
Street or highway: Miss. Code Ann. § 63-3-125(a) provides that “street or highway”
means “the entire width between property lines of every way or place of whatever nature
when any part thereof is open to the use of the public, as a matter of right, for purposes of
vehicular traffic.”
Private road or driveway: Miss. Code Ann. § 63-3-125(e) provides that “private road or
driveway” means “every way or place in private ownership and used for vehicular travel
by the owner and those having express or implied permission from the owner but not by
other persons.”
Right-of way: Miss. Code Ann. § 63-3-135 provides that “right-of way” means “the
privilege of the immediate use of the highway.”
Stop: Miss. Code Ann. § 63-3-137(a) provides that “stop” means “the complete cessation
from movement.”
Mississippi Attorney General’s opinions:
4-wheelers must have tag to operate on the public roads.
“4-wheelers are motor vehicles and therefore must have a tag to operate on the public
roads. They must also be properly equipped to operate on the public roads. The driver of a
4-wheeler on the public roads may be given a citation for no tag or improper equipment.”
Op. Atty. Gen. Reno, July 29, 2005.
1202 OBEDIENCE TO AND EFFECT OF TRAFFIC LAWS
Article 5 (§§ 63-3-201 through 63-3-213) provides that, unless otherwise excepted, the
“Uniform Highway Traffic Regulation Law–Rules of the Road” applies to drivers of
vehicles on highways in the state and, as applicable, bicyclists and animal riders.
§ 63-3-205 To whom applicable:
The provisions of this chapter applicable to the drivers of vehicles upon the highways
shall apply to the drivers of all vehicles owned or operated by the United States, this state
or any county, city, town, district, or any other political subdivision of the state, subject to
such specific exceptions as are set forth in this chapter with respect to authorized
emergency vehicles.
The provisions of this chapter shall not apply to persons, teams, motor vehicles and other
equipment while actually engaged in work upon the surface of a highway but shall apply
to such persons and vehicles when traveling to or from such work.
No driver of any authorized emergency vehicle shall assume any special privilege under
this chapter except when such vehicle is operated in response to an emergency call or in
the immediate pursuit of an actual or suspected violator of the law.
§ 63-3-211 Local powers:
(a) The provisions of this chapter shall not be deemed to prevent local authorities with
respect to streets and highways under their jurisdiction and within the reasonable exercise
of the police power from-
1. Regulating the standing or parking of vehicles;
2. Regulating traffic by means of police officers or traffic control signals;
3. Regulating or prohibiting processions or assemblages on the highways;
4. Designating particular highways as one-way highways and requiring that all vehicles
thereon be moved in one specific direction;
5. Regulating the speed of vehicles in public parks;
6. Designating any highway as a through highway and requiring that all vehicles stop
before entering or crossing the same or designating any intersection as a stop intersection
and requiring all vehicles to stop at one or more entrances to such intersections;
7. Restricting the use of highways as authorized in Chapter 5 of this title.
(b) No ordinance or regulation enacted under subdivision 4, 5, 6, or 7 of this section shall
be effective until signs giving notice of such local traffic regulations are posted upon or at
the entrances to the highway or part thereof affected as may be most appropriate.
1203 TRAFFIC SIGNS, SIGNALS AND MARKINGS
Article 7 (§§ 63-3-301 through 63-3-325) requires the commissioner of public safety to
adopt, in conformity to the American Association of State Highway Officials’ standards,
a manual and specifications for a uniform system of traffic-control devices. The
Commissioner, with approval from the state highway commission (or local authorities
with the permission of the state highway commission), must also place and maintain such
devices on the state and county highways. Article 7 also requires local authorities,
subject to state highway commission standards, to place and maintain like traffic-control
devices on the local highways.
§ 63-3-315 Emergency vehicles:
The driver of any authorized emergency vehicle when responding to an emergency call
upon approaching a red or stop signal or any stop sign shall slow down as necessary for
safety but may proceed cautiously past such red or stop sign or signal. At other times
drivers of authorized emergency vehicles shall stop in obedience to a stop sign or signal.
§ 63-3-321 Sign, barricade and fence violations:
Any person who wilfully destroys, knocks down, removes, defaces, or alters any letters or
figures on a detour or warning sign set upon a highway or road of this state, or who
wilfully knocks down, removes, rearranges, destroys, defaces, or alters any letter or
figures on a barricade or fence erected on any highway or road of this state, or who drives
around or through any barricade or fence on any officially closed highway or road of this
state, or who drives around such detour sign or barricade or fence, or who wilfully
ignores or disregards a warning sign before such road has been officially opened to the
public traffic by the Mississippi State Highway Department, or in appropriate cases by the
county or municipal officer responsible for constructing or maintaining such roads, shall
be guilty of a misdemeanor.
§ 63-3-323 Signs, barricades and fences defined:
The following words, terms and phrases, when used in section 63-3-321 shall have the
meaning ascribed to them herein:
(a) “Detour sign” means any sign placed across or on a public road of the state, by the
state, the county or municipal authorities or by their contractors, indicating that such road
is closed or partially closed, which sign also indicates the direction of an alternate route to
be followed to give access to certain points.
(b) “Warning sign” means a sign indicating construction work in area.
(c) “Barricade” means a barrier for obstructing the passage of motor vehicle traffic.
(d) “Fence” means a barrier to prevent the intrusion of motor vehicle traffic.
(e) “Officially closed” means a highway or road that has been officially closed by a
governmental unit, the Mississippi State Highway Department, a city or a county.
(f) “Officially opened” shall mean any highway that does not have signs or barriers
stating that it is closed.
§ 63-3-325 Sanctions for sign, barricade or fence violations:
Every person convicted of a violation of section 63-3-321 shall be punished by a fine of
not less than five dollars ($5.00) nor more than one hundred dollars ($100.00), or by
imprisonment for not more than thirty (30) days, or by both such fine and imprisonment.
The conviction of a violation of section 6303 321 shall not be competent evidence in any
civil action.
1204 ACCIDENTS AND REPORTS
Article 9 (§§ 63-3-401 through 63-3-423) provides rules of the road as to accidents and
reports.
§ 63-3-401 Duty if accident results in injury or death:
(1) The driver of any vehicle involved in an accident resulting in injury to or death of any
person shall immediately stop such vehicle at the scene of such accident or as close
thereto as possible but shall then forthwith return to and in every event shall remain at the
scene of the accident until he has fulfilled the requirements of Section 63-3-405.
(2) Every stop under the provisions of subsection (1) of this section shall be made without
obstructing traffic or endangering the life of any person more than is necessary.
(3) Except as provided in subsection (4) of this section, if any driver of a vehicle involved
in an accident that results in injury to any person willfully fails to stop or to comply with
the requirements of subsection (1) of this section, then such person, upon conviction,
shall be punished by imprisonment for not less than thirty (30) days nor more than one (1)
year, or by fine of not less than One Hundred Dollars ($100.00) nor more than Five
Thousand Dollars ($5,000.00), or by both such fine and imprisonment.
§ 63-3-403 Duty if only damage to the vehicle:
The driver of any vehicle involved in an accident resulting only in damage to a vehicle
which is driven or attended by any person shall immediately stop such vehicle at the
scene of such accident or as close thereto as possible but shall forthwith return to and in
every event shall remain at the scene of such accident until he has fulfilled the
requirements of section 63-3-405. Every such stop shall be made without obstructing
traffic more than is necessary.
Any person failing to stop or comply with said requirements under such circumstances
shall be guilty of a misdemeanor.
§ 63-3-405 Driver to provide information and assistance:
The driver of any vehicle involved in an accident resulting in injury to or death of any
person or damage to any vehicle which is driven or attended by any person shall give his
name, address and the registration number of the vehicle he is driving and shall, upon
request and if available, exhibit his operator's or chauffeur's license to the person struck
or the driver or occupant of or person attending any vehicle collided with. Said driver
shall render to any person injured in such accident reasonable assistance, including the
carrying, or the making of arrangements for the carrying, of such person to a physician,
surgeon or hospital for medical or surgical treatment if it is apparent that such treatment
is necessary or if such carrying is requested by the injured person. No such driver who, in
good faith and in the exercise of reasonable care, renders emergency care to any injured
person at the scene of an accident or in transporting said injured person to a point where
medical assistance can be reasonably expected, shall be liable for any civil damages to
said injured person as a result of any acts committed in good faith and in the exercise of
reasonable care or omission in good faith and in the exercise of reasonable care by such
driver in rendering the emergency care to said injured person.
§ 63-3-407 Duty if damage is to an unattended vehicle:
The driver of any vehicle which collides with any vehicle which is unattended shall
immediately stop and shall then and there either locate and notify the operator or owner
of such vehicle of the name and address of the driver and owner of the vehicle striking the
unattended vehicle or shall leave in a conspicuous place in the vehicle struck a written
notice giving the name and address of the driver and of the owner of the vehicle doing the
striking and a statement of the circumstances thereof. However, the provisions herein
shall not apply where no material damage is done and where the owner of the unattended
vehicle was guilty of negligence in leaving said vehicle parked as same was when so
struck.
§ 63-3-411 When an accident report is required:
(1) The driver of a vehicle involved in an accident resulting in injury to or death of any
person or total property damage to an apparent extent of Five Hundred Dollars ($500.00)
or more shall immediately, by the quickest means of communication, give notice of the
collision to the local police department if the collision occurs within an incorporated
municipality, or if the collision occurs outside of an incorporated municipality to the
nearest sheriff's office or highway patrol station.
§ 63-3-417 Admissibility of accident reports:
(1) All required accident reports and supplemental reports shall be without prejudice to
the individual so reporting and, except as otherwise provided in this section, shall be for
the confidential use of the department; however, the department may, upon written
request of any person involved in an accident, the spouse or next of kin of any such
person, or any person against whom a claim is made as a result of the accident or upon
written request of the representative of his estate, disclose to such requester or his legal
counsel or a representative of his insurer any information contained in such report except
the parties' version of the accident as set out in the written report filed by such parties, or
may disclose the identity of a person involved in an accident when such identity is not
otherwise known or when such person denies his presence at such accident. The
admissibility of an accident report into evidence in any court shall be governed by the
Mississippi Rules of Evidence. However, the department shall furnish, upon demand of
any person who has, or claims to have, made such a report or, upon demand of any court,
a certificate showing that a specified accident report has or has not been made to the
department solely to prove a compliance or a failure to comply with the requirement that
such a report be made to the department.
§ 63-3-417 Fraudulently obtaining an accident report:
(4) Any person to whom information contained in an accident report is not authorized to
be disclosed under this section who fraudulently obtains or fraudulently attempts to
obtain a copy of such report or information contained in such report shall be guilty of a
misdemeanor and such person, upon conviction, shall be punished by a fine of not more
than Two Thousand Five Hundred Dollars ($2,500.00), or imprisonment in the county jail
for a term of not more than six (6) months, or by both such fine and imprisonment.
1205 RESTRICTIONS ON SPEED; USE OF RADAR
Article 11 (§§ 63-3-501 through 63-3-521) provides rules of the road as to restrictions on
speed and use of radar.
§ 63-3-501 Speed limit restrictions:
Except as otherwise provided in this section, no person shall operate a vehicle on the
highways of the state at a speed greater than sixty-five (65) miles per hour.
The Mississippi Transportation Commission may, in its discretion, by order duly entered
on its minutes, increase the speed restrictions on any portion of the Interstate Highway
System provided such speed restrictions are not increased to more than seventy (70) miles
per hour. The commission may likewise increase the speed limit to seventy (70) miles
per hour on controlled access highways with four (4) or more lanes.
§ 63-3-503 Penalties for speeding:
The maximum fine and sentence to be imposed for a violation of excessive speed above
the maximum limits set by the state highway commission pursuant to the authority
granted by this section shall be one-half ( 1/2 ) the fine and sentence imposed by section
63-9-11 if the excessive speed does not exceed the maximum limits imposed by section
63-3-501.
§ 63-3-505 Required speed reductions:
The driver or operator of any motor vehicle must decrease speed when approaching and
crossing an intersection, when approaching and going around a curve, when approaching
a hill crest, when traveling upon any narrow or winding roadway, or when special hazard
exists with respect to pedestrians or other traffic. All trucks, or truck-trailer combinations
and passenger buses shall be required to reduce speed to forty-five miles per hour during
inclement weather when visibility is bad.
§ 63-3-507 Complaint to specify speed:
In every charge of violation of sections 63-3-501 to 63-3-505, and subsection (2) of
section 63-3-509 the complaint as well as the summons or notice to appear, shall specify
the speed at which the defendant is alleged to have driven as well as the speed applicable
within the district or at the location.
§ 63-3-511 Reduced speed limits:
Whenever local authorities, including boards of supervisors, within their respective
jurisdictions, determine upon the basis of an engineering and traffic investigation that the
speed permitted under this article on any street, or any county road or any portion thereof,
or at any intersection is greater than is reasonable or safe under conditions found to exist
upon such street, or any county road or any portion thereof, or at such intersection, such
local authorities shall determine and declare, by ordinance, a reasonable and safe speed
limit, which shall be effective when appropriate signs giving notice thereof are erected on
such street, or any county road or any portion thereof, or at such intersection, or upon the
approaches thereto. However, no speed limit shall be fixed by any such local authorities
at less than fifteen (15) miles per hour.
§ 63-3-516 Highway work zones:
(1) It is unlawful for any person to operate a motor vehicle within a highway work zone at
a speed in excess of the maximum speed limit specifically established for the zone
whenever workers are present and whenever the zone is indicated by appropriately placed
signs displaying the reduced maximum speed limit. Any person violating the provisions
of this section shall be punished, upon conviction, for a first offense by a fine of not more
than Two Hundred Fifty Dollars ($250.00); and for second, third and subsequent offenses
by a fine of double the maximum fine imposed for second, third or subsequent offenses
under Section 63-9-11.
(2) For the purposes of this section the term “highway work zone” means a construction
or maintenance area that is located on or along any public highway, road or street within
this state that is marked:
(a) By appropriate warning signs or other traffic control devices indicating that work is in
progress; and
(b) By signs of a design approved by the Department of Transportation indicating that any
person who operates a motor vehicle within a highway work zone at a speed in excess of
the reduced maximum speed limit may be punished by a fine of double the maximum
amount otherwise authorized by law.
(3) Nothing in this section shall preclude the prosecution or conviction for careless or
reckless driving of any motor vehicle operator whose operation of a motor vehicle in a
highway work zone, apart from speed, demonstrates the operation of the same in a
careless or imprudent manner in violation of Section 63–3–1213 or in a reckless manner
in violation of Section 63–3–1201.
(4)(a) Every person who operates any motor vehicle in violation of the provisions of this
section and who causes property damage to road construction equipment or a motor
vehicle in an amount of Five Hundred Dollars ($500.00) or greater within a highway
work zone shall, upon conviction, be guilty of a separate misdemeanor and shall be
punished by a fine of not less than Two Hundred Fifty Dollars ($250.00) nor more than
One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for a term of
not less than thirty (30) days nor more than one (1) year, or by both such fine and
imprisonment, in the discretion of the court, and the court shall, as a condition of any
sentence imposed determine the extent of the property damage caused by the violator and
require the violator to make restitution to the injured party upon such terms and
conditions determined by the court. Nothing herein however shall prevent the injured
party from pursuing any other civil remedies against the violators as allowed by law.
§ 63-3-517 Emergency vehicle exception:
The speed limitations set forth in this article shall not apply to authorized emergency
vehicles when responding to emergency calls and the drivers thereof sound audible signal
by bell, siren, or exhaust whistle. This section shall not relieve the driver of an
authorized emergency vehicle from the duty to drive with due regard for the safety of all
persons using the street, nor shall it protect the driver of any such vehicle from the
consequence of a reckless disregard of the safety of others.
§ 63-3-519 Radar speed detection equipment:
It shall be unlawful for any person or peace officer or law enforcement agency, except the
Mississippi Highway Safety Patrol, to purchase or use or allow to be used any type of
radar speed detection equipment upon any public street, road or highway of this state.
However, such equipment may be used:
1. By municipal law enforcement officers within a municipality having a population of
two thousand (2,000) or more upon the public streets of the municipality;
2. By any college or university campus police force within the confines of any campus
wherein more than two thousand (2,000) students are enrolled;
3. By municipal law enforcement officers in any municipality having a population in
excess of fifteen thousand (15,000) according to the latest federal census on federally
designated highways lying within the corporate limits.
The Mississippi Highway Safety Patrol will not set up radar on highways within
municipalities with a population in excess of fifteen thousand (15,000) according to the
latest federal census.
§ 63-3-521 Sanctions for unlawful use of radar:
Any person who violates section 63-3-519 shall be guilty of a misdemeanor and, upon
conviction, shall be punished by a fine of not more than five hundred dollars ($500.00),
or by imprisonment for not more than six (6) months, or by both such fine and
imprisonment.
See Freeman v. State, 121 So. 3d 888, 898 (Miss. 2013) (“[B]ecause the Radar Unit
Certification was not properly authenticated, it was inadmissible hearsay and should have
been suppressed.”); Stidham v. State, 750 So. 2d 1238, 1241 (Miss. 2000) (“[A] radar
device reading should be deemed admissible only upon a showing of the radar device's
accuracy. See MRE 901(b)(9). . . . It is also generally required that proof be offered that
the operator of the radar device is qualified to operate the device. By prevailing authority,
the officer need not be an expert in the science of radar or electronics.”).
1206 PROPER LANE USE; OVERTAKING AND PASSING; FOLLOWING
Article 13 (§§ 63-3-601 through 63-3-621) provides rules of the road as to proper lane
use, overtaking and passing, and following.
§ 63–3–603 Use of lanes:
(1) Whenever any roadway has been divided into three (3) or more clearly marked lanes
for traffic, except through or bypassing a municipality, the following rules in addition to
all others consistent herewith shall apply:
(a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall
not be moved from such lane until the driver has first ascertained that such movement can
be made with safety.
(b) A vehicle shall not be driven in the center lane upon a roadway which is divided into
three (3) lanes except when:
(i) Overtaking and passing another vehicle where the roadway is clearly visible and such
center lane is clear of traffic within a safe distance;
(ii) Such vehicle is in preparation for a left turn; or
(iii) Such center lane is at the time allocated exclusively to traffic moving in the direction
such vehicle is proceeding and is signposted to give notice of such allocation.
(c) Official signs may be erected directing slow-moving traffic to use a designated lane or
allocating specified lanes to traffic moving in the same direction, and drivers of vehicles
shall obey the directions of every such sign.
(d) Upon all roadways any vehicle proceeding at less than the normal speed of traffic at
the time and place and under the conditions then existing shall be driven in the right-hand
lane then available for traffic, or as close as practicable to the right-hand curb or edge of
the roadway, except when overtaking and passing another vehicle proceeding in the same
direction or when preparing for a left turn at an intersection or into a private road or
driveway.
(e) Persons riding bicycles upon a roadway shall not ride more than two (2) abreast except
on paths or parts of roadways set aside for the exclusive use of bicycles. Persons riding
two (2) abreast shall not impede the normal and reasonable movement of traffic and, on a
laned roadway, shall ride within a single lane.
(2)(a) A vehicle shall not be driven in the outermost left lane of any roadway with two (2)
or more lanes allowing for movement of traffic in the same direction except when:
(i) Overtaking and passing another vehicle proceeding in the same direction under the
rules governing such movement;
(ii) The right lane(s) of a roadway is closed to traffic while under construction or repair;
(iii) The right lane(s) of the roadway is in disrepair or in an otherwise impassable or
unsafe condition; or
(iv) A vehicle is preparing to exit the roadway on the left.
(b) A vehicle shall not be driven continuously in the outermost left lane of a multi-lane
roadway whenever it impedes the flow of other traffic.
(c) A violation of this subsection (2) is punishable by a fine of not less than Five Dollars
($5.00) nor more than Fifty Dollars ($50.00).
§ 63-3-615 Stopped school buses:
(1)(a) The driver of a vehicle upon a street or highway upon meeting or overtaking any
school bus that has stopped on the street or highway for the purpose of receiving or
discharging any school children shall come to a complete stop at least ten (10) feet from
the school bus before reaching the school bus when there is in operation on the school bus
the flashing red lights provided in Section 63-7-23, or when a retractable, hand-operated
stop sign is extended; the driver shall not proceed until the children have crossed the
street or highway and the school bus has resumed motion or the flashing red lights are no
longer actuated and the hand-operated stop sign is retracted.
(b) The driver of a vehicle upon a divided highway that has four (4) lanes or more and
permits at least two (2) lanes of traffic to travel in opposite directions need not stop upon
meeting or passing a school bus that is stopped in the opposing roadway, or if the school
bus is stopped in a loading zone that is a part of or adjacent to the highway and where
pedestrians are not permitted to cross the roadway.
(2)(a) Except as provided in paragraph (b), any person violating the provisions of
subsection (1) of this section shall be guilty of a misdemeanor and upon a first conviction
thereof shall be fined not less than Three Hundred Fifty Dollars ($350.00) nor more than
Seven Hundred Fifty Dollars ($750.00), or imprisoned for not more than one (1) year, or
both. For a second or subsequent offense, the offenses being committed within a period of
five (5) years, the person shall be guilty of a misdemeanor and, upon conviction, shall be
fined not less than Seven Hundred Fifty Dollars ($750.00) nor more than One Thousand
Five Hundred Dollars ($1,500.00), or imprisoned for not more than one (1) year, or both.
In addition, the Commissioner of Public Safety or his duly authorized designee, after
conviction for a second or subsequent offense and upon receipt of the court abstract, shall
suspend the driver's license and driving privileges of the person for a period of ninety (90)
days.
(b) A conviction under this section for a violation resulting in any injury to a child who is
in the process of boarding or exiting a school bus shall be a violation of Section 97-3-7,
and a violator shall be punished under subsection (2) of that section.
(3) This section shall be applicable only in the event the school bus shall bear upon the
front and rear thereon a plainly visible sign containing the words “school bus” in letters
not less than four (4) inches in height.
(4) If any person witnesses the driver of any vehicle violating the provisions of this
section and the identity of the driver of the vehicle is not otherwise apparent, it shall be a
rebuttable inference that the person in whose name the vehicle is registered committed the
violation. If charges are filed against multiple owners of a motor vehicle, only one (1) of
the owners may be convicted and court costs may be assessed against only one (1) of the
owners. If the vehicle that is involved in the violation is registered in the name of a rental
or leasing company and the vehicle is rented or leased to another person at the time of the
violation, the rental or leasing company may rebut the inference of guilt by providing the
law enforcement officer or prosecuting authority with a copy of the rental or lease
agreement in effect at the time of the violation.
§ 63-3-619 Tailgating:
(1) The driver of a motor vehicle shall not follow another vehicle more closely than is
reasonable and prudent, having due regard for the speed of such vehicles and the traffic
upon and the condition of the highway.
(2) The driver of any motor truck or motor truck drawing another vehicle when traveling
upon a roadway outside of a business or residence district shall not follow within three
hundred (300) feet of another motor truck or motor truck drawing another vehicle. The
provisions of this subsection shall not be construed to prevent overtaking and passing nor
shall the same apply upon any lane specially designated for use by motor trucks.
(3)(a) Subject to the provisions of paragraph (b) of this subsection, subsections (1) and
(2) of this section shall not apply to the operator of a nonlead vehicle in a platoon, as
defined in Section 63–3–103(k), as long as the platoon is operating on a limited access
divided highway with more than one (1) lane in each direction and the platoon consists of
not more than two (2) motor vehicles.
(b) A platoon may be operated in this state only after an operator files a plan for approval
of general platoon operations with the Department of Transportation. If that department
approves the submission, it shall forward the plan to the Department of Public Safety for
approval. The plan shall be reviewed and either approved or disapproved by the
Department of Transportation and the Department of Public Safety within thirty (30) days
after it is filed. If approved by both departments, the operator shall be allowed to operate
the platoon five (5) working days after plan approval. The Motor Carrier Division of the
Department of Public Safety shall develop the acceptable standards required for each
portion of the plan.
§ 63–3–103 “Platoon” defined:
(k) “Platoon” means a group of individual motor vehicles traveling in a unified manner at
electronically coordinated speeds at following distances that are closer than would be
reasonable and prudent without such coordination.
See Robinette v. State, 189 So. 3d 675, 681 (Miss. Ct. App. 2015) (“The evidence was
sufficient to sustain Robinette's conviction for tailgating.”); Nolan v. State, 182 So. 3d
484, 494 (Miss. Ct. App. 2016) (“[Section 63–3–619], coupled with the rules of the road,
is sufficiently definite such that an ordinary person can understand the prohibited conduct
and that law enforcement can avoid arbitrary enforcement. We find the statute sufficiently
specific to pass constitutional scrutiny.”).
1207 STARTING AND TURNING; SIGNALING
Article 15 (§§ 63-3-701 through 63-3-711) provides rules of the road as to starting,
turning, and signaling.
§ 63-3-707 Signaling turns and stops
No person shall turn a vehicle from a direct course upon a highway unless and until such
movement can be made with reasonable safety and then only after giving a clearly audible
signal by sounding the horn if any pedestrian may be affected by such movement or after
giving an appropriate signal in the manner provided in this article in the event any other
vehicle may be affected by such movement. A signal of intention to turn right or left shall
be given continuously for a reasonable distance before turning. No person shall stop or
suddenly decrease the speed of a vehicle without first giving an appropriate signal in the
manner provided in this article to the driver of any vehicle immediately to the rear when
there is opportunity to give such signal.
See also Johnson v. State, 228 So. 3d 933, 936 (Miss. Ct. App. 2017) (“Here, Officer
Garvin testified that he personally observed Johnson make a right turn onto a state
highway without signaling while traffic was present, a traffic violation.”); Woods v.
State, 175 So. 3d 579, 582 (Miss. Ct. App. 2015) (“Section 63–3–707 clearly requires a
signal when other vehicles may be affected by a turn—‘even when no accident is likely to
occur as the result of the driver's failure to give a proper signal.’”); Melton v. State, 118
So. 3d 605, 609 (Miss. Ct. App. 2012) (“Section 63–3–707 requires a driver turning right
or left to give a continuous signal for a reasonable distance before turning in the event any
other vehicle may be affected by such movement.”).
Mississippi Attorney General’s opinions:
Use of turn signals.
“A driver turning left at a T intersection onto a 1-way street must signal his intention to
turn for a reasonable distance.” Op. Atty. Gen. Phillips, April 8, 2005.
1208 ARTICLE 17. RIGHT-OF-WAY
Article 17 (§§ 63-3-801 through 63-3-809) provides rules of the road as to yielding right-
of-way, including: at intersections, left turns, at entrances to through highways, at stop
signs, coming from a private road or driveway, and for emergency vehicles.
1209 STOPPING, STANDING AND PARKING
Article 19 (§§ 63-3-901 through 63-3-913) provides rules of the road as to stopping,
standing, and parking.
§ 63-3-909 Proper parking:
No person driving or in charge of a motor vehicle shall permit it to stand unattended
without first stopping the engine, locking the ignition and removing the key, and, when
standing upon any perceptible grade, without effectively setting the brake thereon and
turning the front wheels to the curb or side of the highway.
§ 63-3-913 Parking on restricted access private property:
(1) The designation of areas on private property which are clearly marked to restrict
access thereto to emergency vehicles shall be considered permission by the owner of such
property that law enforcement officers may enter such private property to enforce such
restricted access; and all municipal, county and state law enforcement officers are
authorized to enforce such restriction.
(2) It is unlawful to park a motor vehicle, other than an emergency vehicle responding to
an emergency, in an area which has been marked as provided in subsection (1) of this
section; and any person who unlawfully parks a motor vehicle in such an area or who
blocks access thereto is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than One Hundred Dollars ($100.00) for each violation. For the third and
any subsequent offense under this section, the offender's driver's license shall be
suspended for ninety (90) days in accordance with Section 63-1-53, Mississippi Code of
1972, in addition to any fine imposed.
(3) For the purpose of this section “emergency vehicle” means fire department vehicles,
law enforcement vehicles, ambulances and any other vehicle designated as an emergency
vehicle by the governing authority of the county or municipality within which the private
property is located.
See also Langston v. City of Iuka, 792 So. 2d 1013, 1015 (Miss. Ct. App. 2001)
(“[Section 63-3-913] does not require that emergency lanes be designated by a sign.”);
Miss. Code Ann. § 27-19-56 (License plates, placards and parking for disabled
individuals); 23 C.F.R. § 1235 (Uniform System for Parking for Persons with
Disabilities).
1210 REQUIRED STOPS
Article 21 (§§ 63-3-1001 through 63-3-1013) provides rules of the road as to required
stops, including: at stop signs, at yield signs if proceeding would constitute an immediate
hazard, emerging from an alley, driveway, or building prior to entering sidewalk area, at
railroad crossings, if signal device gives warning or crossing gate lowers, at dangerous
railroad crossings with erected stop signs, at all railroad crossings for certain vehicles
(e.g., school buses carrying any school child, motor vehicles carrying passengers for hire,
trucks carrying explosives or flammable liquids).
1211 PEDESTRIANS' RIGHTS AND DUTIES
Article 23 (§§ 63-3-1101 through 63-3-1113) provides rules of the road as to pedestrian
rights and duties.
1212 RECKLESS AND CARELESS DRIVING
Article 25 (§§ 63-3-1201 through 63-3-1213) provides rules of the road as to reckless
driving, careless driving, and miscellaneous rules.
§ 63-3-1201 Reckless driving:
Any person who drives any vehicle in such a manner as to indicate either a wilful or a
wanton disregard for the safety of persons or property is guilty of reckless driving.
Reckless driving shall be considered a greater offense than careless driving.
Every person convicted of reckless driving shall be punished upon a first conviction by a
fine of not less than Five Dollars ($5.00) nor more than One Hundred Dollars ($100.00),
and on a second or subsequent conviction he may be punished by imprisonment for not
more than ten (10) days or by a fine of not exceeding Five Hundred Dollars ($500.00), or
by both.
See also Floyd v. City of Crystal Springs, 749 So. 2d 110, 118 (Miss. 1999) (“Reasonable
cause for an investigatory stop may be based on an officer's personal observation or on an
informant's tip if it bears indicia of reliability.”); Barnes v. State, 162 So. 2d 865, 484
(Miss. 1964) (“The wobbling, swaying and weaving back and forth by defendant while
driving the truck constituted such reckless driving as to justify the constable in stopping
Barnes.”); Ouzts v. State, 947 So. 2d 1005, 1008 (Miss. Ct. App. 2006) (“Reckless
driving means the commission of conscious acts or omissions which the driver knows or
should know create an unreasonable risk of injury or harm. That which is necessary is
that the driver should realize the strong probability of harm likely to ensue.”); Nix v.
State, 763 So. 2d 896, 900 (Miss. Ct. App. 2000) (“Reckless driving occurs when the
driver commits conscious acts which a driver knows or should know would create an
unreasonable risk of injury or damage.”).
§ 63-3-1213 Careless driving:
Any person who drives any vehicle in a careless or imprudent manner, without
due regard for the width, grade, curves, corner, traffic and use of the streets and
highways and all other attendant circumstances is guilty of careless driving.
Careless driving shall be considered a lesser offense than reckless driving. Every
person convicted of careless driving shall be punished by a fine of not less than
Five Dollars ($5.00) nor more than Fifty Dollars ($50.00).
See also United States v. Escalante, 239 F.3d 678, 680 (5
th
Cir. 2001) (“The Mississippi
careless driving statute is constitutional.”); Leuer v. City of Flowood, 744 So. 2d 266, 269
(Miss. 1999) (“Miss. Code Ann. § 63-11-30(1)(a) is not void for vagueness and does
sufficiently provide fair notice of the proscribed conduct.”); Evers v. City of Starkville,
996 So. 2d 170, 171 (Miss. Ct. App. 2008) (“The City presented sufficient facts to show
that Cook had probable cause to stop Evers for careless driving.”); Adams v. City of
Booneville, 910 So. 2d 720, 725 (Miss. Ct. App. 2005) (“[V]iewing the totality of the
circumstances, we find that [the officer] did have an objective, reasonable suspicion [of]
careless driving.”); Henderson v. State, 878 So. 2d 246, 247 (Miss. Ct. App. 2004) (“The
presence of traffic is not controlling. Carelessness is a matter of reasonable
interpretation, based on a wide range of factors.”); Varvaris v. City of Pearl, 723 So. 2d
1215, 1216-17 (Miss. Ct. App. 1998) (“[The defendant] was driving about 20-25 m.p.h.
in a 35 m.p.h. zone and had been weaving between the two north bound lanes of Pearson
Road. . . . [W]e find that the evidence was sufficient to support the verdict of careless
driving.”).
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CHAPTER 13
FINANCIAL RESPONSIBILITY, PASSENGER SAFETY, AND EQUIPMENT
1300 PROOF OF FINANCIAL RESPONSIBILITY
Proof of financial responsibility defined
Vehicles exempted
Insurance card to be maintained in vehicle
Verifying that insurance card is in vehicle
Penalties if no proof of insurance
If owner shows proof of insurance
Limitations on accessing electronic images
Nonresident's proof
Suspension of vehicle registration
Traffic stops
1301 MANDATORY USE OF SAFETY SEAT BELTS
Seat belts required
Passenger motor vehicle defined
Vehicles and persons exempt
Sanctions
No state assessments imposed
Violation not entered on driving record
1302 REGULATIONS ON SIZE, WEIGHT AND LOAD
1303 REGULATIONS ON EQUIPMENT AND IDENTIFICATION
Exempt vehicles
Unauthorized blue or red lights
Tampering with odometers
Servicing odometers
Penalties for tampering with odometers
When a child restraint device is required
When a booster seat system is required
If more than two children require a booster seat
Passenger motor vehicle defined
Enforceable by any law enforcement officer
Penalties for child restraint device or booster seat violations
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1300 PROOF OF FINANCIAL RESPONSIBILITY
§ 63-15-3 Proof of financial responsibility defined:
The following words and phrases, when used in this chapter, shall, for the purposes of
this chapter, have the meanings respectively ascribed to them in this section, except in
those instances where the context clearly indicates a different meaning:
. . .
(j) “Proof of financial responsibility” means proof of ability to respond in damages for
liability, on account of accidents occurring subsequent to the effective date of said proof,
arising out of the ownership, maintenance or use of a motor vehicle, in the amount of
Twenty-five Thousand Dollars ($25,000.00) because of bodily injury to or death of one
(1) person in any one (1) accident, and subject to said limit for one (1) person, in the
amount of Fifty Thousand Dollars ($50,000.00) because of bodily injury to or death of
two (2) or more persons in any one (1) accident, and in the amount of Twenty-five
Thousand Dollars ($25,000.00) because of injury to or destruction of property of others in
any one (1) accident. Liability insurance required under this paragraph (j) may contain
exclusions and limitations on coverage as long as the exclusions and limitations language
or form has been filed with and approved by the Commissioner of Insurance.
§ 63-15-4 Vehicles exempted:
(1) The following vehicles are exempted from the requirements of this section:
(a) Motor vehicles exempted by Section 63–15–5;
(b) Motor vehicles for which a bond or a certificate of deposit of money or securities in at
least the minimum amounts required for proof of financial responsibility is on file with
the department;
(c) Motor vehicles that are self-insured under Section 63–15–53; and
(d) Implements of husbandry.
See also Miss. Code Ann. § 63-15-5 (“This chapter shall not apply with respect to any
motor vehicle owned by the United States, the State of Mississippi or any political
subdivision of this state. Nothing in this chapter shall be construed so as to exclude from
this chapter its applicability to taxicabs, jitneys or other vehicles for hire operating under
franchise or permit of any incorporated city, town or village.”).
§ 63-15-4 Insurance card to be maintained in vehicle:
(2)(a) Every motor vehicle operated in this state shall have a motor vehicle liability
insurance policy that covers the vehicle and is in compliance with the liability limits
required by Section 63-15-3(j). The insured parties shall be responsible for maintaining
the insurance on each motor vehicle.
(b) An insurance company issuing a policy of motor vehicle liability insurance as required
by this section shall furnish to the insured an insurance card for each motor vehicle at the
time the insurance policy becomes effective. The insurance card may be furnished in
either paper or electronic format as chosen by the insured. Acceptable electronic formats
include display of electronic images on a cellular phone or any other type of electronic
device. Beginning on July 1, 2013, insurers shall furnish commercial auto coverage
customers with an insurance card clearly marked with the identifier, “Commercial Auto
Insurance” or “Fleet” or similar language, to reflect that the vehicle is insured under a
commercial auto policy.
§ 63-15-4 Verifying that insurance card is in vehicle:
(3) Upon stopping a motor vehicle at a roadblock where all passing motorists are checked
as a method to enforce traffic laws or upon stopping a motor vehicle for any other
statutory violation, a law enforcement officer, who is authorized to issue traffic citations,
shall verify that the insurance card required by this section is in the motor vehicle or is
displayed by electronic image on a cellular phone or other type of electronic device.
However, no driver shall be stopped or detained solely for the purpose of verifying that
the motor vehicle is covered by liability insurance in the amounts required under Section
63-15-3(j) unless the stop is part of such roadblock. If the law enforcement officer uses
the verification system created in Section 63-16-3 and receives a response from the
system verifying that the owner of the motor vehicle has liability insurance in the
amounts required under Section 63-15-3(j), then the officer shall not issue a citation
under this section notwithstanding any failure to display an insurance card by the owner
or operator.
Mississippi Attorney General’s opinions:
Valid stop required before verification.
“Section 63-15-4(3) prohibits any officer from stopping a vehicle solely to verify the
officer's belief that the vehicle is not insured.” Op. Atty. Gen. Barton, March 8, 2019.
Issuing a citation for no proof of insurance when investigating traffic accidents.
“[A]n officer who is investigating a traffic accident may issue a citation for no proof of
insurance if one of the drivers involved in the accident does not have insurance.” Op.
Atty. Gen. Arnold, February 9, 2001.
§ 63-15-4 Penalties if no proof of insurance:
(4) Failure of the owner or the operator of a motor vehicle to have the insurance card in
the motor vehicle, or to display the insurance card by electronic image on a cellular phone
or other type of electronic device, is a misdemeanor and, upon conviction, is punishable
by a fine of One Hundred Dollars ($100.00) and suspension of driving privilege for a
period of one (1) year or until the owner of the motor vehicle shows proof of liability
insurance that is in compliance with the liability limits required by Section 63-15-3(j) and
has paid the fines and assessments imposed and the driver's license reinstatement fees
imposed by the Department of Public Safety. A judge shall determine whether the
defendant is indigent, and if a determination of indigence is made, shall authorize the
reinstatement of that person's driver's license upon proof of mandatory liability insurance
subject to compliance with a payment plan for any fines, assessments and/or fees.
Fraudulent use of an insurance card shall be punishable in accordance with Section
97-7-10. If such fines are levied in a municipal court, the funds from such fines shall be
deposited in the general fund of the municipality. If such fines are levied in any of the
courts of the county, the funds from such fines shall be deposited in the general fund of
the county. A person convicted of a criminal offense under this subsection (4) shall not be
convicted of a criminal offense under Section 63-16-13(1) arising from the same incident.
Mississippi Attorney General’s opinions:
Authority to suspend fine.
“[A] justice or municipal court judge has the authority to suspend the $100.00 fine
imposed, pursuant to Section 63-15-4.” Op. Atty. Gen. Barrett, August 31, 2018.
Violation only if both the owner and operator fail to have proof of insurance.
“[A] violation of Section 63-15-4 occurs only when both the owner and operator fail to
have proof of insurance. Therefore, if the operator has proof of insurance which covers
his operation of the vehicle but the owner does not, there is no violation. Likewise, if the
owner of the motor vehicle has proof of insurance in the vehicle but the operator does
not, there is still no violation.” Op. Atty. Gen. Lawrence, February 9, 2001.
§ 63-15-4 If owner shows proof of insurance:
(5) If, at the hearing date or the date of payment of the fine the owner shows proof that
such insurance was in effect at the time of citation, the case shall be dismissed as to the
defendant with prejudice and all court costs shall be waived against the defendant.
Mississippi Attorney General’s opinion:
If defendant shows proof of insurance.
“If the owner, at the hearing date or the date of payment of the fine, shows he procured
motor vehicle liability insurance in the proper amounts after receiving the citation the
court should fine the owner $100.00. If the owner shows he had insurance in effect at the
time he received the citation, the citation should be dismissed.” Op. Atty. Gen. Sturgis,
August 11, 2006.
§ 63-15-4 Limitations on accessing electronic images:
(6) No law enforcement officer may access any function, feature or other electronic image
on a person's cellular phone or other type of electronic device when enforcing the
provisions of this section except for the electronic image of an insurance card shown to
the officer.
§ 63-15-41 Nonresident's proof:
(1) The nonresident owner of a motor vehicle, the owner or operator of which is not
licensed in this state, may give proof of financial responsibility by filing with the
department a written certificate or certificates of an insurance company authorized to
transact business in the state in which the motor vehicle or motor vehicles described in
such certificate or certificates are registered, or if such nonresident does not own a motor
vehicle, then in the state in which the insured resides, provided such certificate otherwise
conforms to the provisions of this chapter. The department shall accept the same upon
condition that said insurance company complies with the following provisions with
respect to the policies so certified:
(a) Said insurance company shall execute a power of attorney authorizing the department
to accept service on its behalf of notice or process in any action arising out of a motor
vehicle accident in this state;
(b) Said insurance company shall agree in writing that such policies shall be deemed to
conform with the laws of this state relating to the terms of motor vehicle liability policies
issued herein.
(2) If any insurance company not authorized to transact business in this state, which has
qualified to furnish proof of financial responsibility, defaults in any said undertakings or
agreements, the department shall not thereafter accept as proof any certificate of said
company whether theretofore filed or thereafter tendered as proof, so long as such default
continues.
§ 63-16-13 Suspension of vehicle registration:
(1) If the operator of a motor vehicle being operated on the public roads, streets or
highways of the State of Mississippi or registered in the State of Mississippi has been
found failing to have motor vehicle liability insurance in at least the minimum amounts
required under Section 63-15-3(j), it is a misdemeanor and, upon conviction, is
punishable by a fine of One Hundred Dollars ($100.00) and suspension of driving
privilege for a period of one (1) year or until the owner of the motor vehicle shows proof
of liability insurance that is in compliance with the liability limits required by Section
63-15-3(j) and has paid the fines and assessments imposed and the driver's license
reinstatement fees imposed by the Department of Public Safety. A judge shall determine
whether the defendant is indigent, and if a determination of indigence is made, shall
authorize the reinstatement of that person's driver's license upon proof of mandatory
liability insurance subject to compliance with a payment plan for any fines, assessments
and/or fees. If such fines are levied in a municipal court, the funds from such fines shall
be deposited in the general fund of the municipality. If such fines are levied in any of the
courts of the county, the funds from such fines shall be deposited in the general fund of
the county. A person convicted of a criminal offense under this subsection (1) shall not be
convicted of a criminal offense under Section 63-15-4(4) arising from the same incident.
§ 63-16-5 Traffic stops:
(1) A law enforcement officer or authorized employee of a law enforcement agency may,
during the course of a traffic stop or accident investigation, access the verification system
established under Section 63-16-3 to verify whether a motor vehicle is covered by a valid
motor vehicle liability policy in at least the minimum amounts required under Section
63-15-3(j).
(2) The response received from the system supersedes an insurance card produced by a
motor vehicle operator, and notwithstanding the display of an insurance card by the
operator, the law enforcement officer may issue a complaint and notice to appear to the
operator for a violation of the Mississippi Motor Vehicle Safety-Responsibility Law. A
law enforcement officer may exercise discretion in issuing a citation during the first sixty
(60) days after proof of temporary insurance is issued by an insurance company, if the
verification system shows that the insured's policy is expired and the operator provides
proof of insurance with a new insurance company or a new insurance card.
(3) Except upon reasonable cause to believe that a driver has violated another traffic
regulation or that the driver's motor vehicle is unsafe or not equipped as required by law,
a law enforcement officer may not use the verification system to stop a driver for
operating a motor vehicle in violation of this chapter.
1301 MANDATORY USE OF SAFETY SEAT BELTS
§ 63-2-1 Seat belts required:
(1) When a passenger motor vehicle is operated in forward motion on a public road, street
or highway within this state, every operator and every passenger shall wear a properly
fastened safety seat belt system, required to be installed in the vehicle when manufactured
pursuant to Federal Motor Vehicle Safety Standard 208.
See also Austin v. State, 72 So. 3d 565, 568-69 (Miss. Ct. App. 2011) (“Officer Luckey
testified that he initiated the traffic stop based solely on his observation of Austin’s and
his passengers’ failure to wear their seat belts in violation of section 63–2–1(1); thus, we
find that Officer Luckey's traffic stop was constitutionally reasonable.”).
Mississippi Attorney General’s opinions:
Seat belt violations.
“It is the opinion of this office that only the driver of the vehicle should be issued a
citation. The thrust of the statute is to place the burden on the driver of the vehicle to
ensure that the passengers comply with its terms byuse of seat belts. This is evident by the
fact that only the driver may be assessed the $25.00 fine. Also, subsection (2) provides
that a violation of this chapter, ‘shall not be entered on the driving record of any
individual so convicted.’” Op. Atty. Gen. Sparks, August 15, 2008.
§ 63-2-1 Passenger motor vehicle defined:
(2) “Passenger motor vehicle” for purposes of this chapter means a motor vehicle
designed to carry fifteen (15) or fewer passengers, including the driver, but does not
include motorcycles, mopeds, all-terrain vehicles or trailers.
§ 63-2-1 Vehicles and persons exempt:
(3) This section shall not apply to:
(a) Vehicles which may be registered for “farm” use, including “implements of
husbandry” as defined in Section 63–21–5(d), and “farm tractors” as defined in Section
63–3–105(a);
(b) An operator or passenger possessing a written verification from a licensed physician
that he is unable to wear a safety belt system for medical reasons;
(c) A passenger car operated by a rural letter carrier of the United States Postal Service or
by a utility meter reader while on duty;
(d) Buses; or
(e) A child who is required to be protected by the use of a child passenger restraint device
or system or a belt-positioning booster seat system under the provisions of Sections
63–7–301 through 63–7–311.
§ 63-2-7 Sanctions:
(1) A violation of this chapter shall be a misdemeanor, punishable by a fine of
Twenty-five Dollars ($25.00) upon conviction; however, only the operator of a vehicle
may be fined for a violation of this chapter by the operator and any passengers. The
maximum fine that may be imposed against the operator of a vehicle for a violation of
this chapter by the operator or for a violation of this chapter by one or more passengers
shall be Twenty-five Dollars ($25.00) in the aggregate.
Only vehicle operator to be fined.
“Under Section 63-2-7, only the vehicle operator may be fined for a seatbelt violation of
the operator and/or any passengers. The maximum fine that may be imposed against the
operator for his own violation or for a violation by a passenger is twenty-five dollars
($25.00) “in the aggregate.” Therefore, whether the operator, one passenger or multiple
passengers violate Section 63-2-1, a citation will only be issued to the operator, and the
total amount of the fine will not exceed $25.00. A logical reading of the statute leads us
to conclude that when one or more seatbelt violations occur in a vehicle, the law
enforcement officer should issue one citation to the operator of the vehicle.” Op. Atty.
Gen. Horne, January 25, 2019.
Seat belt violations.
“It is the opinion of this office that only the driver of the vehicle should be issued a
citation. The thrust of the statute is to place the burden on the driver of the vehicle to
ensure that the passengers comply with its terms byuse of seat belts. This is evident by the
fact that only the driver may be assessed the $25.00 fine. Also, subsection (2) provides
that a violation of this chapter, ‘shall not be entered on the driving record of any
individual so convicted.’” Op. Atty. Gen. Sparks, August 15, 2008.
§ 63-2-7 No state assessments imposed:
(2) A violation of this chapter shall not be entered on the driving record of any individual
so convicted, nor shall any state assessment provided for by Section 99-19-73, or any
other state law, be imposed or collected.
§ 63-2-3 Violation not entered on driving record:
Failure to provide and use a seat belt restraint device or system shall not be considered
contributory or comparative negligence, nor shall the violation be entered on the driving
record of any individual.
1302 REGULATIONS ON SIZE, WEIGHT AND LOAD
The “Uniform Highway Traffic Regulation Law— Size, Weight and Load Regulations” is
set forth in Chapter 5 of Title 63. This chapter places limitations on the size, weight and
load of vehicles traveling the highways of the state. Unless another punishment is
provided for by law, violations of size, weight and load regulations are misdemeanors
punishable under Section 63-9-11.
1303 REGULATIONS ON EQUIPMENT AND IDENTIFICATION
The “Uniform Highway Traffic Regulation Law–Equipment and Identification
Regulations” is set forth in Chapter 7 of Title 63. This chapter provides laws regulating
equipment and identification of vehicles traveling the highways of the state, including
general provisions, tampering with or alteration of odometers, and child passenger
restraint devices. Unless another punishment is provided for by law, violations of
equipment and identification regulations are misdemeanors punishable under Section 63-
9-11.
§ 63-7-9 Exempt vehicles:
Except as may otherwise be provided in this chapter, the provisions of this chapter with
respect to equipment on vehicles shall not apply to implements of husbandry, road
machinery, road rollers, or farm tractors.
§ 63-7-20 Unauthorized blue or red lights:
(1) It is unlawful for any person, other than a law enforcement officer on duty, to use or
display blue lights on a motor vehicle as provided for in Section 63-7-19.
(2) It is unlawful for any person to use or display red lights on a motor vehicle except as
provided for in Section 63-7-19. It is not unlawful for the red lights authorized for private
or department-owned vehicles used by firemen of volunteer fire departments, as provided
in Section 63-7-19, to remain mounted on such vehicles when the lights are not in use.
(3) It is unlawful for any vehicle to use alternating flashing headlights except an
emergency vehicle as provided in Section 63-7-19.
(4) A person violating this section is guilty of a misdemeanor and, upon conviction, shall
be punished by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred
Dollars ($500.00).
§ 63-7-203 Tampering with odometers:
(1) It shall be unlawful for any person to advertise for sale, to sell, to use, or to install on
any part of a motor vehicle or on an odometer in a motor vehicle any device which causes
the odometer to register any mileage other than the true mileage driven. For the purposes
of this section the true mileage driven is that mileage driven by the car as registered by
the odometer within the manufacturer's designed tolerance.
(2) It shall be unlawful for any person with the intent to defraud to operate a motor
vehicle on any street or highway knowing that the odometer of such vehicle is
disconnected or nonfunctional.
(3) It shall be unlawful for any person to disconnect, turn back, reset or alter, or cause to
be disconnected, reset or altered, the odometer of any motor vehicle with the intent to
reduce the number of miles indicated thereon.
§ 63-7-207 Servicing odometers:
Nothing in sections 63-7-201 to 63-7-209 shall prevent the service, repair, or replacement
of an odometer, provided the mileage indicated thereon remains the same as before the
service, repair, or replacement. Where the odometer is incapable of registering the same
mileage as before such service, repair, or replacement, the odometer shall be adjusted to
read zero and a notice in writing shall be attached to the left door frame of the vehicle by
the owner or his agent specifying the mileage prior to repair or replacement of the
odometer and the date on which it was repaired or replaced. Any removal or alteration of
such notice so affixed shall be unlawful.
§ 63-7-209 Penalties for tampering with odometers:
Violation of the provisions of Sections 63-7-201 through 63-7-209 shall be deemed a
misdemeanor and upon conviction shall be punishable by a fine of not more than five
hundred dollars ($500.00) or by imprisonment for not more than six (6) months or by
both such fine and imprisonment.
§ 63-7-301 When a child restraint device is required:
(1)(a) Every person transporting a child under the age of four (4) years in a passenger
motor vehicle, and operated on a public roadway, street or highway within this state, shall
provide for the protection of the child by properly using a child passenger restraint device
or system meeting applicable federal motor vehicle safety standards.
§ 63-7-301 When a booster seat system is required:
(1)(b) Every person transporting a child in a passenger motor vehicle operated on a public
roadway, street or highway within this state, shall provide for the protection of the child
by properly using a belt positioning booster seat system meeting applicable federal motor
vehicle safety standards if the child is at least four (4) years of age, but less than seven (7)
years of age and measures less than four (4) feet nine (9) inches in height or weighs less
than sixty-five (65) pounds.
§ 63-7-301 If more than two children require a booster seat:
(1)(c) If more than two (2) children who are required under subsection (1) of this section
to use a booster seat are being transported in a vehicle at one time, and the vehicle only
has two (2) lap and shoulder belts in the rear seat, then only the two (2) children sitting in
the seats with the lap and shoulder belts are required to use a belt positioning booster seat
system and safety belt, and any other children may be secured with a safety seat lap belt
only.
§ 63-7-301 Passenger motor vehicle defined:
(2) “The term “passenger motor vehicle” as used in Sections 63-7-301 through 63-7-311
has the same meaning as defined in Section 63-2-1(2). Sections 63-7-301 through
63-7-311 do not apply to the vehicles described in Section 63-2-1(3).”
§ 63-7-305 Enforceable by any law enforcement officer:
The provisions of Section 63-7-301 may be enforced by any duly sworn law enforcement
officer of this state, or of any county or political subdivision thereof.
§ 63-7-309 Penalties for child restraint device or booster seat violations:
Any person convicted of violating the provisions of Section 63-7-301 shall be fined not
more than Twenty-five Dollars ($25.00) for each offense.
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CHAPTER 14
TRAFFIC VIOLATIONS PROCEDURES
1400 REGULATIONS ON TRAFFIC VIOLATIONS PROCEDURES
1401 UNIFORM TRAFFIC TICKET LAW
Form and content of tickets
Traffic ticket books
Who is to keep a record of traffic ticket books issued
Automatic filing for traffic tickets submitted electronically
Officer to deliver traffic ticket to clerk
Copy of ticket filed with the State Auditor
Failure to comply with Section 63-9-21 a misdemeanor
Filing by computer or electronic means
Penalties for failing to comply with § 63-9-21
1402 DEPOSITING LICENSE FOR BAIL
When allowed
Receipt for license deposited
License forwarded to Public Safety if driver fails to appear
If out-of-state license is forwarded
Unlawful application for a duplicate license
DUI arrests not governed by § 63-9-25
1403 GUARANTEED ARREST BOND CERTIFICATE
Posting a guaranteed arrest bond certificate
Forfeiture and collection
Authorized sureties
Guaranteed arrest bond certificate defined
Supplementary and complementary to § 63-9-25
1404 CRIMINAL LIABILITY
Traffic violations as misdemeanors
Penalties
Paying a traffic fine by personal check
Depositing fines and forfeitures
1405 TRAFFIC SAFETY VIOLATOR COURSE
Eligibility
If a plea of nolo contendere or guilty
If convicted at trial
Out-of-state residents
Traffic safety violator course requirements
Court to inform the defendant of traffic safety violator course
Conviction not invalidated if defendant fails to elect option
Prohibition that applies to employees of sentencing court
Clerk to forward $10.00 fee to State Treasurer
Option does not apply to the holder of a commercial driver’s license
1406 REPORTING CONVICTIONS
Court to keep full record of proceedings
Certified abstract forwarded to Public Safety
Information to be included in the certified abstract
Reporting completion of approved traffic safety violator course
Penalties for failing to comply with § 63-9-17
Public Safety to keep copies of abstracts for 3 years
1407 VOLUNTARY ADVANCE PAYMENT OF FINES
Definitions
Paying the amount of fine in advance
Court may accept a cash appearance bond
Court’s authority to convict
Reporting requirements
1408 HIGHWAY SAFETY PATROL AND DRIVER’S LICENSE LAW
Notice for failure to pay any fine, fee or assessment
Public Safety authorized to suspend license
Court may pursue collection for delinquent payment
Judge's suspension of minor's license
1400 REGULATIONS ON TRAFFIC VIOLATIONS PROCEDURES
The “Uniform Highway Traffic Regulation Law–Traffic Violations Procedure” is set
forth in Chapter 9 of Title 63 and covers traffic violation procedures for Chapter 3 of
Title 63 “Rules of the Road,” Chapter 5 of Title 63 “Size, Weight, and Load
Regulations,” and Chapter 7 of Title 63 “Equipment and Identification Regulations.”
1401 UNIFORM TRAFFIC TICKET LAW
§ 63-9-21 Form and content of tickets:
(1) This section shall be known as the Uniform Traffic Ticket Law.
(2) All traffic tickets, except traffic tickets filed electronically as provided under
subsection (8) of this section, shall be printed in the original and at least two (2) copies
and such other copies as may be prescribed by the Commissioner of Public Safety. All
traffic tickets shall be uniform as prescribed by the Commissioner of Public Safety and
the Attorney General, except as otherwise provided in subsection (3)(b) and except that
the Commissioner of Public Safety and the Attorney General may alter the form and
content of traffic tickets to meet the varying requirements of the different law
enforcement agencies. The Commissioner of Public Safety and the Attorney General shall
prescribe a separate traffic ticket, consistent with the provisions of subsection (3)(b) of
this section, to be used exclusively for violations of the Mississippi Implied Consent Law.
(3)(a) Every traffic ticket issued by any sheriff, deputy sheriff, constable, county patrol
officer, municipal police officer or State Highway Patrol officer for any violation of
traffic or motor vehicle laws shall be issued on the uniform traffic ticket or uniform
implied consent law violation ticket consisting of an original and at least two (2) copies
and such other copies as may be prescribed by the Commissioner of Public Safety.
(b) The traffic ticket, citation or affidavit issued to a person arrested for a violation of the
Mississippi Implied Consent Law shall contain a place for the trial judge hearing the case
or accepting the guilty plea, as the case may be, to sign, stating that the person arrested
either employed an attorney or waived his right to an attorney after having been properly
advised of his right to have an attorney. If the person arrested employed an attorney, the
name, address and telephone number of the attorney shall be entered or written on the
ticket, citation or affidavit.
(c) Every traffic ticket shall show, among other necessary information, the name of the
issuing officer, the name of the court in which the cause is to be heard, and the date and
time the person is to appear to answer the charge. The ticket shall include information
that will constitute a complaint charging the offense for which the ticket was issued, and
when duly sworn to and filed with a court of competent jurisdiction, prosecution may
proceed thereunder.
(d) The traffic ticket shall contain a space to include the current address and current
telephone number of the person being charged. It shall not contain a space to include the
social security number of the person being charged.
See also Loveless v. City of Booneville, 958 So. 2d 230, 233 (Miss. Ct App. 2007)
(“There is no requirement that the address of the municipal court be contained on the
ticket.”); Scott v. City of Booneville, 962 So. 2d 698, 702 (Miss. Ct. App. 2007) (“This is
not a case of the city purposefully continuing to use outdated Uniform Traffic Tickets. . . .
[T]he ticket in question contained all the statutorily required information; therefore, it
constituted a sworn affidavit.”).
Mississippi Attorney General’s opinions:
Due process requires the date and time for appearance.
“Due process would mandate that a person served with a ticket be provided the date and
time on which he is to answer the charge. The ticket should either be dismissed without
prejudice and a new ticket providing the required information be served on the person; or
the ticket should be amended to include all of the required information and the amended
ticket be served on the person.” Op. Atty. Gen. Pittman, March 21, 2008.
Officer who issues the ticket must sign and acknowledge it.
“[T]he law enforcement officer who actually issues the ticket to the defendant must sign
the affidavit/ticket and acknowledge the affidavit when filed with the clerk of the court.
One officer cannot acknowledge an affidavit/citation that is issued by another officer.”
Op. Atty. Gen. Hatcher, July 30, 2004.
Section 63-9-21(3)(c) requires the date and time for appearance.
“Section 63-9-21(3)(c) requires the date and time for appearance on the face of the
citation. . . . Therefore, it is the opinion of this office that notice to the defendant to either
pay the ticket or contact the court does not satisfy the requirements of Section
63-9-21(3)(c).” Op. Atty. Gen. Payne, September 6, 2002.
§ 63-9-21 Traffic ticket books:
(4) All traffic tickets, except traffic tickets filed electronically under subsection (8) of this
section, shall be bound in book form, shall be consecutively numbered and each traffic
ticket shall be accounted for to the officer issuing such book. The traffic ticket books
shall be issued to sheriffs, deputy sheriffs, constables and county patrol officers by the
chancery clerk of their respective counties, to each municipal police officer by the clerk
of the municipal court, and to each State Highway Patrol officer by the Commissioner of
Public Safety.
§ 63-9-21 Who is to keep a record of traffic ticket books issued:
(5) The chancery clerk, clerk of the municipal court and the Commissioner of Public
Safety shall keep a record of all traffic ticket books issued and to whom issued,
accounting for all books printed and issued.
§ 63-9-21 Automatic filing for traffic tickets submitted electronically:
(5) . . . All traffic tickets submitted electronically shall be filed automatically with the
Commissioner of Public Safety and either the clerk of the municipal court or clerk of the
justice court using the system of electronic submission for the purpose of maintaining a
record of account as prescribed by this subsection (5).
§ 63-9-21 Officer to deliver ticket to clerk:
(6) The original traffic ticket, unless the traffic ticket is filed electronically as provided
under subsection (8) of this section, shall be delivered by the officer issuing the traffic
ticket to the clerk of the court to which it is returnable to be retained in that court's
records and the number noted on the docket. However, if a ticket is issued and the person
is incarcerated based upon the conduct for which the ticket was issued, the ticket shall be
filed with the clerk of the court to which it is returnable no later than 5:00 p.m. on the
next business day, excluding weekends and holidays, after the date and time of the
person's incarceration; however, failure to timely file the traffic ticket shall not be
grounds for dismissal of the traffic ticket and shall not prevent the person's release from
incarceration. The officer issuing the traffic ticket shall also give the accused a copy of
the traffic ticket.
§ 63-9-21 Copy of ticket filed with the State Auditor:
(6) . . . The clerk of the court shall file a copy with the Commissioner of Public Safety
within forty-five (45) days after judgment is rendered showing such information about the
judgment as may be required by the commissioner or, in cases in which no judgment has
been rendered, within one hundred twenty (120) days after issuance of the ticket. Other
copies that are prescribed by the commissioner pursuant to this section shall be filed or
retained as may be designated by the commissioner. All copies shall be retained for at
least two (2) years.
§ 63-9-21 Failure to comply with Section 63-9-21 a misdemeanor:
(7) Failure to comply with the provisions of this section shall constitute a misdemeanor
and, upon conviction, shall be punishable by a fine of not less than Ten Dollars ($10.00)
nor more than One Hundred Dollars ($100.00).
§ 63-9-21 Filing by computer or electronic means:
(8)(a) Law enforcement officers and agencies may file traffic tickets, including tickets
issued for a violation of the Mississippi Implied Consent Law and general misdemeanor
affidavits, by computer or electronic means if the ticket or affidavit conforms in all
substantive respects, including layout and content, as provided under subsections (2) or
(3)(b) of this section. The provisions of subsection (4) of this section requiring tickets
bound in book form do not apply to a ticket that is produced by computer or electronic
means. Information concerning tickets produced by computer or electronic means shall be
available for public inspection in substantially the same manner as provided for the
uniform tickets described in subsection (2) of this section.
(b) The defendant shall be provided with a paper copy of the ticket. A law enforcement
officer who files a ticket or misdemeanor affidavit electronically shall be considered to
have certified, signed and sworn to the ticket or misdemeanor affidavit and has the same
rights, responsibilities and liabilities as with all other tickets or affidavits issued pursuant
to this section.
Mississippi Attorney General’s opinions:
Filing electronic tickets.
“[Section 63-9-21] provides that the officer shall be considered to have certified, signed
and sworn to the ticket. It is the opinion of this office that the officer is not required to
appear before the clerk to swear to a ticket that by law has been already been sworn to.”
Op. Atty. Gen. Smith, February 21, 2014.
§ 63-9-21 Penalties for failing to comply with § 63-9-21:
(7) Failure to comply with the provisions of this section shall constitute a misdemeanor
and, upon conviction, shall be punishable by a fine of not less than Ten Dollars ($10.00)
nor more than One Hundred Dollars ($100.00).
1402 DEPOSITING LICENSE FOR BAIL
§ 63-9-25 When allowed:
(1) Whenever any person lawfully possessed of a driver's license theretofore issued to
him by the Department of Public Safety of the State of Mississippi, or under the laws of
any other state or territory, or the District of Columbia of the United States, shall be
arrested and charged with any offense against the traffic or motor vehicle laws or rules of
the road of this state, or any municipality thereof, he shall have the option of depositing
his driver's license so issued to him with the arresting officer or the court in lieu of any
other security which may be required for his appearance in any court in this state in
answer to such charge lodged in such court.
§ 63-9-25 Receipt for license deposited:
(2) If such person arrested elects to deposit his license as provided, the arresting officer or
court shall issue such person a receipt for said license upon a form furnished or prescribed
by the Mississippi Department of Public Safety, and thereafter said person shall be
permitted to operate a motor vehicle upon the highways of this state and streets of the
municipalities thereof during the pendency of the case in which the license was deposited
unless his license or privilege is otherwise revoked, suspended or canceled, but in no case
for a period longer than thirty (30) days.
§ 63-9-25 License forwarded to Public Safety if driver fails to appear:
(3) The clerk of the court in which the charge is lodged shall immediately forward to the
department the license of the driver deposited in lieu of bail if the driver fails to appear in
answer to the charge against him. The Commissioner of Public Safety or his authorized
agent shall, upon receipt of a license so forwarded by the court, suspend the driver's
license and driving privilege of the defaulting driver until notified by the court that the
charge against such driver has been finally adjudicated.
§ 63-9-25 If out-of-state license is forwarded:
(4) The commissioner shall, upon receipt of a license of a nonresident driver, forward
notice to his counterpart in the state of the driver's residence of the fact that such driver
has been charged with a traffic or motor vehicle offense or a violation of the rules of the
road and has so deposited his license in lieu of bail.
§ 63-9-25 Unlawful application for a duplicate license:
(5) The making of an application for a duplicate driver's license during the period when
the original license is posted for an appearance in a court shall be unlawful, shall
constitute a misdemeanor and a person convicted thereof shall be subject to a fine of not
more than Five Hundred Dollars ($500.00) or imprisonment for not more than six (6)
months, or both fine and imprisonment.
§ 63-9-25 DUI arrests not governed by § 63-9-25:
(6) The provisions of this section shall not govern arrests for driving under the influence
of alcohol. The procedure set forth in the Mississippi Implied Consent Law, Sections
63-11-1 through 63-11-47, Mississippi Code of 1972, shall apply.
Mississippi Attorney General’s opinions:
Posting driver’s license in lieu of bond.
“[Section] 63-9-25 allows a defendant to post his driver’s license in lieu of bond when he
is charged with a traffic offense.” Op. Atty. Gen. Strait, September 26, 2003.
1403 GUARANTEED ARREST BOND CERTIFICATE
§ 63-9-27 Posting a guaranteed arrest bond certificate:
(1) A guaranteed arrest bond certificate with respect to which a fidelity and surety
company has become surety as provided in subsection (2) of this section, when posted by
the person whose signature appears thereon, shall be accepted in lieu of cash bail in an
amount not to exceed two hundred dollars ($200.00), as a bail bond, to guarantee the
appearance of such person in any court in this state at such time as may be required by the
court, when such person is arrested for violation of any traffic laws of any municipality or
county of this state, except for the offense of driving while under the influence of
intoxicating liquors, drugs or narcotics, or for any felony, and the alleged violation was
committed prior to the date of expiration shown on such guaranteed arrest bond
certificate.
§ 63-9-27 Forfeiture and collection:
(1) . . . Any such guaranteed arrest bond certificate so posted as a bail bond in any court
in this state shall be subject to the forfeiture and collection provisions of law applicable to
a bail bond, except that any judgment forfeiting a guaranteed arrest bond certificate
rendered under such forfeiture and collection provisions shall, at any time within thirty
(30) days after rendition, be set aside upon the surrender, or the appearance and trial and
conviction or acquittal of the defendant, or upon a continuance granted upon motion of
the district attorney after such appearance.
§ 63-9-27 Authorized sureties:
(2) Any domestic or foreign insurance company which has qualified to transact fidelity
and surety insurance business in this state may, in any year, become surety in an amount
not to exceed two hundred dollars ($200.00) with respect to each guaranteed arrest bond
certificate issued in such year by an automobile club, automobile association or insurance
company authorized to transact automobile liability insurance business within this state or
by the fidelity and surety company itself.
§ 63-9-27 Guaranteed arrest bond certificate defined:
(2) . . . The term “guaranteed arrest bond certificate,” as used in this section, means a
printed card or other certificate issued by an automobile club, automobile association,
insurance company authorized to transact automobile liability insurance within this state,
or an insurance company authorized to transact fidelity and surety insurance business
within this state to any of its members or insureds, which is signed by such member or
insured, and contains a printed statement that a fidelity and surety company authorized to
do business in this state guarantees the appearance of the person whose signature appears
on the card or certificate, and that such company will, in the event of the failure of such
person to appear in court at the time of trial, pay any fine or forfeiture imposed on such
person in an amount not to exceed two hundred dollars ($200.00).
The issuance of a “guaranteed arrest bond certificate,” as defined above, by an automobile
club, automobile association or insurance company not authorized to transact fidelity and
surety insurance business in this state shall not be construed as engaging in fidelity and
surety insurance business in this state by such automobile club, automobile association or
insurance company.
§ 63-9-27 Supplementary and complementary to § 63-9-25:
(3) This section shall be supplementary and complementary to section 63-9-25 and shall
not be construed as affecting or amending that section in any way.
1404 CRIMINAL LIABILITY
§ 63-9-11 Traffic violations as misdemeanors:
(1) It is a misdemeanor for any person to violate any of the provisions of Chapter 3, 5 or 7
of this title, unless such violation is by such chapters or other law of this state declared to
be a felony.
§ 63-9-11 Penalties:
(2) Every person convicted of a misdemeanor for a violation of any of the provisions of
[Chapter 3, 5 or 7 of this title] for which another penalty is not provided shall for first
conviction thereof be punished by a fine of not more than One Hundred Dollars ($100.00)
or by imprisonment for not more than ten (10) days; for a second such conviction within
one (1) year thereafter such person shall be punished by a fine of not more than Two
Hundred Dollars ($200.00) or by imprisonment for not more than twenty (20) days or by
both such fine and imprisonment; upon a third or subsequent conviction within one (1)
year after the first conviction such person shall be punished by a fine of not more than
Five Hundred Dollars ($500.00) or by imprisonment for not more than six (6) months or
by both such fine and imprisonment.
§ 63-9-12 Paying a traffic fine by personal check:
Personal checks shall be accepted from Mississippi residents in payment of any fine
imposed as a result of a violation of Chapters 3, 5 and 7 of Title 63, Mississippi Code of
1972. The person accepting a check in payment of such a fine shall not be liable if such
check is returned not paid provided he makes reasonable efforts to collect the fine.
§ 63-9-13 Depositing fines and forfeitures:
All fines and forfeitures collected upon conviction or upon forfeiture of bail of any person
charged with a violation of any of the provisions of Chapters 3, 5 or 7 of this title
constituting a misdemeanor shall be deposited in the treasury of the county maintaining
the court wherein such conviction or forfeiture was had.
1405 TRAFFIC SAFETY VIOLATOR COURSE
§ 63-9-11 Eligibility:
(3)(a) Whenever a person not covered under Section 63-1-55 is charged with a
misdemeanor violation of any of the provisions of Chapter 3, 5 or 7 of this title, the
person shall be eligible to participate in not less than four (4) hours of a traffic safety
violator course and thereby have no record of the violation on the person's driving record
if the person meets all the following conditions:
(i) The defendant has a valid Mississippi driver's license or permit.
(ii) The defendant has not had a conviction of a violation under Chapter 3, 5 or 7 of this
title within three (3) years before the current offense; any conviction entered before
October 1, 2002, does not constitute a prior offense for the purposes of this subsection
(3).
(iii) The defendant's public and nonpublic driving record as maintained by the
Department of Public Safety does not indicate successful completion of a traffic safety
violator course under this section in the three-year period before the offense.
(iv) The defendant files an affidavit with the court stating that this is the defendant's first
conviction in more than three (3) years or since October 1, 2002, whichever is the lesser
period of time; the defendant is not in the process of taking a course under this section;
and the defendant has not completed a course under this section that is not yet reflected
on the defendant's public or nonpublic driving record.
(v) The offense charged is for a misdemeanor offense under Chapter 3, 5 or 7 of this title.
(vi) The defendant pays the applicable fine, costs and any assessments required by law to
be paid upon conviction of such an offense.
(vii) The defendant pays to the court an additional fee of Ten Dollars ($10.00) to elect to
proceed under the provisions of this subsection (3).
§ 63-9-11 If a plea of nolo contendere or guilty:
(3)(b)(i) 1. An eligible defendant may enter a plea of nolo contendere or guilty in person
or in writing and present to the court, in person or by mail postmarked on or before the
appearance date on the citation, an oral or written request to participate in a course under
this subsection (3).
2. The court shall withhold acceptance of the plea and defer sentencing in order to allow
the eligible defendant ninety (90) days to successfully complete not less than four (4)
hours of a court-approved traffic safety violator course at the cost of the defendant. Upon
proof of successful completion entered with the court, the court shall dismiss the
prosecution and direct that the case be closed. The only record maintained thereafter
shall be the nonpublic record required under Section 63-9-17 solely for use by the courts
in determining eligibility under this subsection (3).
§ 63-9-11 If convicted at trial:
(3)(b)(ii) If a person pleads not guilty to a misdemeanor offense under any of the
provisions of Chapter 3, 5 or 7 of this title but is convicted, and the person meets all the
requirements under paragraph (a) of this subsection, upon request of the defendant the
court shall suspend the sentence for such offense to allow the defendant forty-five (45)
days to successfully complete not less than four (4) hours of a court-approved traffic
safety violator course at his own cost. Upon successful completion by the defendant of
the course, the court shall set the conviction aside, dismiss the prosecution and direct that
the case be closed. The court on its own motion shall expunge the record of the
conviction, and the only record maintained thereafter shall be the nonpublic record
required under Section 63-9-17 solely for use by the courts in determining an offender's
eligibility under this subsection (3).
§ 63-9-11 Out-of-state residents:
(3)(c) An out-of-state resident shall be allowed to complete a substantially similar
program in his home state, province or country provided the requirements of this
subsection (3) are met, except that the necessary valid driver's license or permit shall be
one issued by the home jurisdiction.
§ 63-9-11 Traffic safety violator course requirements:
(3)(d) A court shall not approve a traffic safety violator course under this subsection (3)
that does not supply at least four (4) hours of instruction, an instructor's manual setting
forth an appropriate curriculum, student workbooks, some scientifically verifiable
analysis of the effectiveness of the curriculum and provide minimum qualifications for
instructors.
§ 63-9-11 Court to inform the defendant of traffic safety violator course:
(3)(e) A court shall inform a defendant making inquiry or entering a personal appearance
of the provisions of this subsection (3).
§ 63-9-11 Conviction not invalidated if defendant fails to elect option:
(3)(g) Failure of a defendant to elect to come under the provisions of this subsection (3)
for whatever reason, in and of itself, shall not invalidate a conviction.
§ 63-9-11 Prohibition that applies to employees of sentencing court:
(3)(h) No employee of the sentencing court shall personally benefit from a defendant's
attendance of a traffic safety violator course. Violation of this prohibition shall result in
termination of employment.
§ 63-9-11 Clerk to forward $10.00 fee to State Treasurer:
(3)(i) The additional fee of Ten Dollars ($10.00) imposed under this subsection (3) shall
be forwarded by the court clerk to the State Treasurer for deposit into a special fund
created in the State Treasury.
§ 63-9-11 Option does not apply to the holder of a commercial driver’s license:
(4) The provisions of subsection (3) of this section shall not be applicable to violation of
any of the provisions of Chapter 3, 5 or 7 of this title committed by the holder of a
commercial driver's license issued under the Mississippi Commercial Driver's License
Law, regardless of whether the violation occurred while operating a commercial motor
vehicle or some other motor vehicle.
1406 REPORTING CONVICTIONS
§ 63-9-17 Court to keep full record of proceedings:
(1) Every court shall keep a full record of the proceedings of every case in which a person
is charged with any violation of law regulating the operation of vehicles on the highways,
streets or roads of this state.
§ 63-9-17 Certified abstract forwarded to Public Safety:
(2) Unless otherwise sooner required by law, within five (5) days after the conviction of a
person upon a charge of violating any law regulating the operation of vehicles on the
highways, streets or roads of this state, every court in which such conviction was had
shall prepare and immediately forward to the Department of Public Safety an abstract of
the record of said court covering the case in which said person was so convicted, which
abstract must be certified by the person so authorized to prepare the same to be true and
correct.
See also Miss. Code Ann. 63-1-51(1) (“It shall be the duty of the court clerk, upon
conviction of any person holding a license issued pursuant to this article where the
penalty for a traffic violation is as much as Ten Dollars ($10.00), to mail a copy of
abstract of the court record or provide an electronically or computer generated copy of
abstract of the court record immediately to the commissioner at Jackson, Mississippi,
showing the date of conviction, penalty, etc., so that a record of same may be made by the
Department of Public Safety.”).
§ 63-9-17 Information to be included in the certified abstract:
(3) Said abstract must be made upon a form approved by the Department of Public Safety,
and shall include the name and address of the party charged, the registration number of
the vehicle involved, the nature of the offense, the date of hearing, the plea, the judgment,
and if the fine was satisfied by prepayment or appearance bond forfeiture, and the amount
of the fine or forfeiture, as the case may be.
§ 63-9-17 Reporting completion of approved traffic safety violator course:
(5) Every court shall also forward a like report to the Department of Public Safety after
the satisfactory completion by a defendant of an approved traffic safety violator course
under Section 63-9-11, and the department shall make and maintain a private, nonpublic
record to be kept for a period of ten (10) years. The record shall be solely for the use of
the courts in determining eligibility under Section 63-9-11, as a first-time offender, and
shall not constitute a criminal record for the purpose of private or administrative inquiry.
Reports forwarded to the Department of Public Safety under this subsection shall be
exempt from the provisions of the Mississippi Public Records Act of 1983.
§ 63-9-17 Penalties for failing to comply with § 63-9-17:
(6) The failure by refusal or neglect of any such judicial officer to comply with any of the
requirements of this section shall constitute misconduct in office and shall be grounds for
removal therefrom.
§ 63-9-17 Public Safety to keep copies of abstracts for 3 years:
(7) The Department of Public Safety shall keep copies of all abstracts received hereunder
for a period of three (3) years at its main office and the same shall be open to public
inspection during reasonable business hours. This subsection shall not apply to nonpublic
records maintained solely for the use of the courts in determining offender eligibility.
1407 VOLUNTARY ADVANCE PAYMENT OF FINES
§ 99-19-3 Definitions:
(3) For the purposes of this section:
(a) The term “fine” means, in addition to the pecuniary punishment, all fees, costs,
assessments and other charges required by law to be imposed in such cases.
(b) The term “traffic misdemeanor” means a violation of traffic or motor vehicle laws that
do not require mandatory imprisonment upon conviction but shall not include repeat
offenders where a sentence of imprisonment is likely and shall not include charges under
the Mississippi Implied Consent Law.
§ 99-19-3 Paying the amount of fine in advance:
(2) In all cases in the circuit, county, justice and municipal courts involving a traffic
misdemeanor violation . . . where a person has been issued a ticket or has been formally
charged by affidavit, indictment or information and desires to waive a trial and not appear
in court and defend the charge, the amount of the fine, in the discretion of the court, may
be paid in advance to the clerk of the court. When the fine is paid in advance, the person
cited must be notified by language plainly printed on a waiver form or the ticket of the
person's right to a trial and the consequences of the voluntary advance payment of the
fine.
§ 99-19-3 Court may accept a cash appearance bond:
(2) . . . In cases where formal charges have been made and the person charged has been
notified to appear in court at a certain date and time, the clerk of the court is authorized to
accept a cash appearance bond, not to exceed the amount of the fine, conditioned upon
the appearance of the person in court at the cited date and time. In the event of default,
the cash appearance bond may be forfeited in payment of any judgment in the case in an
amount not to exceed the amount of the bond; and in such cases of cash appearance bond
forfeiture, it shall be final without necessity of judgment nisi and issuance of the writ of
scire facias.
§ 99-19-3 Court’s authority to convict:
(2) . . . In the event a person so cited or charged pays a fine in advance after notice of the
person's rights, this shall constitute a waiver of formal charge, arraignment and trial; and
in such cases and in cases of default on cash appearance bond, such action shall be a plea
of nolo contendere by such person and the court, upon the advance payment of fine or the
default on cash appearance bond, may convict the person of the offense stated in the
ticket or formal charges without further appearance by the person.
§ 99-19-3 Reporting requirements:
(2) . . . Traffic convictions shall be reported to the Commissioner of Public Safety as
required by law . . . It shall not be necessary to enter traffic misdemeanor cases in the
municipal court docket.
1408 HIGHWAY SAFETY PATROL AND DRIVER’S LICENSE LAW
§ 63-1-53 Notice for failure to pay any fine, fee or assessment:
(1) Upon failure of any person to pay timely any fine, fee or assessment levied as a result
of any violation of this title, the clerk of the court shall give written notice to such person
by United States first-class mail at his last known address advising such person that, if
within ninety (90) days after such notice is deposited in the mail, the person has not paid
the entire amount of all fines, fees and assessments levied, then the court will pursue
collection as for any other delinquent payment, and shall be entitled to collection of all
additional fees in accordance with subsection (4) of this section.
§ 63-1-53 Public Safety authorized to suspend license:
(2) The commissioner is hereby authorized to suspend the license of an operator without
preliminary hearing upon a showing by his records or other sufficient evidence that the
licensee:
(a) Has committed an offense for which mandatory revocation of license is required upon
conviction except under the provisions of the Mississippi Implied Consent Law;
(b) Has been involved as a driver in any accident resulting in the death or personal injury
of another or serious property damage;
(c) Is an habitually reckless or negligent driver of a motor vehicle;
(d) Has been convicted with such frequency of serious offenses against traffic regulations
governing the movement of vehicles as to indicate a disrespect for traffic laws and a
disregard for the safety of other persons on the highways;
(e) Is incompetent to drive a motor vehicle;
(f) Has permitted an unlawful or fraudulent use of such license;
(g) Has committed an offense in another state which if committed in this state would be
grounds for suspension or revocation; or
(h) Has committed a violation for which mandatory revocation of license is required upon
conviction, entering a plea of nolo contendere to, or adjudication of delinquency, pursuant
to the provisions of subsection (1) of Section 63–1–71.
§ 63-1-53 Court may pursue collection for delinquent payment:
(4) If a licensee has not paid all cash appearance bonds authorized under Section 99–19–3
or all fines, fees or other assessments levied as a result of a violation of this title within
ninety (90) days after receiving notice of the licensee's failure to pay all fines, fees or
other assessments as provided in subsection (1) of this section, the court is authorized to
pursue collection under Section 21–17–1(6) or 19–3–41(2) as for any other delinquent
payment, and shall be entitled to collection of all additional fees authorized under those
sections.
Mississippi Attorney General’s opinions:
Contempt penalty for failure to pay fine requires an adjudication.
“[N]otice referencing the bench warrant and contempt fee is separate and distinct from
the statutory 10 day notice for failure to appear or failure to pay provided in Section
63-1-53 of the Mississippi Code. If within ten (10) days after the statutory notice is
deposited in the mail and the defendant has not responded his license may be suspended
by the Commissioner of Public Safety. . . . However, there is no authority to impose a
penalty or fee for contempt unless and until the court adjudicates the defendant to be in
contempt.” Op. Atty. Gen. Amaker, March 30, 2012.
Purpose of Section 63-1-53.
“[T]he purpose of [Section 63-1-53] is to give a person 10 days to respond to a citation.
Therefore, you should wait until the 10 day period has expired before issuing a warrant.”
Op. Atty. Gen. Reno, July 29, 2005.
§ 63-1-55 Judge's suspension of minor's license:
A trial judge, in his discretion, if the person so convicted or who has entered a plea of
guilty for any traffic violation, except the offenses enumerated in paragraphs (a) through
(e) of subsection (1) of Section 63-1-51 and violations of the Implied Consent Law and
the Uniform Controlled Substances Law, is a minor and dependent upon and subject to
the care, custody and control of his parents or guardian, may, in lieu of the penalties
otherwise provided by law and the provision of said section, suspend such minor's driver's
license by taking and keeping same in custody of the court for a period of time not to
exceed ninety (90) days. The judge so ordering such suspension shall enter upon his
docket “DEFENDANT'S DRIVER'S LICENSE SUSPENDED FOR __________ DAYS
IN LIEU OF CONVICTION” and such action by the trial judge shall not constitute a
conviction. The trial judge also may require the minor to successfully complete a
defensive driving course approved by the judge as a condition of the suspension. Costs of
court and penalty assessment for driver education and training program may be imposed
in such actions within the discretion of the court. Should a minor appeal, in the time and
manner as by law provided, the decision whereby his license is suspended, the trial judge
shall then return said license to the minor and impose the fines and/or penalties that he
would have otherwise imposed and same shall constitute a conviction.
CHAPTER 15
DOMESTIC VIOLENCE, ASSAULTS, AND DISTURBANCES
1500 SIMPLE DOMESTIC VIOLENCE
Prosecutor’s duty to file charges
Simple domestic violence
Simple domestic violence third is a felony
“Dating relationship” defined
Requiring counseling or treatment
Criminal protection orders
Sentencing order to include designation “domestic violence”
1501 SIMPLE AND AGGRAVATED ASSAULT
Simple assault
Felony assault
1502 DISTURBING THE FAMILY OR PUBLIC PEACE
Tumultuous or offensive conduct
Abusive language or indecent exposure
Disturbance in public place
Disturbance of the peace
1503 STALKING
Elements of the offense
General penalties
Penalties if there is a protective order
Aggravated stalking
Prohibiting contact with the victim
Ordering psychological counseling
Prohibited defense to stalking
Officers to utilize Uniform Offense Report
Venue for stalking offenses
“Course of conduct” and “credible threat” defined
If person incarcerated at time of the threat
1504 THREATENING LETTERS
1505 PUBLIC PROFANITY OR DRUNKENNESS
Elements of the offense
Ordering alcohol treatment and rehabilitation
1506 CHILD NEGLECT, DELINQUENCY OR ABUSE
Misdemeanor offenses and penalties
Felonious child abuse or child endangerment
Parent or guardian not exempt from prosecution
Ordering treatment at an approved facility
Admissibility of the physician’s testimony and report
Jurisdiction to try case
1507 SECTION 99-15-26 LIMITATIONS; EXCEPTION
Not applicable to crimes against the person
Exception for domestic violence
1500 SIMPLE DOMESTIC VIOLENCE
§ 93-21-113 Prosecutor’s duty to file charges:
Every municipal prosecutor, county attorney, district attorney or other appropriate law
enforcement official who, having had reported to him a case of domestic violence, if the
facts submitted be sufficient, shall immediately file charges against the offender on the
behalf of the victim. Such prosecutor may in plea bargaining with the offender enter into
an agreement whereby the offender shall receive counseling in lieu of further prosecution,
and if the offender shall successfully attend counseling as agreed upon for the period of
time agreed upon, the municipal prosecutor, county attorney or district attorney, as the
case may be, shall pass such case to the file.
No municipal prosecutor, county attorney or district attorney shall grant such right in plea
bargaining to the same offender more than once.
§ 97-3-7 Simple domestic violence:
(3)(a) When the offense is committed against a current or former spouse of the defendant
or a child of that person, a person living as a spouse or who formerly lived as a spouse
with the defendant or a child of that person, a parent, grandparent, child, grandchild or
someone similarly situated to the defendant, a person who has a current or former dating
relationship with the defendant, or a person with whom the defendant has had a biological
or legally adopted child, a person is guilty of simple domestic violence who:
(i) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to
another;
(ii) Negligently causes bodily injury to another with a deadly weapon or other means
likely to produce death or serious bodily harm; or
(iii) Attempts by physical menace to put another in fear of imminent serious bodily harm.
Upon conviction, the defendant shall be punished by a fine of not more than Five
Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6)
months, or both.
. . .
(6) In sentencing under subsections (3), (4) and (5) of this section, the court shall consider
as an aggravating factor whether the crime was committed in the physical presence or
hearing of a child under sixteen (16) years of age who was, at the time of the offense,
living within either the residence of the victim, the residence of the perpetrator, or the
residence where the offense occurred.
. . .
(7) Reasonable discipline of a child, such as spanking, is not an offense under subsections
(3) and (4) of this section.
See also Miss. Code Ann. § 99-3-7 (Warrantless arrests; domestic violence and protection
order violations); Miss. Code Ann. § 99-5-37 (Appearance in domestic violence and
knowing violation of domestic abuse protective orders cases; bail; imposition of special
conditions).
§ 97-3-7 Simple domestic violence third is a felony:
(b) Simple domestic violence: third. A person is guilty of the felony of simple domestic
violence third who commits simple domestic violence as defined in this subsection (3)
and who, at the time of the commission of the offense in question, has two (2) prior
convictions, whether against the same or another victim, within seven (7) years, for any
combination of simple domestic violence under this subsection (3) or aggravated
domestic violence as defined in subsection (4) of this section or substantially similar
offenses under the law of another state, of the United States, or of a federally recognized
Native American tribe. Upon conviction, the defendant shall be sentenced to a term of
imprisonment not less than five (5) nor more than ten (10) years.
See also Miss. Code Ann. § 97-3-7(4) and (5) (aggravated domestic violence, aggravated
domestic violence third, and sentencing for fourth or subsequent domestic violence
offense).
§ 97-3-7 “Dating relationship” defined:
(9)(b) For the purposes of this section: “Dating relationship” means a social relationship
as defined in Section 93–21–3.
Miss. Code Ann. § 93-21-3 provides in part:
(d) “Dating relationship” means a social relationship of a romantic or intimate nature
between two (2) individuals; it does not include a casual relationship or ordinary
fraternization between two (2) individuals in a business or social context. Whether a
relationship is a “dating relationship” shall be determined by examining the following
factors:
(i) The length of the relationship;
(ii) The type of relationship; and
(iii) The frequency of interaction between the two (2) individuals involved in the
relationship.
§ 97-3-7 Requiring counseling or treatment:
(10) Every conviction under subsection (3), (4) or (5) of this section may require as a
condition of any suspended sentence that the defendant participate in counseling or
treatment to bring about the cessation of domestic abuse. The defendant may be required
to pay all or part of the cost of the counseling or treatment, in the discretion of the court.
§ 97-3-7 Criminal protection orders:
(11)(a) Upon conviction under subsection (3), (4) or (5) of this section, the court shall be
empowered to issue a criminal protection order prohibiting the defendant from any
contact with the victim. The court may include in a criminal protection order any other
condition available under Section 93–21–15. The duration of a criminal protection order
shall be based upon the seriousness of the facts before the court, the probability of future
violations, and the continued safety of the victim or another person. However, municipal
and justice courts may issue criminal protection orders for a maximum period of time not
to exceed one (1) year. Circuit and county courts may issue a criminal protection order for
any period of time deemed necessary. Upon issuance of a criminal protection order, the
clerk of the issuing court shall enter the order in the Mississippi Protection Order Registry
within twenty-four (24) hours of issuance with no exceptions for weekends or holidays,
pursuant to Section 93-21-25.
(b) A criminal protection order shall not be issued against the defendant if the victim of
the offense, or the victim's lawful representative where the victim is a minor or
incompetent person, objects to its issuance, except in circumstances where the court, in
its discretion, finds that a criminal protection order is necessary for the safety and
well-being of a victim who is a minor child or incompetent adult.
(c) Criminal protection orders shall be issued on the standardized form developed by the
Office of the Attorney General and a copy provided to both the victim and the defendant.
(d) It shall be a misdemeanor to knowingly violate any condition of a criminal protection
order. Upon conviction for a violation, the defendant shall be punished by a fine of not
more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not
more than six (6) months, or both.
§ 97-3-7 Sentencing order to include designation “domestic violence”:
(13) In any conviction under subsection (3), (4), (5) or (11) of this section, the sentencing
order shall include the designation “domestic violence.” The court clerk shall enter the
disposition of the matter into the corresponding uniform offense report.
1501 SIMPLE AND AGGRAVATED ASSAULT
§ 97-3-7 Simple assault:
(1)(a) A person is guilty of simple assault if he or she (i) attempts to cause or purposely,
knowingly or recklessly causes bodily injury to another; (ii) negligently causes bodily
injury to another with a deadly weapon or other means likely to produce death or serious
bodily harm; or (iii) attempts by physical menace to put another in fear of imminent
serious bodily harm; and, upon conviction, he or she shall be punished by a fine of not
more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not
more than six (6) months, or both.
§ 97-3-7 Felony assault:
(1)(b) However, a person convicted of simple assault upon any of the persons listed in
subsection (14) of this section under the circumstances enumerated in subsection (14)
shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by
imprisonment for not more than five (5) years, or both.
(2)(a) A person is guilty of aggravated assault if he or she (i) attempts to cause serious
bodily injury to another, or causes such injury purposely, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human life; (ii) attempts
to cause or purposely or knowingly causes bodily injury to another with a deadly weapon
or other means likely to produce death or serious bodily harm; or (iii) causes any injury to
a child who is in the process of boarding or exiting a school bus in the course of a
violation of Section 63–3–615; and, upon conviction, he or she shall be punished by
imprisonment in the county jail for not more than one (1) year or sentenced to the custody
of the Department of Corrections for not more than twenty (20) years.
. . . .
(14) Assault upon any of the following listed persons is an aggravating circumstance for
charging under subsections (1)(b) and (2)(b) of this section:
(a) When acting within the scope of his or her duty, office or employment at the time of
the assault: a statewide elected official; law enforcement officer; fireman; emergency
medical personnel; health care provider; employees of a health care provider or health
care facility; social worker, family protection specialist or family protection worker
employed by the Department of Human Services or another agency; Division of Youth
Services personnel; any county or municipal jail officer; superintendent, principal, teacher
or other instructional personnel, school attendance officer or school bus driver; any
member of the Mississippi National Guard or United States Armed Forces; a judge of a
circuit, chancery, county, justice, municipal or youth court or a judge of the Court of
Appeals or a justice of the Supreme Court; district attorney or legal assistant to a district
attorney; county prosecutor or municipal prosecutor; court reporter employed by a court,
court administrator, clerk or deputy clerk of the court; public defender; or utility worker;
(b) A legislator while the Legislature is in regular or extraordinary session or while
otherwise acting within the scope of his or her duty, office or employment; or
(c) A person who is sixty-five (65) years of age or older or a person who is a vulnerable
person, as defined in Section 43–47–5.
1502 DISTURBING THE FAMILY OR PUBLIC PEACE
§ 97-35-9 Tumultuous or offensive conduct:
A person who wilfully disturbs the peace of any family or person by an explosion of
gunpowder or other explosive substance, or by loud or unusual noise, or by any
tumultuous or offensive conduct, shall be punished by fine or imprisonment, or both; the
fine not to exceed one hundred dollars, and the imprisonment not to exceed six months in
the county jail.
§ 97-35-11 Abusive language or indecent exposure:
Any person who enters the dwelling house of another, or the yard or curtilage thereof, or
upon the public highway, or any other place near such premises, and in the presence or
hearing of the family or the possessor or occupant thereof, or of any member thereof,
makes use of abusive, profane, vulgar or indecent language, or is guilty of any indecent
exposure of his or her person at such place, shall be punished for a misdemeanor. The act
of breast-feeding shall not constitute indecent exposure.
§ 97-35-13 Disturbance in public place:
Any person who shall enter any public place of business of any kind whatsoever, or upon
the premises of such public place of business, or any other public place whatsoever, in the
State of Mississippi, and while therein or thereon shall create a disturbance, or a breach of
the peace, in any way whatsoever, including, but not restricted to, loud and offensive talk,
the making of threats or attempting to intimidate, or any other conduct which causes a
disturbance or breach of the peace or threatened breach of the peace, shall be guilty of a
misdemeanor, and upon conviction thereof shall be fined not more than five hundred
dollars ($500.00) or imprisoned in jail not more than six (6) months, or both such fine
and imprisonment.
§ 97-35-15 Disturbance of the peace:
(1) Any person who disturbs the public peace, or the peace of others, by violent, or loud,
or insulting, or profane, or indecent, or offensive, or boisterous conduct or language, or
by intimidation, or seeking to intimidate any other person or persons, or by conduct either
calculated to provoke a breach of the peace, or by conduct which may lead to a breach of
the peace, or by any other act, shall be guilty of a misdemeanor, and upon conviction
thereof, shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or
by imprisonment in the county jail not more than six (6) months, or both.
(2) The act of breast-feeding shall not constitute a breach of the peace.
(3) The provisions of this section are supplementary to the provisions of any other statute
of this state.
See also Collins v. State, 223 So. 3d 817, 822 (Miss. Ct. App. 2017) (“[Section 97-35-15]
only prohibits disturbing the public peace or the peace of others . . . [it] does not prohibit
disturbing the peace of another.”).
1503 STALKING
§ 97-3-107 Elements of the offense:
(1)(a) Any person who purposefully engages in a course of conduct directed at a specific
person, or who makes a credible threat, and who knows or should know that the conduct
would cause a reasonable person to fear for his or her own safety, to fear for the safety of
another person, or to fear damage or destruction of his or her property, is guilty of the
crime of stalking.
§ 97-3-107 General penalties:
(1)(b) A person who is convicted of the crime of stalking under this section shall be
punished by imprisonment in the county jail for not more than one (1) year or by a fine of
not more than One Thousand Dollars ($1,000.00), or by both such fine and imprisonment.
§ 97-3-107 Penalties if there is a protective order:
(1)(c) Any person who is convicted of a violation of this section when there is in effect at
the time of the commission of the offense a valid temporary restraining order, ex parte
protective order, protective order after hearing, court approved consent agreement, or an
injunction issued by a municipal, justice, county, circuit or chancery court, federal or
tribal court or by a foreign court of competent jurisdiction prohibiting the behavior
described in this section against the same party, shall be punished by imprisonment in the
county jail for not more than one (1) year and by a fine of not more than One Thousand
Five Hundred Dollars ($1,500.00).
§ 97-3-107 Aggravated stalking:
(2)(a) A person who commits acts that would constitute the crime of stalking as defined
in this section is guilty of the crime of aggravated stalking if any of the following
circumstances exist:
(i) At least one (1) of the actions constituting the offense involved the use or display of a
deadly weapon with the intent to place the victim of the stalking in reasonable fear of
death or great bodily injury to self or a third person;
(ii) Within the past seven (7) years, the perpetrator has been previously convicted of
stalking or aggravated stalking under this section or a substantially similar law of another
state, political subdivision of another state, of the United States, or of a federally
recognized Indian tribe, whether against the same or another victim; or
(iii) At the time of the offense, the perpetrator was a person required to register as a sex
offender pursuant to state, federal, military or tribal law and the victim was under the age
of eighteen (18) years.
§ 97-3-107 Prohibiting contact with the victim:
(3) Upon conviction, the sentencing court shall consider issuance of an order prohibiting
the perpetrator from any contact with the victim. The duration of any order prohibiting
contact with the victim shall be based upon the seriousness of the facts before the court,
the probability of future violations, and the safety of the victim or another person.
§ 97-3-107 Ordering psychological counseling:
(4) Every conviction of stalking or aggravated stalking may require as a condition of any
suspended sentence or sentence of probation that the defendant, at his own expense,
submit to psychiatric or psychological counseling or other such treatment or behavioral
modification program deemed appropriate by the court.
§ 97-3-107 Prohibited defense to stalking:
(5) In any prosecution under this section, it shall not be a defense that the perpetrator was
not given actual notice that the course of conduct was unwanted or that the perpetrator did
not intend to cause the victim fear.
§ 97-3-107 Officers to utilize the Uniform Offense Report:
(6) When investigating allegations of a violation of this section, law enforcement officers
shall utilize the Uniform Offense Report prescribed by the Office of the Attorney General
in consultation with the sheriffs' and police chiefs' associations. However, failure of law
enforcement to utilize the Uniform Offense Report shall in no way invalidate the crime
charged under this section.
§ 97-3-107 Venue for stalking offenses:
(7) For purposes of venue, any violation of this section shall be considered to have been
committed in any county in which any single act was performed in furtherance of a
violation of this section. An electronic communication shall be deemed to have been
committed in any county from which the electronic communication is generated or in
which it is received.
§ 97-3-107 “Course of conduct” and “credible threat” defined:
(8) For the purposes of this section:
(a) “Course of conduct” means a pattern of conduct composed of a series of two (2) or
more acts over a period of time, however short, evidencing a continuity of purpose and
that would cause a reasonable person to fear for his or her own safety, to fear for the
safety of another person, or to fear damage or destruction of his or her property. Such acts
may include, but are not limited to, the following or any combination thereof, whether
done directly or indirectly: (i) following or confronting the other person in a public place
or on private property against the other person's will; (ii) contacting the other person by
telephone or mail, or by electronic mail or communication as defined in Section 97-45-1;
or (iii) threatening or causing harm to the other person or a third party.
(b) “Credible threat” means a verbal or written threat to cause harm to a specific person
or to cause damage to property that would cause a reasonable person to fear for the safety
of that person or damage to the property.
(c) “Reasonable person” means a reasonable person in the victim's circumstances.
§ 97-3-107 If person incarcerated at time of the threat:
(9) The incarceration of a person at the time the threat is made shall not be a bar to
prosecution under this section. Constitutionally protected activity is not prohibited by this
section.
1504 THREATENING LETTERS
§ 97-3-85 Elements of the offense:
If any person shall post, mail, deliver, or drop a threatening letter or notice to another,
whether such other be named or indicated therein or not, with intent to terrorize or to
intimidate such other, he shall, upon conviction, be punished by imprisonment in the
county jail not more than six months, or by fine not more than five hundred dollars, or
both.
1505 PUBLIC PROFANITY OR DRUNKENNESS
§ 97-29-47 Elements of the offense:
If any person shall profanely swear or curse, or use vulgar and indecent language, or be
drunk in any public place, in the presence of two (2) or more persons, he shall, on
conviction thereof, be fined not more than one hundred dollars ($100.00) or be
imprisoned in the county jail not more than thirty (30) days or both.
§ 41-30-19 Ordering alcohol treatment and rehabilitation:
The judge of any court, before whom appears an individual charged with a second or
subsequent offense of public intoxication, may, upon a plea of guilty or conviction
suspend execution of sentence and require the offender to participate in and complete a
prescribed course of alcohol abuse treatment and rehabilitation. The judge shall consult
with the division to determine the course of treatment best suited to the needs of the
convicted person. The convicted person while participating in the course of treatment
shall not be considered committed, civilly or criminally, as otherwise provided by law for
commitment to any institution; provided that no judge may require in-patient care for a
period in excess of ninety (90) days. Upon completion of the course of treatment
prescribed by the judge, the sentence shall not be executed. The convicted person, if
financially able, shall be responsible for defraying any cost of the prescribed course of
treatment.
1506 CHILD NEGLECT, DELINQUENCY OR ABUSE
§ 97-5-39 Misdemeanor offenses and penalties:
(1)(a) Except as otherwise provided in this section, any parent, guardian or other person
who intentionally, knowingly or recklessly commits any act or omits the performance of
any duty, which act or omission contributes to or tends to contribute to the neglect or
delinquency of any child or which act or omission results in the abuse of any child, as
defined in Section 43-21-105(m) of the Youth Court Law, or who knowingly aids any
child in escaping or absenting himself from the guardianship or custody of any person,
agency or institution, or knowingly harbors or conceals, or aids in harboring or
concealing, any child who has absented himself without permission from the
guardianship or custody of any person, agency or institution to which the child shall have
been committed by the youth court shall be guilty of a misdemeanor, and upon conviction
shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00), or by
imprisonment not to exceed one (1) year in jail, or by both such fine and imprisonment.
Felonious child abuse or child endangerment:
Miss. Code Ann. § 97-5-39(1)(d), -(e) and § 97-5-39(2) set forth acts that constitute
felonious child abuse, while Miss. Code Ann. § 97-5-39(4)(a), -(b) set forth acts that
constitute felonious child endangerment.
§ 97-5-39 Parent or guardian not exempt from prosecution:
(5) Nothing contained in this section shall prevent proceedings against the parent,
guardian or other person under any statute of this state or any municipal ordinance
defining any act as a crime or misdemeanor. Nothing in the provisions of this section
shall preclude any person from having a right to trial by jury when charged with having
violated the provisions of this section.
§ 97-5-39 Ordering treatment at an approved facility:
(6) After consultation with the Department of Human Services, a regional mental health
center or an appropriate professional person, a judge may suspend imposition or
execution of a sentence provided in subsections (1) and (2) of this section and in lieu
thereof require treatment over a specified period of time at any approved public or private
treatment facility. A person may be eligible for treatment in lieu of criminal penalties no
more than one (1) time.
§ 97-5-39 Admissibility of the physician’s testimony and report:
(7) In any proceeding resulting from a report made pursuant to Section 43-21-353 of the
Youth Court Law, the testimony of the physician making the report regarding the child's
injuries or condition or cause thereof shall not be excluded on the ground that the
physician's testimony violates the physician-patient privilege or similar privilege or rule
against disclosure. The physician's report shall not be considered as evidence unless
introduced as an exhibit to his testimony.
§ 97-5-39 Jurisdiction to try case:
(8) Any criminal prosecution arising from a violation of this section shall be tried in the
circuit, county, justice or municipal court having jurisdiction; provided, however, that
nothing herein shall abridge or dilute the contempt powers of the youth court.
1507 SECTION 99-15-26 LIMITATIONS; EXCEPTION
§ 99-15-26 Not applicable to crimes against the person:
(1)(b) In all misdemeanor criminal cases, other than crimes against the person, the justice
or municipal court shall be empowered, upon the entry of a plea of guilty by a criminal
defendant, to withhold acceptance of the plea and sentence thereon pending successful
completion of such conditions as may be imposed by the court pursuant to subsection (2)
of this section.
§ 99-15-26 Exception for domestic violence:
(1)(c) Notwithstanding paragraph (a) of this subsection (1), in all criminal cases charging
a misdemeanor of domestic violence as defined in Section 99-3-7(5), a circuit, county,
justice or municipal court shall be empowered, upon the entry of a plea of guilty by the
criminal defendant, to withhold acceptance of the plea and sentence thereon pending
successful completion of such conditions as may be imposed by the court pursuant to
subsection (2) of this section.
CHAPTER 16
SHOPLIFTING
1600 SHOPLIFTING
Elements of the offense
Prima facie evidence
Evidence of stated price or ownership
Who may testify on stated price or ownership
Misdemeanor penalties
When a third shoplifting conviction a felony
Shoplifting merchandise over $1000.00 a felony
Determining number of prior shoplifting convictions
Determining the gravity of the offense
Detaining a suspected shoplifter
1601 THEFT DETECTION DEVICES
Theft detection device defined
Offenses pertaining to theft detection devices
Penalties
Unlawful removal of a theft detection device
Anti-shoplifting or inventory control devices
1602 AIDING AND ABETTING SHOPLIFTING BY MINOR
Elements of offense
Penalties
Ordering restitution
1603 EMPLOYEE'S UNAUTHORIZED GIVING AWAY OF MERCHANT'S GOODS
Blank page
1600 SHOPLIFTING
§ 97-23-93 Elements of the offense:
(1) Any person who shall willfully and unlawfully take possession of any merchandise
owned or held by and offered or displayed for sale by any merchant, store or other
mercantile establishment with the intention and purpose of converting such merchandise
to his own use without paying the merchant's stated price therefor shall be guilty of the
crime of shoplifting and, upon conviction, shall be punished as is provided in this section.
§ 97-23-93 Prima facie evidence:
(2) The requisite intention to convert merchandise without paying the merchant's stated
price for the merchandise is presumed, and shall be prima facie evidence thereof, when
such person, alone or in concert with another person, willfully:
(a) Conceals the unpurchased merchandise;
(b) Removes or causes the removal of unpurchased merchandise from a store or other
mercantile establishment;
(c) Alters, transfers or removes any price-marking, any other marking which aids in
determining value affixed to the unpurchased merchandise, or any tag or device used in
electronic surveillance of unpurchased merchandise;
(d) Transfers the unpurchased merchandise from one container to another; or
(e) Causes the cash register or other sales recording device to reflect less than the
merchant's stated price for the unpurchased merchandise.
See also Newson v. State, 107 So. 3d 1079, 1082 (Miss. Ct. App. 2013) (“[T]he crime [of
shoplifting] is completed at the moment that the defendant takes possession of the
merchandise with the intention of taking the merchandise without paying for it.);
Williams v. Jitney Jungle, 910 So. 2d 39, 42 (Miss. Ct. App. 2005) (“The shoplifting
statute clearly contemplates the criminal liability of persons acting ‘alone or in concert
with another person’ and specifically provides that the intent to shoplift is presumed
when merchandise is either concealed, removed, or caused to be removed.”).
§ 97-23-93 Evidence of stated price or ownership:
(3) Evidence of stated price or ownership of merchandise may include, but is not limited
to:
(a) The actual merchandise or the container which held the merchandise alleged to have
been shoplifted; or
(b) The content of the price tag or marking from such merchandise; or
(c) Properly identified photographs of such merchandise.
§ 97-23-93 Who may testify on stated price or ownership:
(4) Any merchant or his agent or employee may testify at a trial as to the stated price or
ownership of merchandise.
§ 97-23-93 Misdemeanor penalties:
(5) A person convicted of shoplifting merchandise for which the merchant's stated price is
less than or equal to One Thousand Dollars ($1,000.00) shall be punished as follows:
(a) Upon a first shoplifting conviction the defendant shall be guilty of a misdemeanor and
fined not more than One Thousand Dollars ($1,000.00), or punished by imprisonment in
the county jail not to exceed six (6) months, or by both if the court finds substantial and
compelling reasons why the offender cannot be safely and effectively supervised in the
community, is not amenable to community-based treatment, or poses a significant risk to
public safety. If such a finding is not made, the court shall suspend the sentence of
imprisonment and impose a period of probation not exceeding one (1) year or a fine of
not more than One Thousand Dollars ($1,000.00).
(b) Upon a second shoplifting conviction the defendant shall be guilty of a misdemeanor
and fined not more than One Thousand Dollars ($1,000.00) or punished by imprisonment
in the county jail for a term not to exceed six (6) months, or by both if the court finds
substantial and compelling reasons why the offender cannot be safely and effectively
supervised in the community, is not amenable to community-based treatment, or poses a
significant risk to public safety. If such a finding is not made, the court shall suspend the
sentence of imprisonment and impose a period of probation not exceeding one (1) year or
a fine of not more than One Thousand Dollars ($1,000.00), or both.
§ 97-23-93 When a third shoplifting conviction a felony:
(6) Upon a third or subsequent shoplifting conviction where the value of the shoplifted
merchandise is not less than Five Hundred Dollars ($500.00) or greater than One
Thousand Dollars ($1,000.00), the defendant shall be guilty of a felony and fined not
more than One Thousand Dollars ($1,000.00), or imprisoned for a term not exceeding
three (3) years, or by both such fine and imprisonment.
§ 97-23-93 Shoplifting merchandise over $1000.00 a felony:
(7) A person convicted of shoplifting merchandise for which the merchant's stated price
exceeds One Thousand Dollars ($1,000.00) shall be guilty of a felony and, upon
conviction, punished as provided in Section 97–17–41 for the offense of grand larceny.
§ 97-23-93 Determining number of prior shoplifting convictions:
(8) In determining the number of prior shoplifting convictions for purposes of imposing
punishment under this section, the court shall disregard all such convictions occurring
more than seven (7) years prior to the shoplifting offense in question.
§ 97-23-93 Determining the gravity of the offense:
(9) For the purpose of determining the gravity of the offense under subsection (7) of this
section, the prosecutor may aggregate the value of merchandise shoplifted from three (3)
or more separate mercantile establishments within the same legal jurisdiction over a
period of thirty (30) or fewer days.
§ 97-23-95 Detaining a suspected shoplifter:
If any person shall commit or attempt to commit the offense of shoplifting, or if any
person shall wilfully conceal upon his person or otherwise any unpurchased goods, wares
or merchandise held or owned by any store or mercantile establishment, the merchant or
any employee thereof or any peace or police officer, acting in good faith and upon
probable cause based upon reasonable grounds therefor, may question such person in a
reasonable manner for the purpose of ascertaining whether or not such person is guilty of
shoplifting as defined herein. Such questioning of a person by a merchant, merchant's
employee or peace or police officer shall not render such merchant, merchant's employee
or peace or police officer civilly liable for slander, false arrest, false imprisonment,
malicious prosecution, unlawful detention or otherwise in any case where such merchant,
merchant's employee or peace or police officer acts in good faith and upon reasonable
grounds to believe that the person questioned is committing or attempting to commit the
crime of shoplifting.
See also Earnest v. Wal-Mart Stores, Inc., 2000 WL 33907695 (N.D. Miss.) (“Wal-Mart
can gain no shelter from the qualified privilege of Miss.Code Ann. § 97-23-95, which
protects a merchant from slander and false imprisonment claims when it detains and
questions a suspected shoplifter. To gain protection under this statute, the merchant not
only must show good faith and reasonable grounds for believing that the customer is
shoplifting but also present evidence that the detention and questioning of the customer
were done in a reasonable manner.”).
1601 THEFT DETECTION DEVICES
§ 97-23-93.1 Theft detection device defined:
(1) As used in this section:
(a) “Theft detection device” means any tag or other device that is used to prevent or
detect theft and that is attached to merchandise held for resale by a merchant or to
property of a merchant.
(b) “Theft detection device remover” means any tool or device specifically designed or
manufactured to be used to remove a theft detection device from merchandise held for
resale by a merchant or property of a merchant.
(c) “Theft detection shielding device” means any laminated or coated bag or device
designed to shield merchandise held for resale by a merchant or property of a merchant
from being detected by an electronic or magnetic theft alarm sensor.
§ 97-23-93.1 Offenses pertaining to theft detection devices:
(2)(a) A person commits unlawful distribution of a theft detection shielding device when
he or she knowingly manufactures, sells, offers to sell or distributes any theft detection
shielding device.
(b) A person commits unlawful possession of a theft detection shielding device when he
or she knowingly possesses any theft detection shielding device with the intent to commit
larceny or shoplifting.
(c) A person commits unlawful possession of a theft detection device remover when he or
she knowingly possesses any theft detection device remover with the intent to use such
tool to remove any theft detection device from any merchandise without the permission of
the merchant or person owning or holding said merchandise.
(d) A person commits unlawful use of a theft detection shielding device or a theft
detection device remover when he or she uses or attempts to use either device while
committing a violation of Section 97-23-93, Mississippi Code of 1972.
§ 97-23-93.1 Penalties:
(2)(e) Any person convicted of violating this subsection (2) is guilty of a misdemeanor,
and upon conviction thereof, shall be imprisoned for not less than thirty (30) days nor
more than one (1) year, and fined not less than Two Hundred Fifty Dollars ($250.00), nor
more than One Thousand Dollars ($1,000.00).
§ 97-23-93.1 Unlawful removal of a theft detection device:
(3)(a) A person commits unlawful removal of a theft detection device when he or she
intentionally removes any theft detection device from merchandise prior to purchase
without the permission of the merchant or person owning or holding said merchandise.
(b) Any person convicted of violating this subsection (3) is guilty of a misdemeanor, and
upon conviction thereof, shall be fined not less than One Hundred Dollars ($100.00) nor
more than Five Hundred Dollars ($500.00), and such fine shall not be suspended, or the
person shall be imprisoned not more than sixty (60) days, or both.
§ 97-23-93.1 Anti-shoplifting or inventory control devices:
(4)(a) The activation of an anti-shoplifting or inventory control device as a result of a
person exiting the establishment or a protected area within the establishment shall
constitute reasonable cause for the detention of the person so exiting by the owner or
operator of the establishment or by an agent or employee of the owner or operator,
provided notice has been posted to advise patrons that such a device is being utilized.
Each such detention shall be made only in a reasonable manner and only for a reasonable
period of time sufficient for any inquiry into the circumstances surrounding the activation
of the device or for the recovery of goods.
(b) The taking into custody and detention by a law enforcement officer, merchant or
merchant's employee, if in compliance with the requirements of this section, does not
render such law enforcement officer, merchant or merchant's employee criminally or
civilly liable for false arrest, false imprisonment, unlawful detention, malicious
prosecution, intentional infliction of emotional distress or defamation.
1602 AIDING AND ABETTING SHOPLIFTING BY MINOR
§ 97-23-94 Elements of offense:
(1) In addition to any other offense and penalty provided by law, it shall be unlawful for
any person eighteen (18) years of age or older to encourage, aid or abet any person under
the age of eighteen (18) years to commit the crime of shoplifting as defined in Section
97-23-93.
See also Miss. Code Ann. § 97-23-94.1 (“Any person aged eighteen (18) years or older
who encourages, aids or abets any person under the age of eighteen (18) years to violate
Section 97-23-93 shall be punished as provided in Section 97-23-94 and as otherwise
provided by law.”).
§ 97-23-94 Penalties:
(1) . . . In addition to any other penalty provided by law, any person who violates this
section shall be punished as follows:
(a) Upon a first conviction the defendant shall be guilty of a misdemeanor and fined not
more than Seven Hundred Fifty Dollars ($750.00), or punished by imprisonment not to
exceed thirty (30) days, or by both such fine and imprisonment.
(b) Upon a second conviction the defendant shall be guilty of a misdemeanor and fined
not more than One Thousand Dollars ($1,000.00) or punished by imprisonment not to
exceed ninety (90) days, or by both such fine and imprisonment.
(c) Upon a third or subsequent conviction the defendant shall be guilty of a felony and
fined One Thousand Dollars ($1,000.00), or imprisoned for a term not exceeding three (3)
years, or by both such fine and imprisonment.
§ 97-23-94 Ordering restitution:
(2) In addition to the penalties prescribed in subsection (1) of this section, the court is
authorized to require the defendant to make restitution to the owner of the property where
shoplifting occurred in an amount equal to twice the value of such property.
1603 EMPLOYEE'S UNAUTHORIZED GIVING AWAY OF MERCHANT'S GOODS
§ 97-23-99 Penalty if merchandise is less than $250.00:
It shall be unlawful for any employee of a merchant engaged in the sale of goods to the
public to willfully give away any merchandise of a value of less than Two Hundred Fifty
Dollars ($250.00) intended for sale without receiving full payment for such merchandise
or to give away any merchandise without the specific authorization of the merchant. Any
person violating the provisions of this section shall be guilty of a misdemeanor and upon
conviction shall be fined not more than One Thousand Dollars ($1,000.00) or imprisoned
for not more than one (1) year or both.
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CHAPTER 17
BAD CHECKS
1700 PROVING A BAD CHECK OFFENSE
Issuing a bad check
Closing an account without leaving sufficient funds
Each violation a separate offense
Presumption of fraudulent intent
Exceptions to notice requirement
Prima facie evidence of identity
Statement of reason for dishonor
1701 PRESENTING A COMPLAINT TO THE DISTRICT ATTORNEY
District attorney to evaluate the complaint
Withdrawing the complaint for good cause
Issuing an arrest warrant
Deferred prosecution
Restitution agreement
Failing to comply with service agreement
Restitution defined
If original check or draft is unavailable
1702 PENALTIES UPON CONVICTION
Misdemeanor penalties
Worthless check to satisfy a pre-existing debt
Restitution
Court to impose additional fee
Clerk to deposit fees with State Treasurer
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1700 PROVING A BAD CHECK OFFENSE
§ 97-19-55 Issuing a bad check:
(1) It shall be unlawful for any person with fraudulent intent:
(a) To make, draw, issue, utter, deliver, or authorize any check, draft, electronically
converted check, or electronic commercial debit to obtain money, delivery of other
valuable property, services, the use of property or credit extended by any licensed gaming
establishment drawn on any real or fictitious bank, corporation, firm or person, knowing
at the time of making, drawing, issuing, uttering, delivering or authorizing said check,
draft order, electronically converted check, or electronic commercial debit that the maker,
drawer or payor has not sufficient funds in or on deposit with such bank, corporation,
firm or person for the payment of such check, draft, order, electronically converted check,
or electronic commercial debit in full, and all other checks, drafts or orders, electronic
fund transfers upon such funds then outstanding;
§ 97-19-55 Closing an account without leaving sufficient funds:
(1)(b) It shall be unlawful for any person with fraudulent intent: . . .
To close an account without leaving sufficient funds to cover all outstanding checks,
electronically converted check, or electronic commercial debit written or authorized on
such account.
§ 97-19-65 Each violation a separate offense:
Each making, drawing, issuing, uttering or delivering of any such check, draft or order as
aforesaid shall constitute a separate offense.
§ 97-19-57 Presumption of fraudulent intent:
(1) As against the maker, drawer or payor thereof, the making, drawing, issuing, uttering,
delivering, or initiation of a check, draft, order, electronically converted check, or
electronic commercial debit payment of which is refused by the drawee, shall be prima
facie evidence and create a presumption of intent to defraud and of knowledge of
insufficient funds in, or on deposit with, such bank, corporation, firm or person, provided
such maker, drawer or payor shall not have paid the holder or payee thereof the amount
due thereon, together with a service charge of Forty Dollars ($40.00), within fifteen (15)
days after receiving notice that such check, draft, order, electronically converted check, or
electronic commercial debit has not been paid by the drawee or payor's bank.
§ 97-19-61 Exceptions to notice requirement:
Such notice as is provided for in Section 97-19-57 is dispensed with: (a) in the event the
situs of the drawee is not in the State of Mississippi; (b) if the drawer or payor is not a
resident of the State of Mississippi or has left the State of Mississippi at the time such
check, draft, order, electronically converted check, or electronic commercial debit is
dishonored; or (c) if the drawer or payor of such check, draft, order, electronically
converted check, or electronic commercial debit did not have an account with the drawee
or payor 183 bank of such check, draft, order, electronically converted check, or
electronic commercial debit at the time the same was issued or dishonored, or payment of
the same is denied because the account was closed at the time the check, draft, order, or
electronically converted check, or electronic commercial debit was issued or dishonored.
§ 97-19-62 Prima facie evidence of identity:
(1) In any prosecution or action under the provisions of Section 97-19-55, a check, draft,
order, or electronically converted check for which the information required in subsections
(2) and (3) of this section is available at the time of issuance, utterance or delivery shall
constitute prima facie evidence of the identity of the party issuing, uttering or delivering
the check, draft, order, or electronically converted check and that such person was a party
authorized to draw upon the named account.
(2) To establish prima facie evidence of the identity of the party presenting such check,
draft, order, or electronically converted check, the following information regarding such
identity shall be requested by the party receiving such instrument: The presenter's name,
residence address and home phone number. Such information may be provided in the
following manner:
(a) The information may be recorded upon the check, draft or order, or electronically
converted check itself; or
(b) The number of a check-cashing identification card issued by the receiving party may
be recorded on the check, draft, order, or electronically converted check. Such
check-cashing identification card shall be issued only after the information required in
this subsection has been placed on file by the receiving party.
(3) In addition to the information required in subsection (2) of this section, the party
receiving the check, draft, order, or electronically converted check shall witness the
signature or endorsement of the party presenting such instrument and, as evidence of
such, the receiving party shall initial the instrument.
(4) In any prosecution or action under the provisions of Section 97-19-55 for an electronic
commercial debit, the following shall constitute prima facie evidence that the payee was a
party authorized to draw upon the named account for the electronic commercial debit: (i)
the existence of an enforceable written agreement between the payor and the payee
whereby the payee agrees to provide a good or service to the payor conditioned and in
reliance upon the payor's provision of its account and bank information and agreement to
pay for the good or service through an electronic commercial debit, and (ii) an invoice,
bill of lading, or other business record evidencing the delivery of the good or service by
the payee to the payor.
§ 97-19-63 Statement of reason for dishonor:
(1) It shall be the duty of the drawee of any check, draft or other order for the payment of
money, before refusing to pay the same to the holder thereof upon presentation, to cause
to be written, printed, or stamped in plain language thereon or attached thereto, the reason
for drawee's dishonor or refusal of the same. In all prosecutions under sections 97-19-55
to 97-19-69, the introduction in evidence of any unpaid and dishonored check, draft or
other order for the payment of money, having the drawee's refusal to pay stamped or
written thereon or attached thereto, with the reason therefor as aforesaid, shall be prima
facie evidence of the making or uttering of said check, draft or other order for the
payment of money and the dishonor thereof, and that the same was properly dishonored
for the reasons written, stamped or attached by the drawee on such dishonored check,
draft or other such order for the payment of money.
(2) It shall be the duty of the drawee or the payor's bank in an electronically converted
check or electronic commercial debit transaction, before refusing to pay the same to the
payee's bank and the payee thereof upon initiation of such a transaction through the ACH
Network, to provide such notice for the reason for dishonor or refusal of the same by the
payor's bank as would be required by the NACHA Operating Rules & Guidelines for the
reasons of insufficient funds, account closed, no account or unable to locate account,
payment stopped, or uncollected funds. In all prosecutions under Sections 97-19-55
through 97-19-69, the introduction in evidence of any such notice of an unpaid and
dishonored electronically converted check or electronic commercial debit properly given
under the NACHA rules with the reason of insufficient funds, account closed, no account
or unable to locate account, payment stopped, or uncollected funds shall be prima facie
evidence of the dishonor of said electronically converted check or electronic commercial
debit for the reasons recorded and noticed pursuant to the NACHA Operating Rules &
Guidelines.
(3) In the case of an electronically converted check, the introduction into evidence of a
check payable to the payee and signed by the drawer to authorize the transaction is prima
facie evidence of the making or uttering of said electronically converted check for the
payment of money.
1701 PRESENTING A COMPLAINT TO THE DISTRICT ATTORNEY
§ 97-19-75 District attorney to evaluate the complaint
(1) The holder of any check, draft or order for the payment of money which has been
made, drawn, issued, uttered or delivered in violation of Section 97-19-55, Mississippi
Code of 1972, may, after complying with the provisions of Section 97-19-57, Mississippi
Code of 1972, present a complaint to the district attorney. The complaint shall be
accompanied by the original check, draft or order upon which the complaint is filed and
the return receipt showing mailing of notice under Section 97-19-57, Mississippi Code of
1972. Not more than one (1) check, draft or order shall be included within a single
complaint. Upon receipt of such complaint, the district attorney shall evaluate the
complaint to determine whether or not the complaint is appropriate to be processed by the
district attorney.
§ 97-19-75 Withdrawing the complaint for good cause:
(2) If, after filing a complaint with the district attorney, the complainant wishes to
withdraw the complaint for good cause, the complainant shall pay a fee of Thirty Dollars
($30.00) to the office of the district attorney for processing such complaint. Upon
payment of the processing fee and withdrawal of the complaint, the district attorney shall
return the original check, draft or order to the complainant.
§ 97-19-75 Issuing an arrest warrant:
(3) After approval of the complaint by the district attorney, a warrant may be issued by
any judicial officer authorized by law to issue arrest warrants, and the warrant may be
held by the district attorney. After issuance of a warrant or upon approval of a complaint
by the district attorney, the district attorney shall issue a notice to the individual charged
in the complaint, informing him that a warrant has been issued for his arrest or that a
complaint has been received by the district attorney and that he may be eligible for
deferred prosecution for a violation of Section 97-19-55, Mississippi Code of 1972, by
voluntarily surrendering himself to the district attorney within ten (10) days, Saturdays,
Sundays and legal holidays excepted, from receipt of the notice. Such notice shall be sent
by United States mail.
§ 97-19-75 Deferred prosecution:
(4)(a) If the check is not a casino marker, and the accused voluntarily surrenders himself
within the time period as provided by subsection (3) of this section, the accused shall be
presented with the complaint and/or warrant and prosecution of the accused may be
deferred upon payment by the accused of a service charge in the amount of Forty Dollars
($40.00) to the district attorney and by execution of a restitution agreement as hereinafter
provided.
§ 97-19-75 Restitution agreement:
(6) After an accused has voluntarily surrendered himself and paid the service charge as
provided by subsection (4) of this section, the district attorney may enter into a restitution
agreement with the accused prescribing the terms by which the accused shall satisfy
restitution to the district attorney on behalf of the complainant. The terms of such
agreement shall be determined on a case-by-case basis by the district attorney, but the
duration of any such agreement shall be no longer than a period of six (6) months. No
interest shall be charged or collected on restitution monies. The restitution agreement
shall be signed by the accused and approved by the district attorney before it is effective.
If the accused does not honor each term of the restitution agreement signed by him, the
accused may be proceeded against by prosecution under the provisions of Sections
97-19-55 through 97-19-69, Mississippi Code of 1972, and as provided by Section
97-19-79. If the accused makes restitution and pays all charges set out by statute or if the
accused enters into a restitution agreement as set out above and honors all terms of such
agreement, then if requested, the original check may be returned to the accused and a
photocopy retained in the check file.
§ 97-19-79 Failing to comply with service agreement:
If, after receiving notice as provided for by subsection (3) of Section 97-19-75, the
accused fails to timely surrender himself to the district attorney as prescribed in the notice
or, if having timely surrendered himself, the accused fails to pay the service charge
prescribed by subsection (4) of Section 97-19-75 and/or fails to execute or comply with
the terms of any restitution agreement executed in accordance with the provisions of
Section 97-19-75, then the district attorney shall file the complaint, along with the arrest
warrant, if any, which the district attorney may be holding against the accused, with the
municipal court, justice court, county court or circuit court in his district having
jurisdiction, and prosecution against the accused may be commenced in accordance with
the provisions of Sections 97-19-55 through 97-19-69, Mississippi Code of 1972, or as
otherwise provided by law. If such prosecution is commenced, the court may assess the
defendant the service charge payable to the district attorney as provided in Section
97-19-75(4), Mississippi Code of 1972.
§ 97-19-75 Restitution defined:
(5) For the purposes of Sections 97-19-73 through 97-19-81, the term “restitution” shall
mean and be defined as the face amount of any check, draft or order for the payment of
money made, drawn, issued, uttered or delivered in violation of Section 97-19-55,
Mississippi Code of 1972, plus a service charge payable to the complainant in the amount
of Thirty Dollars ($30.00).
§ 97-19-75 If original check or draft is unavailable:
(7) If the holder of any check, draft or order for the payment of money presents to the
district attorney satisfactory evidence that the original check, draft or order is unavailable
and satisfactory evidence of the check, draft or order is presented in the form of bank
records or a photographic copy of the instrument, whether from microfilm or otherwise,
then the procedures provided for in this section may be followed in the absence of the
original check, draft or order.
See also Moody v. State, 716 So. 2d 562, 565 (Miss. 1998) (“[A]n indigent’s equal
protections rights are violated when all potential defendants are offered one way to avoid
prosecution and that one way is to pay a set fine, and there is no determination as to an
individual’s ability to pay such fine.”).
1702 PENALTIES UPON CONVICTION
§ 97-19-67 Misdemeanor penalties:
(1) Except as may be otherwise provided by subsection (2) of this section, any person
violating Section 97-19-55, upon conviction, shall be punished as follows:
(a) For the first offense of violating said section, where the check, draft, order,
electronically converted check, or electronic commercial debit involved be less than One
Hundred Dollars ($100.00), the person committing such offense shall be guilty of a
misdemeanor and, upon conviction, shall be punished by a fine of not less than
Twenty-five Dollars ($25.00), nor more than Five Hundred Dollars ($500.00), or by
imprisonment in the county jail for a term of not less than five (5) days nor more than six
(6) months, or by both such fine and imprisonment, in the discretion of the court;
(b) Upon commission of a second offense of violating said section, where the check,
draft, order, electronically converted check, or electronic commercial debit involved is
less than One Hundred Dollars ($100.00), the person committing such offense shall be
guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than
Fifty Dollars ($50.00) nor more than One Thousand Dollars ($1,000.00), or by
imprisonment in the county jail for a term of not less than thirty (30) days nor more than
one (1) year, or by both such fine and imprisonment, in the discretion of the court;
See Miss. Code Ann. § 97-19-67(1)(c) and (d) for felony penalties.
§ 97-19-67 Worthless check to satisfy a pre-existing debt:
(2) Where the conviction was based on a worthless check, draft, order, or electronically
converted check given for the purpose of satisfying a preexisting debt or making a
payment or payments on a past-due account or accounts, no imprisonment shall be
ordered as punishment, but the court may order the convicted person to pay a fine of up to
the applicable amounts prescribed in subsection (1)(a)(b) and (d) of this section;
provided, however, that an electronic commercial debit initiated following the delivery of
goods or services that were provided in reliance upon the agreement for payment through
that means shall not be considered payment for a preexisting debt or a past-due account or
accounts for the purposes of this section.
§ 97-19-67 Restitution:
(3) In addition to or in lieu of any penalty imposed under the provisions of subsection (1)
or subsection (2) of this section, the court may, in its discretion, order any person
convicted of violating Section 97-19-55 to make restitution in accordance with the
provisions of Sections 99-37-1 through 99-37-23 to the holder or payee of any check,
draft, order, electronically converted check, or electronic commercial debit for which
payment has been refused.
§ 97-19-67 Court to impose additional fee:
(4) Upon conviction of any person for a violation of Section 97-19-55, when the
prosecution of such person was commenced by the filing of a complaint with the court by
the district attorney under the provisions of Section 97-19-79, the court shall, in addition
to any other fine, fee, cost or penalty which may be imposed under this section or as
otherwise provided by law, and in addition to any order as the court may enter under
subsection (3) of this section requiring the offender to pay restitution under Sections
99-37-1 through 99-37-23, impose a fee in the amount up to eighty-five percent (85%) of
the face amount of the check, draft, order, electronically converted check, or electronic
commercial debit for which the offender was convicted of drawing, making, issuing,
uttering, delivering or authorizing in violation of Section 97-19-55.
§ 97-19-67 Clerk to deposit fees with State Treasurer:
(5) It shall be the duty of the clerk or judicial officer of the court collecting the fees
imposed under subsection (4) of this section to monthly deposit all such fees so collected
with the State Treasurer, either directly or by other appropriate procedures, for deposit in
the special fund of the State Treasury created under Section 99-19-32, known as the
“Criminal Justice Fund.”
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CHAPTER 18
DRUG OFFENSES
1800 UNIFORM CONTROLLED SUBSTANCES LAW
1801 DEFINITIONS
1802 PROHIBITED ACTS AND PENALTIES
1803 SUSPENSION FOR CERTAIN CONVICTIONS
1804 PROVING POSSESSION OF CONTROLLED SUBSTANCES
1805 ACTUAL POSSESSION
1806 CONSTRUCTIVE POSSESSION
Used by courts when actual possession cannot be proven
How constructive possession is shown
Rebuttable presumption as to the owner of premises or vehicle
If defendant does not own premises or vehicle where drugs are recovered
1807 JOINT OR INDIVIDUAL POSSESSION
1808 PROVEN BY DIRECT OR CIRCUMSTANTIAL EVIDENCE
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1800 UNIFORM CONTROLLED SUBSTANCES LAW
The “Uniform Controlled Substances Law” (i.e., Sections 41-29-101 through -187) makes
it a crime to knowingly or intentionally possess any controlled substance unless lawfully
prescribed or otherwise allowed by law. Penalties for unlawful possession of controlled
substances depend on the classification of the controlled substance and the dosage unit
(i.e., tablet, capsule, milliliter, stamp, square, dot or microdot) or weight (i.e., grams).
1801 DEFINITIONS
§ 41-29-105
The following words and phrases, as used in this article, shall have the following
meanings, unless the context otherwise requires:
(a) “Administer” means the direct application of a controlled substance, whether by
injection, inhalation, ingestion or any other means, to the body of a patient or research
subject by:
(i) A practitioner (or, in his presence, by his authorized agent); or
(ii) The patient or research subject at the direction and in the presence of the
practitioner.
(b) “Agent” means an authorized person who acts on behalf of or at the direction of a
manufacturer, distributor or dispenser. Such word does not include a common or contract
carrier, public warehouseman or employee of the carrier or warehouseman. This
definition shall not be applied to the term “agent” when such term clearly designates a
member or officer of the Bureau of Narcotics or other law enforcement organization.
(c) “Board” means the Mississippi State Board of Medical Licensure.
(d) “Bureau” means the Mississippi Bureau of Narcotics. However, where the title
“Bureau of Drug Enforcement” occurs, that term shall also refer to the Mississippi
Bureau of Narcotics.
(e) “Commissioner” means the Commissioner of the Department of Public Safety.
(f) “Controlled substance” means a drug, substance or immediate precursor in Schedules I
through V of Sections 41-29-113 through 41-29-121.
(g) “Counterfeit substance” means a controlled substance which, or the container or
labeling of which, without authorization, bears the trademark, trade name, or other
identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer,
distributor or dispenser other than the person who in fact manufactured, distributed or
dispensed the substance.
(h) “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one
person to another of a controlled substance, whether or not there is an agency
relationship.
(i) “Director” means the Director of the Bureau of Narcotics.
(j) “Dispense” means to deliver a controlled substance to an ultimate user or research
subject by or pursuant to the lawful order of a practitioner, including the prescribing,
administering, packaging, labeling or compounding necessary to prepare the substance for
that delivery.
(k) “Dispenser” means a practitioner who dispenses.
(l) “Distribute” means to deliver other than by administering or dispensing a controlled
substance.
(m) “Distributor” means a person who distributes.
(n) “Drug” means
(i) a substance recognized as a drug in the official United States Pharmacopoeia,
official Homeopathic Pharmacopoeia of the United States, or official National
Formulary, or any supplement to any of them;
(ii) a substance intended for use in the diagnosis, cure, mitigation, treatment, or
prevention of disease in man or animals;
(iii) a substance (other than food) intended to affect the structure or any function
of the body of man or animals; and
(iv) a substance intended for use as a component of any article specified in this
paragraph. Such word does not include devices or their components, parts, or
accessories.
(o) “Hashish” means the resin extracted from any part of the plants of the genus Cannabis
and all species thereof or any preparation, mixture or derivative made from or with that
resin.
(p) “Immediate precursor” means a substance which the board has found to be and by rule
designates as being the principal compound commonly used or produced primarily for
use, and which is an immediate chemical intermediary used or likely to be used in the
manufacture of a controlled substance, the control of which is necessary to prevent,
curtail, or limit manufacture.
(q) “Manufacture” means the production, preparation, propagation, compounding,
conversion or processing of a controlled substance, either directly or indirectly, by
extraction from substances of natural origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical synthesis, and includes any
packaging or repackaging of the substance or labeling or relabeling of its container. The
term “manufacture” does not include the preparation, compounding, packaging or
labeling of a controlled substance in conformity with applicable state and local law:
(i) By a practitioner as an incident to his administering or dispensing of a
controlled substance in the course of his professional practice; or
(ii) By a practitioner, or by his authorized agent under his supervision, for the
purpose of, or as an incident to, research, teaching or chemical analysis and not
for sale.
(r) “Marijuana” means all parts of the plant of the genus Cannabis and all species thereof,
whether growing or not, the seeds thereof, and every compound, manufacture, salt,
derivative, mixture or preparation of the plant or its seeds, excluding hashish.
The term “marijuana” does not include “hemp” as defined in and regulated by Sections
69-25-201 through 69-25-221.
(s) “Narcotic drug” means any of the following, whether produced directly or indirectly
by extraction from substances of vegetable origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical synthesis:
(i) Opium and opiate, and any salt, compound, derivative or preparation of opium
or opiate;
(ii) Any salt, compound, isomer, derivative or preparation thereof which is
chemically equivalent or identical with any of the substances referred to in
subparagraph (i), but not including the isoquinoline alkaloids of opium;
(iii) Opium poppy and poppy straw; and
(iv) Cocaine, coca leaves and any salt, compound, derivative or preparation of
cocaine, coca leaves, and any salt, compound, isomer, derivative or preparation
thereof which is chemically equivalent or identical with any of these substances,
but not including decocainized coca leaves or extractions of coca leaves which do
not contain cocaine or ecgonine.
(t) “Opiate” means any substance having an addiction-forming or
addiction-sustaining liability similar to morphine or being capable of conversion
into a drug having addiction-forming or addiction-sustaining liability. It does not
include, unless specifically designated as controlled under Section 41-29-111, the
dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts
(dextromethorphan). Such word does include its racemic and levorotatory forms.
(u) “Opium poppy” means the plant of the species Papaver somniferum L., except its
seeds.
(v)(i) “Paraphernalia” means all equipment, products and materials of any kind which are
used, intended for use, or designed for use, in planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing, processing, preparing,
testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting,
ingesting, inhaling or otherwise introducing into the human body a controlled substance
in violation of the Uniform Controlled Substances Law. It includes, but is not limited to:
1. Kits used, intended for use, or designed for use in planting, propagating,
cultivating, growing or harvesting of any species of plant which is a controlled
substance or from which a controlled substance can be derived;
2. Kits used, intended for use, or designed for use in manufacturing,
compounding, converting, producing, processing or preparing controlled
substances;
3. Isomerization devices used, intended for use or designed for use in increasing
the potency of any species of plant which is a controlled substance;
4. Testing equipment used, intended for use, or designed for use in identifying or
in analyzing the strength, effectiveness or purity of controlled substances;
5. Scales and balances used, intended for use or designed for use in weighing or
measuring controlled substances;
6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite,
dextrose and lactose, used, intended for use or designed for use in cutting
controlled substances;
7. Separation gins and sifters used, intended for use or designed for use in
removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;
8. Blenders, bowls, containers, spoons and mixing devices used, intended for use
or designed for use in compounding controlled substances;
9. Capsules, balloons, envelopes and other containers used, intended for use or
designed for use in packaging small quantities of controlled substances;
10. Containers and other objects used, intended for use or designed for use in
storing or concealing controlled substances;
11. Hypodermic syringes, needles and other objects used, intended for use or
designed for use in parenterally injecting controlled substances into the human
body;
12. Objects used, intended for use or designed for use in ingesting, inhaling or
otherwise introducing marijuana, cocaine, hashish or hashish oil into the human
body, such as:
a. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or
without screens, permanent screens, hashish heads or punctured metal
bowls;
b. Water pipes;
c. Carburetion tubes and devices;
d. Smoking and carburetion masks;
e. Roach clips, meaning objects used to hold burning material, such as a
marijuana cigarette, that has become too small or too short to be held in
the hand;.
f. Miniature cocaine spoons and cocaine vials;
g. Chamber pipes;
h. Carburetor pipes;
i. Electric pipes;
j. Air-driven pipes;
k. Chillums;
l. Bongs; and
m. Ice pipes or chillers.
(ii) In determining whether an object is paraphernalia, a court or other authority should
consider, in addition to all other logically relevant factors, the following:
1. Statements by an owner or by anyone in control of the object concerning its
use;
2. Prior convictions, if any, of an owner, or of anyone in control of the object,
under any state or federal law relating to any controlled substance;
3. The proximity of the object, in time and space, to a direct violation of the
Uniform Controlled Substances Law;
4. The proximity of the object to controlled substances;
5. The existence of any residue of controlled substances on the object;
6. Direct or circumstantial evidence of the intent of an owner, or of anyone in
control of the object, to deliver it to persons whom he knows, or should
reasonably know, intend to use the object to facilitate a violation of the Uniform
Controlled Substances Law; the innocence of an owner, or of anyone in control of
the object, as to a direct violation of the Uniform Controlled Substances Law shall
not prevent a finding that the object is intended for use, or designed for use as
paraphernalia;
7. Instructions, oral or written, provided with the object concerning its use;
8. Descriptive materials accompanying the object which explain or depict its use;
9. National and local advertising concerning its use;
10. The manner in which the object is displayed for sale;
11. Whether the owner or anyone in control of the object is a legitimate supplier
of like or related items to the community, such as a licensed distributor or dealer
of tobacco products;
12. Direct or circumstantial evidence of the ratio of sales of the object(s) to the
total sales of the business enterprise;
13. The existence and scope of legitimate uses for the object in the community;
14. Expert testimony concerning its use.
(w) “Person” means individual, corporation, government or governmental subdivision or
agency, business trust, estate, trust, partnership or association, or any other legal entity.
(x) “Poppy straw” means all parts, except the seeds, of the opium poppy, after mowing.
(y) “Practitioner” means:
(i) A physician, dentist, veterinarian, scientific investigator, optometrist certified
to prescribe and use therapeutic pharmaceutical agents under Sections 73-19-153
through 73-19-165, or other person licensed, registered or otherwise permitted to
distribute, dispense, conduct research with respect to or to administer a controlled
substance in the course of professional practice or research in this state; and
(ii) A pharmacy, hospital or other institution licensed, registered, or otherwise
permitted to distribute, dispense, conduct research with respect to or to administer
a controlled substance in the course of professional practice or research in this
state.
(z) “Production” includes the manufacture, planting, cultivation, growing or harvesting of
a controlled substance.
(aa) “Sale,” “sell” or “selling” means the actual, constructive or attempted transfer or
delivery of a controlled substance for remuneration, whether in money or other
consideration.
(bb) “State,” when applied to a part of the United States, includes any state, district,
commonwealth, territory, insular possession thereof, and any area subject to the legal
authority of the United States of America.
(cc) “Ultimate user” means a person who lawfully possesses a controlled substance for
his own use or for the use of a member of his household or for administering to an animal
owned by him or by a member of his household.
1802 PROHIBITED ACTS AND PENALTIES
§ 41-29-139
(a) Transfer and possession with intent to transfer. Except as authorized by this
article, it is unlawful for any person knowingly or intentionally:
(1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to
sell, barter, transfer, manufacture, distribute or dispense, a controlled substance; or
(2) To create, sell, barter, transfer, distribute, dispense or possess with intent to create,
sell, barter, transfer, distribute or dispense, a counterfeit substance.
(b) Punishment for transfer and possession with intent to transfer. Except as
otherwise provided in Section 41-29-142, any person who violates subsection (a) of this
section shall be, if convicted, sentenced as follows:
(1) For controlled substances classified in Schedule I or II, as set out in Sections
41-29-113 and 41-29-115, other than marijuana or synthetic cannabinoids:
(A) If less than two (2) grams or ten (10) dosage units, by imprisonment for not more than
eight (8) years or a fine of not more than Fifty Thousand Dollars ($50,000.00), or both.
(B) If two (2) or more grams or ten (10) or more dosage units, but less than ten (10)
grams or twenty (20) dosage units, by imprisonment for not less than three (3) years nor
more than twenty (20) years or a fine of not more than Two Hundred Fifty Thousand
Dollars ($250,000.00), or both.
(C) If ten (10) or more grams or twenty (20) or more dosage units, but less than thirty (30)
grams or forty (40) dosage units, by imprisonment for not less than five (5) years nor
more than thirty (30) years or a fine of not more than Five Hundred Thousand Dollars
($500,000.00), or both.
(2)(A) For marijuana:
1. If thirty (30) grams or less, by imprisonment for not more than three (3) years or a fine
of not more than Three Thousand Dollars ($3,000.00), or both;
2. If more than thirty (30) grams but less than two hundred fifty (250) grams, by
imprisonment for not more than five (5) years or a fine of not more than Five Thousand
Dollars ($5,000.00), or both;
3. If two hundred fifty (250) or more grams but less than five hundred (500) grams, by
imprisonment for not less than three (3) years nor more than ten (10) years or a fine of not
more than Fifteen Thousand Dollars ($15,000.00), or both;
4. If five hundred (500) or more grams but less than one (1) kilogram, by imprisonment
for not less than five (5) years nor more than twenty (20) years or a fine of not more than
Twenty Thousand Dollars ($20,000.00), or both.
(B) For synthetic cannabinoids:
1. If ten (10) grams or less, by imprisonment for not more than three (3) years or a fine of
not more than Three Thousand Dollars ($3,000.00), or both;
2. If more than ten (10) grams but less than twenty (20) grams, by imprisonment for not
more than five (5) years or a fine of not more than Five Thousand Dollars ($5,000.00), or
both;
3. If twenty (20) or more grams but less than forty (40) grams, by imprisonment for not
less than three (3) years nor more than ten (10) years or a fine of not more than Fifteen
Thousand Dollars ($15,000.00), or both;
4. If forty (40) or more grams but less than two hundred (200) grams, by imprisonment
for not less than five (5) years nor more than twenty (20) years or a fine of not more than
Twenty Thousand Dollars ($20,000.00), or both.
(3) For controlled substances classified in Schedules III and IV, as set out in Sections
41-29-117 and 41-29-119:
(A) If less than two (2) grams or ten (10) dosage units, by imprisonment for not more than
five (5) years or a fine of not more than Five Thousand Dollars ($5,000.00), or both;
(B) If two (2) or more grams or ten (10) or more dosage units, but less than ten (10)
grams or twenty (20) dosage units, by imprisonment for not more than eight (8) years or a
fine of not more than Fifty Thousand Dollars ($50,000.00), or both;
(C) If ten (10) or more grams or twenty (20) or more dosage units, but less than thirty (30)
grams or forty (40) dosage units, by imprisonment for not more than fifteen (15) years or
a fine of not more than One Hundred Thousand Dollars ($100,000.00), or both;
(D) If thirty (30) or more grams or forty (40) or more dosage units, but less than five
hundred (500) grams or two thousand five hundred (2,500) dosage units, by
imprisonment for not more than twenty (20) years or a fine of not more than Two
Hundred Fifty Thousand Dollars ($250,000.00), or both.
(4) For controlled substances classified in Schedule V, as set out in Section 41-29-121:
(A) If less than two (2) grams or ten (10) dosage units, by imprisonment for not more than
one (1) year or a fine of not more than Five Thousand Dollars ($5,000.00), or both;
(B) If two (2) or more grams or ten (10) or more dosage units, but less than ten (10)
grams or twenty (20) dosage units, by imprisonment for not more than five (5) years or a
fine of not more than Ten Thousand Dollars ($10,000.00), or both;
(C) If ten (10) or more grams or twenty (20) or more dosage units, but less than thirty (30)
grams or forty (40) dosage units, by imprisonment for not more than ten (10) years or a
fine of not more than Twenty Thousand Dollars ($20,000.00), or both;
(D) For thirty (30) or more grams or forty (40) or more dosage units, but less than five
hundred (500) grams or two thousand five hundred (2,500) dosage units, by
imprisonment for not more than fifteen (15) years or a fine of not more than Fifty
Thousand Dollars ($50,000.00), or both.
(c) Simple possession. It is unlawful for any person knowingly or intentionally to possess
any controlled substance unless the substance was obtained directly from, or pursuant to,
a valid prescription or order of a practitioner while acting in the course of his professional
practice, or except as otherwise authorized by this article. The penalties for any violation
of this subsection (c) with respect to a controlled substance classified in Schedules I, II,
III, IV or V, as set out in Section 41-29-113, 41-29-115, 41-29-117, 41-29-119 or
41-29-121, including marijuana or synthetic cannabinoids, shall be based on dosage unit
as defined herein or the weight of the controlled substance as set forth herein as
appropriate:
“Dosage unit (d.u.)” means a tablet or capsule, or in the case of a liquid solution, one (1)
milliliter. In the case of lysergic acid diethylamide (LSD) the term, “dosage unit” means a
stamp, square, dot, microdot, tablet or capsule of a controlled substance.
For any controlled substance that does not fall within the definition of the term “dosage
unit,” the penalties shall be based upon the weight of the controlled substance.
The weight set forth refers to the entire weight of any mixture or substance containing a
detectable amount of the controlled substance.
If a mixture or substance contains more than one (1) controlled substance, the weight of
the mixture or substance is assigned to the controlled substance that results in the greater
punishment.
A person shall be charged and sentenced as follows for a violation of this subsection with
respect to:
(1) A controlled substance classified in Schedule I or II, except marijuana and synthetic
cannabinoids:
(A) If less than one-tenth (0.1) gram or two (2) dosage units, the violation is a
misdemeanor and punishable by imprisonment for not more than one (1) year or a fine of
not more than One Thousand Dollars ($1,000.00), or both.
(B) If one-tenth (0.1) gram or more or two (2) or more dosage units, but less than two (2)
grams or ten (10) dosage units, by imprisonment for not more than three (3) years or a
fine of not more than Fifty Thousand Dollars ($50,000.00), or both.
(C) If two (2) or more grams or ten (10) or more dosage units, but less than ten (10)
grams or twenty (20) dosage units, by imprisonment for not more than eight (8) years or a
fine of not more than Two Hundred Fifty Thousand Dollars ($250,000.00), or both.
(D) If ten (10) or more grams or twenty (20) or more dosage units, but less than thirty
(30) grams or forty (40) dosage units, by imprisonment for not less than three (3) years
nor more than twenty (20) years or a fine of not more than Five Hundred Thousand
Dollars ($500,000.00), or both.
(2)(A) Marijuana and synthetic cannabinoids:
1. If thirty (30) grams or less of marijuana or ten (10) grams or less of synthetic
cannabinoids, by a fine of not less than One Hundred Dollars ($100.00) nor more than
Two Hundred Fifty Dollars ($250.00). The provisions of this paragraph (2)(A) may be
enforceable by summons if the offender provides proof of identity satisfactory to the
arresting officer and gives written promise to appear in court satisfactory to the arresting
officer, as directed by the summons. A second conviction under this section within two
(2) years is a misdemeanor punishable by a fine of Two Hundred Fifty Dollars ($250.00),
not more than sixty (60) days in the county jail, and mandatory participation in a drug
education program approved by the Division of Alcohol and Drug Abuse of the State
Department of Mental Health, unless the court enters a written finding that a drug
education program is inappropriate. A third or subsequent conviction under this
paragraph (2)(A) within two (2) years is a misdemeanor punishable by a fine of not less
than Two Hundred Fifty Dollars ($250.00) nor more than One Thousand Dollars
($1,000.00) and confinement for not more than six (6) months in the county jail.
Upon a first or second conviction under this paragraph (2)(A), the courts shall forward a
report of the conviction to the Mississippi Bureau of Narcotics which shall make and
maintain a private, nonpublic record for a period not to exceed two (2) years from the
date of conviction. The private, nonpublic record shall be solely for the use of the courts
in determining the penalties which attach upon conviction under this paragraph (2)(A)
and shall not constitute a criminal record for the purpose of private or administrative
inquiry and the record of each conviction shall be expunged at the end of the period of
two (2) years following the date of such conviction;
2. Additionally, a person who is the operator of a motor vehicle, who possesses on his
person or knowingly keeps or allows to be kept in a motor vehicle within the area of the
vehicle normally occupied by the driver or passengers, more than one (1) gram, but not
more than thirty (30) grams of marijuana or not more than ten (10) grams of synthetic
cannabinoids is guilty of a misdemeanor and, upon conviction, may be fined not more
than One Thousand Dollars ($1,000.00) or confined for not more than ninety (90) days in
the county jail, or both. For the purposes of this subsection, such area of the vehicle shall
not include the trunk of the motor vehicle or the areas not normally occupied by the driver
or passengers if the vehicle is not equipped with a trunk. A utility or glove compartment
shall be deemed to be within the area occupied by the driver and passengers;
(B) Marijuana:
1. If more than thirty (30) grams but less than two hundred fifty (250) grams, by a fine of
not more than One Thousand Dollars ($1,000.00), or confinement in the county jail for
not more than one (1) year, or both; or by a fine of not more than Three Thousand Dollars
($3,000.00), or imprisonment in the custody of the Department of Corrections for not
more than three (3) years, or both;
2. If two hundred fifty (250) or more grams but less than five hundred (500) grams, by
imprisonment for not less than two (2) years nor more than eight (8) years or by a fine of
not more than Fifty Thousand Dollars ($50,000.00), or both;
3. If five hundred (500) or more grams but less than one (1) kilogram, by imprisonment
for not less than four (4) years nor more than sixteen (16) years or a fine of not more than
Two Hundred Fifty Thousand Dollars ($250,000.00), or both;
4. If one (1) kilogram or more but less than five (5) kilograms, by imprisonment for not
less than six (6) years nor more than twenty-four (24) years or a fine of not more than
Five Hundred Thousand Dollars ($500,000.00), or both;
5. If five (5) kilograms or more, by imprisonment for not less than ten (10) years nor more
than thirty (30) years or a fine of not more than One Million Dollars ($1,000,000.00), or
both.
(C) Synthetic cannabinoids:
1. If more than ten (10) grams but less than twenty (20) grams, by a fine of not more than
One Thousand Dollars ($1,000.00), or confinement in the county jail for not more than
one (1) year, or both; or by a fine of not more than Three Thousand Dollars ($3,000.00),
or imprisonment in the custody of the Department of Corrections for not more than three
(3) years, or both;
2. If twenty (20) or more grams but less than forty (40) grams, by imprisonment for not
less than two (2) years nor more than eight (8) years or by a fine of not more than Fifty
Thousand Dollars ($50,000.00), or both;
3. If forty (40) or more grams but less than two hundred (200) grams, by imprisonment
for not less than four (4) years nor more than sixteen (16) years or a fine of not more than
Two Hundred Fifty Thousand Dollars ($250,000.00), or both;
4. If two hundred (200) or more grams, by imprisonment for not less than six (6) years
nor more than twenty-four (24) years or a fine of not more than Five Hundred Thousand
Dollars ($500,000.00), or both.
(3) A controlled substance classified in Schedule III, IV or V as set out in Sections
41-29-117 through 41-29-121, upon conviction, may be punished as follows:
(A) If less than fifty (50) grams or less than one hundred (100) dosage units, the offense is
a misdemeanor and punishable by not more than one (1) year or a fine of not more than
One Thousand Dollars ($1,000.00), or both.
(B) If fifty (50) or more grams or one hundred (100) or more dosage units, but less than
one hundred fifty (150) grams or five hundred (500) dosage units, by imprisonment for
not less than one (1) year nor more than four (4) years or a fine of not more than Ten
Thousand Dollars ($10,000.00), or both.
(C) If one hundred fifty (150) or more grams or five hundred (500) or more dosage units,
but less than three hundred (300) grams or one thousand (1,000) dosage units, by
imprisonment for not less than two (2) years nor more than eight (8) years or a fine of not
more than Fifty Thousand Dollars ($50,000.00), or both.
(D) If three hundred (300) or more grams or one thousand (1,000) or more dosage units,
but less than five hundred (500) grams or two thousand five hundred (2,500) dosage
units, by imprisonment for not less than four (4) years nor more than sixteen (16) years or
a fine of not more than Two Hundred Fifty Thousand Dollars ($250,000.00), or both.
(d) Paraphernalia. (1) It is unlawful for a person who is not authorized by the State
Board of Medical Licensure, State Board of Pharmacy, or other lawful authority to use, or
to possess with intent to use, paraphernalia to plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack,
store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a
controlled substance in violation of the Uniform Controlled Substances Law. Any person
who violates this subsection (d)(1) is guilty of a misdemeanor and, upon conviction, may
be confined in the county jail for not more than six (6) months, or fined not more than
Five Hundred Dollars ($500.00), or both; however, no person shall be charged with a
violation of this subsection when such person is also charged with the possession of thirty
(30) grams or less of marijuana under subsection (c)(2)(A) of this section.
(2) It is unlawful for any person to deliver, sell, possess with intent to deliver or sell, or
manufacture with intent to deliver or sell, paraphernalia, knowing, or under circumstances
where one reasonably should know, that it will be used to plant, propagate, cultivate,
grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze,
pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the
human body a controlled substance in violation of the Uniform Controlled Substances
Law. Except as provided in subsection (d)(3), a person who violates this subsection (d)(2)
is guilty of a misdemeanor and, upon conviction, may be confined in the county jail for
not more than six (6) months, or fined not more than Five Hundred Dollars ($500.00), or
both.
(3) Any person eighteen (18) years of age or over who violates subsection (d)(2) of this
section by delivering or selling paraphernalia to a person under eighteen (18) years of age
who is at least three (3) years his junior is guilty of a misdemeanor and, upon conviction,
may be confined in the county jail for not more than one (1) year, or fined not more than
One Thousand Dollars ($1,000.00), or both.
(4) It is unlawful for any person to place in any newspaper, magazine, handbill, or other
publication any advertisement, knowing, or under circumstances where one reasonably
should know, that the purpose of the advertisement, in whole or in part, is to promote the
sale of objects designed or intended for use as paraphernalia. Any person who violates
this subsection is guilty of a misdemeanor and, upon conviction, may be confined in the
county jail for not more than six (6) months, or fined not more than Five Hundred Dollars
($500.00), or both.
(e) It shall be unlawful for any physician practicing medicine in this state to prescribe,
dispense or administer any amphetamine or amphetamine-like anorectics and/or central
nervous system stimulants classified in Schedule II, pursuant to Section 41-29-115, for
the exclusive treatment of obesity, weight control or weight loss. Any person who
violates this subsection, upon conviction, is guilty of a misdemeanor and may be confined
for a period not to exceed six (6) months, or fined not more than One Thousand Dollars
($1,000.00), or both.
(f) Trafficking. (1) Any person trafficking in controlled substances shall be guilty of a
felony and, upon conviction, shall be imprisoned for a term of not less than ten (10) years
nor more than forty (40) years and shall be fined not less than Five Thousand Dollars
($5,000.00) nor more than One Million Dollars ($1,000,000.00). The ten-year mandatory
sentence shall not be reduced or suspended. The person shall not be eligible for probation
or parole, the provisions of Sections 41-29-149, 47-5-139, 47-7-3 and 47-7-33, to the
contrary notwithstanding.
(2) “Trafficking in controlled substances” as used herein means:
(A) A violation of subsection (a) of this section involving thirty (30) or more grams or
forty (40) or more dosage units of a Schedule I or II controlled substance except
marijuana and synthetic cannabinoids;
(B) A violation of subsection (a) of this section involving five hundred (500) or more
grams or two thousand five hundred (2,500) or more dosage units of a Schedule III, IV or
V controlled substance;
(C) A violation of subsection (c) of this section involving thirty (30) or more grams or
forty (40) or more dosage units of a Schedule I or II controlled substance except
marijuana and synthetic cannabinoids;
(D) A violation of subsection (c) of this section involving five hundred (500) or more
grams or two thousand five hundred (2,500) or more dosage units of a Schedule III, IV or
V controlled substance; or
(E) A violation of subsection (a) of this section involving one (1) kilogram or more of
marijuana or two hundred (200) grams or more of synthetic cannabinoids.
(g) Aggravated trafficking. Any person trafficking in Schedule I or II controlled
substances, except marijuana and synthetic cannabinoids, of two hundred (200) grams or
more shall be guilty of aggravated trafficking and, upon conviction, shall be sentenced to
a term of not less than twenty-five (25) years nor more than life in prison and shall be
fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars
($1,000,000.00). The twenty-five-year sentence shall be a mandatory sentence and shall
not be reduced or suspended. The person shall not be eligible for probation or parole, the
provisions of Sections 41-29-149, 47-5-139, 47-7-3 and 47-7-33, to the contrary
notwithstanding.
(h) Sentence mitigation. (1) Notwithstanding any provision of this section, a person who
has been convicted of an offense under this section that requires the judge to impose a
prison sentence which cannot be suspended or reduced and is ineligible for probation or
parole may, at the discretion of the court, receive a sentence of imprisonment that is no
less than twenty-five percent (25%) of the sentence prescribed by the applicable statute.
In considering whether to apply the departure from the sentence prescribed, the court
shall conclude that:
(A) The offender was not a leader of the criminal enterprise;
(B) The offender did not use violence or a weapon during the crime;
(C) The offense did not result in a death or serious bodily injury of a person not a party to
the criminal enterprise; and
(D) The interests of justice are not served by the imposition of the prescribed mandatory
sentence.
The court may also consider whether information and assistance were furnished to a law
enforcement agency, or its designee, which, in the opinion of the trial judge, objectively
should or would have aided in the arrest or prosecution of others who violate this
subsection. The accused shall have adequate opportunity to develop and make a record of
all information and assistance so furnished.
(2) If the court reduces the prescribed sentence pursuant to this subsection, it must specify
on the record the circumstances warranting the departure.
1803 SUSPENSION FOR CERTAIN CONVICTIONS
§ 63-1-71
(1) Notwithstanding the provisions of Section 63–11–30(3) and in addition to any penalty
authorized by the Uniform Controlled Substances Law or any other statute indicating the
dispositions that can be ordered for an adjudication of delinquency, every person
convicted of driving under the influence of a controlled substance, or entering a plea of
nolo contendere thereto, or adjudicated delinquent therefor, in a court of this state, the
United States, another state, a territory or possession of the United States, the District of
Columbia or the Commonwealth of Puerto Rico, shall forthwith forfeit his right to
operate a motor vehicle over the highways of this state for a period of not less than six (6)
months. In the case of any person who at the time of the imposition of sentence does not
have a driver's license or is less than sixteen (16) years of age, the period of the
suspension of driving privileges authorized herein shall commence on the day the
sentence is imposed and shall run for a period of not less than six (6) months after the day
the person obtains a driver's license or reaches the age of sixteen (16). If the driving
privilege of any person is under revocation or suspension at the time of any conviction or
adjudication of delinquency for driving under the influence of a controlled substance, the
revocation or suspension period imposed herein shall commence as of the date of
termination of the existing revocation or suspension.
(2) The court in this state before whom any person is convicted of or adjudicated
delinquent for driving under the influence of a controlled substance shall collect forthwith
the Mississippi driver's license of the person and forward such license to the Department
of Public Safety along with a report indicating the first and last day of the suspension or
revocation period imposed pursuant to this section. If the court is for any reason unable to
collect the license of the person, the court shall cause a report of the conviction or
adjudication of delinquency to be filed with the Commissioner of Public Safety. That
report shall include the complete name, address, date of birth, eye color and sex of the
person and shall indicate the first and last day of the suspension or revocation period
imposed by the court pursuant to this section. The court shall inform the person orally and
in writing that if the person is convicted of personally operating a motor vehicle during
the period of license suspension or revocation imposed pursuant to this section, the
person shall, upon conviction, be subject to the penalties set forth in Section 63–11–40. A
person shall be required to acknowledge receipt of the written notice in writing. Failure to
receive a written notice or failure to acknowledge in writing the receipt of a written notice
shall not be a defense to a subsequent charge of a violation of Section 63–11–40. If the
person is the holder of a driver's license from another jurisdiction, the court shall not
collect the license but shall notify forthwith the Commissioner of Public Safety who shall
notify the appropriate officials in the licensing jurisdiction. The court shall, however, in
accordance with the provisions of this section, revoke the person's nonresident driving
privilege in this state.
(3) The county court or circuit court having jurisdiction, on petition, may reduce the
suspension of driving privileges under this section if the suspension would constitute a
hardship on the offender. When the petition is filed, such person shall pay to the circuit
clerk of the court where the petition is filed a fee of Twenty Dollars ($20.00) for each
year, or portion thereof, of license revocation or suspension remaining under the original
sentence, which shall be deposited into the State General Fund to the credit of a special
fund hereby created in the State Treasury to be used for alcohol or drug abuse treatment
and education, upon appropriation by the Legislature. This fee shall be in addition to any
other court costs or fees required for the filing of petitions.
1804 PROVING POSSESSION OF CONTROLLED SUBSTANCES
Possession can be actual or constructive, joint or individual, and proven with direct or
circumstantial evidence. See McKinney v. State, 724 So. 2d 928, 930 (Miss. Ct. App.
1998); Roberson v. State, 595 So. 2d 1310, 1319 (Miss. 1992). But sometimes those
distinctions are blurred:
[W]hen drawing an analytical distinction between actual and constructive
possession, it is the relationship between the individual and the particular
property which must be scrutinized. Actual possession is an actual
physical holding of the property, consisting of the capacity to control it
coupled with an intent to do so. Constructive possession also consists of
the capacity and the intent to control such property, but actual physical
control is absent.
George H. Singer, Constructive Possession of Controlled Substances: A North
Dakota Look at a Nationwide Problem, 68 N.D. L. Rev. 981, 983 (1992).
Several factors must be considered:
What constitutes a sufficient external relationship between the defendant
and the narcotic property to complete the concept of ‘possession’ is a
question which is not susceptible of a specific rule. However, there must
be sufficient facts to warrant a finding that defendant was aware of the
presence and character of the particular substance and was intentionally
and consciously in possession of it. It need not be actual physical
possession. Constructive possession may be shown by establishing that the
drug involved was subject to his dominion or control. Proximity is usually
an essential element, but by itself is not adequate in the absence of other
incriminating circumstances.
Curry v. State, 249 So. 2d 414, 416 (Miss. 1971).
1805 ACTUAL POSSESSION
Actual possession may be established by showing physical possession and control, or
alternatively, incriminating circumstances and a confession:
[T]here is direct evidence of actual possession in the present case. Officer
Leonard testified that he saw, at a distance of about 25 feet, a plastic bag
leave Givens' hand and travel to the ground, where it was immediately
seized in an area close to Givens. Although the general area was littered
and crowded, Leonard stated that no other plastic bags were found in the
immediate area, nor were there any plastic cups.
Givens v. State, 618 So. 2d 1313, 1319 (Miss. 1993).
See also Millsaps v. State, 767 So. 2d 286, 293 (Miss. Ct. App. 2000) (“Constructive
possession instructions are properly given as a vehicle whereby the State can prove guilt
when either the drugs are not found on the defendant's person or the defendant did not
confess. Millsap confessed. There was no need to instruct the jury on constructive
possession.”); Mauldin v. State, 750 So. 2d 564, 566 (Miss. Ct. App. 1999) (“[S]ince the
drugs were not found on Mauldin and the cigarette case was not his, the only basis which
the jury could find that he had actual possession would be the fact that he had briefly
handled the cigarette case with the drugs in it earlier. Such actions are not sufficient . . .
because possession requires actual or constructive control, not a mere passing control
which occurs from a momentary handling.”).
Often criminals will try to ditch the drugs while being pursued. But,
[A]ctual possession of drugs can be established by testimony from an
officer that he observed the defendant tossing an object which was
subsequently located at the same site and, upon examination of the object,
it was determined to be a controlled substance.
Boyd v. State, 634 So. 2d 113, 116 (Miss. 1994).
See also Hicks v. State, 580 So. 2d 1302, 1306 (Miss. 1991) (“[T]here is clear evidence
establishing actual possession by Hicks from the testimony of the detective, who actually
saw Hicks with the canister of cocaine packets.”).
1806 CONSTRUCTIVE POSSESSION
Used by courts when actual possession cannot be proven:
“The doctrine of constructive possession is a legal fiction used by the courts when actual
possession cannot be proven.” Swington v. State, 742 So. 2d 1106, 1119 (Miss. 1999).
How constructive possession is shown:
Constructive possession requires sufficient facts to warrant a finding that the defendant
was aware of the presence and character of the particular substance and was intentionally
and consciously in possession of it. This may be shown by establishing that the drug
involved was subject to the defendant’s dominion or control as determined from the
“totality of the circumstances.”
See, e.g:
Terry v. State, 2021 WL 218999 (Miss. 2021) (“The jury heard evidence that Terry lived
in the apartment. At the time the search warrant was executed, Terry was exerting control
over the premises. Because the drugs were in plain view, Terry knew or should have
known of the presence of the substance. Accordingly, considering the evidence in the
light most favorable to the State, sufficient evidence supported the jury's verdict.”
Berry v. State, 652 So. 2d 745, 751 (Miss. 1995) (“Possession, no matter how fleeting, is
sufficient to sustain a conviction. Possession is defined, however, in terms of the exercise
of dominion and control. We hold only, that in the circumstances here presented, the
momentary handling was insufficient to support an inference of dominion and control.”).
Rebuttable presumption as to the owner of premises or vehicle:
The owner in possession of the premises, or the vehicle in which contraband is kept or
transported, is presumed to be in constructive possession of the articles found in or on the
property possessed. But the presumption may be rebutted:
The presumption of a constructive possession . . . is a rebuttable
presumption and must give way to the facts proven. Moreover, the
rebuttable presumption of constructive possession does not relieve the
State of the burden to establish defendant's guilt as required by law and the
defendant is presumed to be innocent until this is done.
Hamburg v. State, 248 So. 2d 430, 432 (Miss. 1971).
See also Brown v. State, 143 So. 3d 624, 628 (Miss. Ct. App. 2014) (“Brown presented
no evidence to rebut the constructive-possession presumption other than a showing that
another person had been in the passenger's seat immediately prior to the incident.”);
Spencer v. State, 908 So. 2d 783, 788 (Miss. Ct. App. 2005) (“Spencer neither testified at
trial nor produced witnesses in order to rebut the presumption that he was driving the
truck and that he was found to have constructive possession over the
methamphetamine.”).
But, “this presumption is rebuttable, however, and does not relieve the State of its burden
to prove guilt beyond a reasonable doubt.” Pool v. State, 483 So. 2d 331, 337 (Miss.
1986).
If defendant does not own premises or vehicle where drugs are recovered:
Constructive possession can be proved even if the accused is not in the exclusive control
and possession of the premises. But, in those circumstances, there must be additional
incriminating facts to connect the accused with the contraband. See Powell v. State, 355
So. 2d 1378, 1379 (Miss. 1978). If not, then the court should grant a directed verdict. See
Jones v. State, 693 So. 2d 375, 377 (Miss. 1997); Fultz v. State, 573 So. 2d 689, 691
(Miss. 1990).
Sometimes the connection is there:
There was sufficient evidence presented to the jury to enable a finding
beyond a reasonable doubt that Rudolph Miller was in constructive
possession of crack cocaine. Miller was the only passenger in a police car
that was searched immediately prior to his occupancy and again
subsequent to Miller's leaving the car. The police car was locked and
secure at all times.
Miller v. State, 634 So. 2d 127, 130-31 (Miss. 1974).
See also Johnson v. State, 81 So. 3d 1020, 1026 (Miss. 2011) (“Johnson's location near
the vehicle, absent ‘additional incriminating circumstances,’ is not sufficient to sustain
his conviction of constructive possession.”); Fox v. State, 756 So. 2d 753, 758 (Miss.
2000) (“[T]he fact that Fox had a pair of scissors in his hand while standing near
containers with freshly cut marijuana in a house owned by his mother and with no one
else in the house shown to have had a substantial connection to it or control of it, shows
Fox had constructive possession.”); Bell v. State, 830 So. 2d 1285, 1288 (Miss. Ct. App.
2002) (“Examples [of ‘additional incriminating facts’] are Bell's proximity to the drugs,
Garcia's statements that Bell was involved with the methamphetamine production and
that Bell received the finished product, and testimony that it would be nearly impossible
for a resident to miss the strong smell generated by cooking methamphetamine.”);
Mitchell v. State, 754 So. 2d 519, 522 (Miss. Ct. App. 1999) (“[The] link of competent
evidence is the testimony of Dedeaux that Mitchell admitted possession of the cocaine.”).
Other times it is not:
The only proof here is that Pate rented the room and that the contraband
was found there the day after he had checked out. Any one of the motel
staff could have put it there. Any guest of Pate's could have put it there.
Finally, it may have been there before Pate rented the room, or it may have
been hidden there afterwards. In any event, there is not enough evidence
here to support Pate's conviction based upon constructive possession, . . . .
Pate v. State, 557 So. 2d 1183, 1186-87 (Miss. 1990).
See also Martin v. State, 804 So. 2d 967, 970 (Miss. 2001) (“Martin's mere presence in
the kitchen area where the marijuana was found, without more, is simply not enough [to
establish constructive possession].”).
1807 JOINT OR INDIVIDUAL POSSESSION
“Possession of contraband may be actual or constructive, and may be joint or individual.
Two or more persons may be in possession where they have joint power of control and an
inferable intent to control jointly.” Wolf v. State, 260 So. 2d 425, 432 (Miss. 1972). A
driver whose vehicle reeks of marihuana has some explaining to do:
[The driver] did not present any evidence to overcome [the presumption of
constructive possession] aside of mentioning the fact that there was a
passenger present in the vehicle with him. However, it is of no
consequence that there was a passenger in the vehicle with [the defendant].
It is quite possible to have joint constructive possession.
Wall v. State, 718 So. 2d 1107, 1111 (Miss. 1998).
1808 PROVEN BY DIRECT OR CIRCUMSTANTIAL EVIDENCE
Possession of drugs may be proved by direct or circumstantial evidence. See United
States v. Munoz, 150 F.3d 401, 416 (5
th
Cir. 1998).
What is “circumstantial evidence”? The least inadequate definition we can
provide is that circumstantial evidence is evidence which, without going
directly to prove the existence of a fact, gives rise to a logical inference
that such fact does exist. Conversely, eye witness testimony is thought of
as direct evidence. The problem is that evidence in criminal cases does not
fit into two nice, neat, mutually exclusive categories: direct and
circumstantial. There are too many shades of gray. Most trials are full of
evidence from one end of the spectrum to the other.
Keys v. State, 478 So. 2d 266, 268 (Miss. 1985).
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CHAPTER 19
CRIMINAL TRESPASSES
1900 APPLICABLE LAWS
Definitions
Civil immunity for victim
Boxing pine trees
Cutting trees
Injuring or destroying shade or ornamental trees
Removal of “sea oats” from shore
Going upon enclosed land of another
Upon the real or personal property of another
Upon any air operations area or sterile area of an airport
Destruction or carrying away of vegetation
Defacing, altering or destroying notices posted on land
Entry without permission
Going into or upon premises after being forbidden to do so
Inciting or soliciting others to go into or upon premises of another
Right to choose or refuse to serve
Critical infrastructure
1901 HUNTING AND FISHING TRESPASSES
Unlawful to disturb traps
Unlawful to hunt on lands of another when warned not to do so
Trespassing on game or fish refuge
1902 DEFENSE OF NECESSITY
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1900 APPLICABLE LAWS
§ 97-17-103 Definitions:
(1) As used in this section:
(a) “Perpetrator” means a person who has engaged in criminal trespass and includes a
person convicted of trespass under applicable state law;
(b) “Victim” means a person who was the object of another's criminal trespass and
includes a person at the scene of an emergency who gives reasonable assistance to
another person who is exposed to or has suffered grave physical harm;
(c) “Course of criminal conduct” includes the acts or omissions of a victim in resisting
criminal conduct;
(d) “Convicted” includes a finding of guilt, whether or not the adjudication of guilt is
stayed or executed, an unwithdrawn judicial admission of guilt or guilty plea, a no contest
plea, a judgment of conviction, an adjudication as a delinquent child, an admission to a
juvenile delinquency petition, or a disposition as an extended jurisdiction juvenile; and
(e) “Trespass” means an offense named in Sections 97-17-1 through 97-17-97,
Mississippi Code of 1972, or any attempt to commit any of these offenses. Trespass
includes crimes in other states or jurisdictions which would have been within the
definition set forth in this subdivision if they had been committed in this state.
See also White v. Mississippi Power & Light Company, 196 So. 2d 343, 351 (Miss.
1967) (“To constitute the offense of criminal trespass, intentional acts must be used, or a
willful demonstration of force calculated to intimidate or alarm, or acts involving or
tending to a breach of the peace. It is obvious, therefore, that in order to show a criminal
trespass, it is necessary that it be shown that there was an intent to do an act which is in
violation of the statutory misdemeanor, as distinguished from a civil trespass or injury as
a result of negligence.”).
§ 97-17-103 Civil immunity for victim:
(2) A perpetrator assumes the risk of loss, injury or death resulting from or arising out of
a course of criminal trespass, as defined in this section, engaged in by the perpetrator or
an accomplice, and the crime victim is immune from and not liable for any civil damages
as a result of acts or omissions of the victim.
§ 97-17-79 Boxing pine trees:
If any person shall box for turpentine, or cut or cause to be cut, a box or boxes in a pine
tree growing on land known to belong to another, without the consent of the owner, he
shall, on conviction, be fined not less than five dollars nor more than twenty dollars for
each tree so cut or boxed, or be imprisoned in the county jail not exceeding three months,
or both.
§ 97-17-81 Cutting trees:
If any person shall cut or raft any cypress, pine, oak, gum, hickory, pecan, walnut,
mulberry, poplar, cottonwood, sassafras, or ash trees or timber upon any lands belonging
to any other person or corporation, without permission from the owner thereof, or his
agent duly authorized, such person shall, on conviction, be imprisoned in the county jail
not more than five months, or fined not less than ten dollars nor more than one thousand
dollars, or both.
§ 97-17-83 Injuring or destroying shade or ornamental trees:
If any person shall wilfully injure or destroy any shade tree or any ornamental tree not his
own, on any highway or street, or in any yard, garden, or park, he shall, on conviction, be
fined not less than five dollars nor more than twenty dollars for each tree so injured or
destroyed, or shall be imprisoned in the county jail not less than ten days nor more than
thirty days for each offense.
§ 97-17-84 Removal of “sea oats” from shore:
Any person who removes a plant commonly known as “sea oats” or “uniola paniculata”
from the shores of this state shall be guilty of a misdemeanor and shall, upon conviction,
be fined not more than Five Hundred Dollars ($500.00).
§ 97-17-85 Going upon enclosed land of another:
Except as otherwise provided in Section 73-13-103, if any person shall go upon the
enclosed land of another without his consent, after having been notified by such person or
his agent not to do so, either personally or by published or posted notice, or shall remain
on such land after a request by such person or his agent to depart, he shall, upon
conviction, be fined not more than Fifty Dollars ($50.00) for such offense. The
provisions of this section shall apply to land not enclosed where the stock law is in force.
§ 97-17-87 Upon the real or personal property of another:
(1) Any person who shall be guilty of a willful or malicious trespass upon the real or
personal property of another, for which no other penalty is prescribed, shall, upon
conviction, be fined not exceeding Five Hundred Dollars ($500.00), or imprisoned not
longer than six (6) months in the county jail, or both.
§ 97-17-87 Upon any air operations area or sterile area of an airport:
(2)(a) Any person who shall willfully trespass upon any air operations area or
sterile area of an airport serving the general public shall be guilty of a
misdemeanor and, upon conviction, shall be fined not more than One Thousand
Dollars ($1,000.00) or imprisoned in the county jail for up to one (1) year, or both.
(b) For the purposes of this subsection (2), “air operations area” means a portion
of an airport designed and used for landing, taking off, or surface maneuvering of
airplanes; “sterile area” means an area to which access is controlled by the
inspection of persons and property in accordance with an approved security
program.
§ 97-17-89 Destruction or carrying away of vegetation:
Any person who shall enter upon the closed or unenclosed lands of another or of the
public and who shall willfully and wantonly gather and unlawfully sever, destroy, carry
away or injure any trees, shrubs, flowers, moss, grain, turf, grass, hay, fruits, nuts or
vegetables thereon, where such action shall not amount to larceny, shall be guilty of a
misdemeanor, and upon conviction shall be fined not exceeding five hundred dollars
($500.00), or be imprisoned not exceeding six (6) months in the county jail, or both; and
a verdict of guilty of such action may be rendered under an indictment for larceny, if the
evidence shall not warrant a verdict of guilty of larceny, but shall warrant a conviction
under this section.
§ 97-17-91 Defacing, altering or destroying notices posted on land:
Any person who shall deface, remove, alter or destroy any notice placed upon any lands
by the owner thereof or his agent posting or otherwise prohibiting the entrance upon any
lands in this state shall, upon conviction, be fined not more than fifty dollars ($50.00) for
each such notice defaced, removed, altered or destroyed.
§ 97-17-93 Entry without permission:
(1) Any person who knowingly enters the lands of another without the permission of or
without being accompanied by the landowner or the lessee of the land, or the agent of
such landowner or lessee, shall be guilty of a misdemeanor and, upon conviction, shall be
punished for the first offense by a fine of Two Hundred Fifty Dollars ($250.00). Upon
conviction of any person for a second or subsequent offense, the offenses being
committed within five (5) years of the last offense, such person shall be punished by a
fine of Five Hundred Dollars ($500.00), and may be imprisoned in the county jail for a
period of not less than ten (10) nor more than thirty (30) days, or by both such fine and
imprisonment. This section shall not apply to the landowner's or lessee's family, guests, or
agents, to a surveyor as provided in Section 73-13-103, or to persons entering upon such
lands for lawful business purposes.
(2)(a) It shall be the duty of sheriffs, deputy sheriffs, constables and conservation officers
to enforce this section.
(b) Such officers shall enforce this section by issuing a citation to those charged with
trespassing under this section.
(3) The provisions of this section are supplementary to the provisions of any other statute
of this state.
(4) A prosecution under the provisions of this section shall be dismissed upon the request
of the landowner, lessee of the land or agent of such landowner or lessee, as the case may
be.
§ 97-17-97 Going into or upon premises after being forbidden to do so:
(1) Except as otherwise provided in Section 73-13-103, if any person or persons shall
without authority of law go into or upon or remain in or upon any building, premises or
land of another, including the premises of any public housing authority after having been
banned from returning to the premises of the housing authority, whether an individual, a
corporation, partnership, or association, or any part, portion or area thereof, after having
been forbidden to do so, either orally or in writing including any sign hereinafter
mentioned, by any owner, or lessee, or custodian, or other authorized person, or by the
administrators of a public housing authority regardless of whether or not having been
invited onto the premises of the housing authority by a tenant, or after having been
forbidden to do so by such sign or signs posted on, or in such building, premises or land,
or part, or portion, or area thereof, at a place or places where such sign or signs may be
reasonably seen, such person or persons shall be guilty of a misdemeanor, and upon
conviction thereof shall be punished by a fine of not more than Five Hundred Dollars
($500.00) or by confinement in the county jail not exceeding six (6) months, or by both
such fine and imprisonment.
(2) The provisions of this section are supplementary to the provisions of any other statute
of this state.
See also Miss. Code Ann. § 73-13-103 providing for criminal immunity to land surveyors
who enter public or private lands or waters (but not buildings) while in the lawful
performance of surveying duties.
Mississippi Attorney General’s opinions:
Trespass after being told to leave premises.
“[I]f an invitee or guest in a home or guest house remains after having been orally or in
writing forbidden to remain, the person my be found guilty of a misdemeanor trespass.”
Op. Atty. Gen. Dearman, December 17, 2010.
§ 97-17-99 Inciting or soliciting others to go into or upon premises of another:
(1) If any person or persons shall incite, or solicit, or urge, or encourage, or exhort, or
instigate, or procure any other person or persons to go into or upon or to remain in or
upon any building, or premises, or land of another whether an individual, a corporation,
partnership, or association, or any part, portion or area thereof, knowing such other
person or persons to have been forbidden, either orally or in writing including any sign
hereinafter mentioned, to do so by any owner, or lessee, or custodian, or other authorized
person, or knowing such other person or persons to have been forbidden to do so by a
sign or signs posted in or upon such building, or premises, or land, or part, or portion
thereof, at a place or places where it or they may be reasonably seen, shall be guilty of a
misdemeanor and upon conviction thereof shall be punished by a fine of not more than
five hundred dollars ($500.00) or by confinement in the county jail not exceeding six (6)
months, or by both such fine and imprisonment.
(2) The provisions of this section are supplementary to the provisions of any other statute
of this state.
§ 97-23-17 Right to choose or refuse to serve:
(1) Every person, firm or corporation engaged in any public business, trade or profession
of any kind whatsoever in the State of Mississippi, including, but not restricted to, hotels,
motels, tourist courts, lodging houses, restaurants, dining room or lunch counters, barber
shops, beauty parlors, theatres, moving picture shows, or other places of entertainment
and amusement, including public parks and swimming pools, stores of any kind wherein
merchandise is offered for sale, is hereby authorized and empowered to choose or select
the person or persons he or it desires to do business with, and is further authorized and
empowered to refuse to sell to, wait upon or serve any person that the owner, manager or
employee of such public place of business does not desire to sell to, wait upon or serve.
The provisions of this section shall not apply to corporations or associations engaged in
the business of selling electricity, natural gas, or water to the general public, or furnishing
telephone service to the public.
(2) Any public place of business may, if it so desires, display a sign posted in said place
of business serving notice upon the general public that “the management reserves the
right to refuse to sell to, wait upon or serve any person,” however, the display of such a
sign shall not be a prerequisite to exercising the authority conferred by this section.
(3) Any person who enters a public place of business in this state, or upon the premises
thereof, and is requested or ordered to leave therefrom by the owner, manager or any
employee thereof, and after having been so requested or ordered to leave, refuses so to do,
shall be guilty of a trespass and upon conviction therefor shall be fined not more than five
hundred dollars ($500.00) or imprisoned in jail not more than six (6) months, or both
such fine and imprisonment.
CAUTION: State and federal laws prohibit discrimination. Businesses may not refuse
entry or service in violation of civil rights or equal protections.
§ 97-25-59 Critical infrastructure:
As used in this act, unless otherwise defined, "critical infrastructure facility" means:
(a) Any portion of an oil, gas, carbon dioxide, hazardous liquid or chemical pipeline or
tank that is buried or enclosed by a fence or other physical barrier obviously designed to
exclude intruders, or clearly marked with a sign or signs reasonably likely to come to the
attention of intruders and indicating that entry is forbidden without authorization.
(b) One (1) of the following, if enclosed by a fence or other physical barrier obviously
designed to exclude intruders, or if clearly marked with a sign or signs reasonably likely
to come to the attention of intruders and indicating that entry is forbidden without
authorization:
(i) A chemical or polymer manufacturing facility;
(ii) A telecommunications central switching office;
(iii) Wireless or other telecommunications infrastructure, including cell towers,
communication towers, telephone poles and lines, cable headend or fiber-optic
lines, other than those connecting to individual residences;
(iv) A transmission facility used by a federally licensed radio or television station,
a governmental law enforcement or emergency services radio system, or electric
utility;
(v) A petroleum refinery;
(vi) A liquid natural gas terminal or storage facility or compressed gas liquids
plant or storage facility;
(vii) A natural gas compressor station;
(viii) A hydrocarbon processing plant, including a plant used in the processing,
treatment or fractionation of oil, natural gas or natural gas liquids;
(ix) A natural gas distribution utility facility, including transmission facilities,
pipeline interconnections, a city gate or town border station, metering stations,
piping, a regulator station or a natural gas storage facility;
(x) A crude oil or refined products storage and distribution facility, including
storage tanks, valve sites, pipeline interconnections, pump stations, metering
stations, pipelines, or piping and truck loading or offloading facilities;
(xi) An above-ground or underground mining facility;
(xii) An electrical power generating facility, substation, switching station,
communication facility, electrical control center or electric power lines and
associated equipment infrastructure other than those connections to individual
residences;
(xiii) A data center or supercomputing center that has an average constant draw
of at least one (1) megawatt of electricity;
(xiv) A commercial airport, trucking terminal or other freight transportation
facility, including a railroad switching yard, railroad facility or railroad track;
(xv) Any reservoir that supplies water for industrial or municipal supplies or
irrigation for multiple users or an irrigation district; or
(xvi) A water intake structure, water treatment facility, wastewater treatment
plant, pump station or water lines and associated equipment infrastructure other
than those connections to individual residences.
(c) Any site where the construction or improvement of any facility or structure referenced
in this section is occurring.
(2) Impeding critical infrastructure.
(a) A person is guilty of impeding critical infrastructure if he or she intentionally or
knowingly impedes the operations of a critical infrastructure facility in a manner not
otherwise authorized by law.
(b) Impeding critical infrastructure is:
(i) A misdemeanor punishable by imprisonment for not more than six (6) months,
a fine of not more than One Thousand Dollars ($1,000.00), or both, if the
impediment causes damage or economic loss, the cost of which is less than One
Thousand Dollars ($1,000.00);
(ii) A felony punishable by imprisonment for not more than seven (7) years, a
fine of not more than Ten Thousand Dollars ($10,000.00), or both, if the
impediment causes damage or economic loss, the cost of which is One Thousand
Dollars ($1,000.00) or more.
(c) If a series of damage or loss results from a single continuing course of conduct, a
single violation of this section may be charged and penalties imposed based on the
aggregate cost of the damage or loss.
(d) An organization that aids, abets, solicits, compensates, hires, conspires with,
commands or procures a person to commit the crime of impeding critical infrastructure is
subject to a fine not to exceed One Hundred Thousand Dollars ($100,000.00), provided
that the organization acted with the intent that the crime of impeding critical
infrastructure be completed. A critical infrastructure facility may maintain a civil action
against an organization for damages suffered as a consequence of a violation of this
subsection, including damages for lost profits, whether or not any fine is imposed
pursuant to this subsection.
(e) No person shall be liable for a violation of paragraph (a) or (b) of this subsection if
the person:
(i) Owns or legally occupies the land upon which the critical infrastructure
facility is located and is engaged in conduct that is not inconsistent with the
operation of the critical infrastructure facility or that is authorized by an
agreement;
(ii) Is lawfully engaged in any regulatory or legal process to which the critical
infrastructure facility is subject; or
(iii) Is engaged in conduct arising out of a bona fide dispute about access to land.
(f) As used in this subsection, "impede" means:
(i) To block the operation of or prevent legal access to a critical infrastructure facility or
the construction site of a permitted critical infrastructure facility; or
(ii) To damage, destroy, deface or tamper with the equipment of a critical infrastructure
facility, whether completed or under construction.
(3) Critical infrastructure trespass. (a) A person is guilty of critical infrastructure
trespass if he or she enters or remains on or in a critical infrastructure facility or the
construction site of a permitted critical infrastructure facility knowing he is not authorized
to do so, or by means of false, forged, altered or counterfeit identification, or after having
been notified to depart or not to trespass. For purposes of this subsection, notice is given
by:
(i) Personal communication to the person by the owner or occupant, or his agent,
or by a peace officer;
(ii) Posting of signs reasonably likely to come to the attention of intruders; or
(iii) The presence of fencing or other physical barrier designed to exclude
intruders.
(b) Critical infrastructure trespass is a misdemeanor punishable by imprisonment for not
more than one (1) year, a fine of not more than One Thousand Dollars ($1,000.00), or
both.
(c) No person shall be liable for a violation of paragraph (a) of this subsection if that
person:
(i) Owns or legally occupies the land upon which the facility is located and is
engaged in conduct that is not inconsistent with the operation of the critical
infrastructure facility or that is authorized by an agreement; or
(ii) Is lawfully engaged in any regulatory or legal process to which the critical
infrastructure facility is subject.
(4) Nothing in this section shall be construed to prohibit:
(a) Public demonstrations or other expressions of free speech or free association to the
extent such activity is protected under the United States or Mississippi Constitutions;
(b) Lawful commercial or recreational activities conducted in the open or unconfined
areas around a pipeline, including, but not limited to, fishing, hunting, boating and
birdwatching; or
(c) The lawful exercise of the right of ownership by an owner of real property, including
use, enjoyment and disposition within the limits and under the conditions established by
law.
1901 HUNTING AND FISHING TRESPASSES
§ 49-7-71 Unlawful to disturb traps:
It shall be unlawful for any person to disturb the traps of another or to take any
fur-bearing animals from them unless specifically authorized by the owner and any person
so doing shall be guilty of larceny, or trespass as the case may be, and punishable as
provided by law.
§ 49-7-79 Unlawful to hunt on lands of another when warned not to do so:
It shall be unlawful to hunt, shoot, or trap or otherwise trespass on the lands or leases of
another after having been warned not to do so, whether in person or by posting of suitable
notice in conspicuous places on such lands.
§ 49-5-39 Trespassing on game or fish refuge:
(2) Any person trespassing on any game or fish refuge in any game or fish management
area shall be guilty of a misdemeanor and punished by a fine of not less than one hundred
dollars ($100.00) nor more than two hundred fifty dollars ($250.00) and imprisonment in
the county jail of not more than thirty (30) days.
1902 DEFENSE OF NECESSITY
The defense of necessity is applicable only if the trespass was to prevent a significant
evil, there was no adequate alternative, harm caused is not disproportionate to harm
avoided, and threatened harm was specific and imminent. See McMillan v. City of
Jackson, 701 So. 2d 1105 (Miss. 1997) (discussing defense of necessity).
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CHAPTER 20
PROTECTION FROM DOMESTIC ABUSE
2000 DEFINITIONS
2001 JURISDICTION
Courts with jurisdiction to hear domestic abuse cases
Right to relief not affected by leaving to avoid further abuse
Proper venue
Transfer if court lacks proper venue
Record to be made of proceedings
2002 FILING A PETITION ALLEGING DOMESTIC ABUSE
Who may file
Proceedings expedited
Where petition may be filed
When emergency relief may be filed in chancery court
Assessing costs
What the petition is to state
If a spouse is the alleged abuser
If a former spouse is the alleged abuser
If a child is the alleged abused or abuser
If emergency relief is requested
When petitioner’s address may be omitted
Petition to be signed under oath
When hearing is to be conducted
Personal service of process required
2003 REQUEST FOR EMERGENCY RELIEF
Request to be expedited
Emergency relief that may be granted
Duration of the order
Standardized forms for emergency protection orders
Orders to be entered in the Mississippi Protection Order Registry
Other relief provided by law not precluded
Title to real property not affected
2004 REQUEST FOR TEMPORARY RELIEF
Temporary relief that may be granted
Terms of the protection order to be specific
Duration of the protection order
Standardized forms for temporary protection orders
Orders to be entered in the Mississippi Protection Order Registry
Modifying, amending, or dissolving a protection order
Scope of a protection order
De novo appeal
Other relief provided by law not precluded
Title to real property not affected
Divorce decree may supercede protection order
2005 EVIDENTIARY MATTERS
Exceptions to husband-wife privilege
No spousal disqualification
2006 PROTECTION ORDERS FROM ANOTHER JURISDICTION
Protection order defined
Full faith and credit
2007 PENALTIES FOR VIOLATING A PROTECTION ORDER
Knowing violation is a misdemeanor
Alternatively, a knowing violation is contempt
Officers to utilize uniform offense report
Court to enter disposition into uniform offense report
On construing bond condition violations
2008 REPORTING DOMESTIC ABUSE OR REQUESTING ASSISTANCE
Immunity in reporting domestic abuse
Law enforcement officer immunity
Request for local law enforcement assistance
Remedy supplemental
2009 MISSISSIPPI PROTECTIVE ORDER REGISTRY
2010 DOMESTIC VIOLENCE LEGAL FORMS
2000 DEFINITIONS
§ 93-21-3 “Abuse” and other terms defined:
As used in this chapter, unless the context otherwise requires:
(a) “Abuse” means the occurrence of one or more of the following acts between spouses,
former spouses, persons living as spouses or who formerly lived as spouses, persons
having a child or children in common, other individuals related by consanguinity or
affinity who reside together or who formerly resided together or between individuals who
have a current or former dating relationship:
(i) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury or
serious bodily injury with or without a deadly weapon;
(ii) Placing, by physical menace or threat, another in fear of imminent serious bodily
injury;
(iii) Criminal sexual conduct committed against a minor within the meaning of Section
97-5-23;
(iv) Stalking within the meaning of Section 97-3-107;
(v) Cyberstalking within the meaning of Section 97-45-15; or
(vi) Sexual offenses within the meaning of Section 97-3-65 or 97-3-95.
“Abuse” does not include any act of self-defense.
(b) “Adult” means any person eighteen (18) years of age or older, or any person under
eighteen (18) years of age who has been emancipated by marriage.
(c) “Court” means the chancery court, justice court, municipal court or county court.
(d) “Dating relationship” means a social relationship of a romantic or intimate nature
between two (2) individuals; it does not include a casual relationship or ordinary
fraternization between two (2) individuals in a business or social context. Whether a
relationship is a “dating relationship” shall be determined by examining the following
factors:
(i) The length of the relationship;
(ii) The type of relationship; and
(iii) The frequency of interaction between the two (2) individuals involved in the
relationship.
(e) “Mutual protection order” means a protection order that includes provisions in favor
of both the individual seeking relief and the respondent.
2001 JURISDICTION
§ 93-21-5 Courts with jurisdiction to hear domestic abuse cases:
(1) The municipal, justice, county or chancery court, or a state military court as defined in
Section 33-13-151, shall have jurisdiction over proceedings under this chapter as
provided in this chapter.
§ 93-21-5 Right to relief not affected by leaving to avoid further abuse:
(1) . . . The petitioner's right to relief under this chapter shall not be affected by his
leaving the residence or household to avoid further abuse.
§ 93-21-5 Proper venue:
(2) Venue shall be proper in any county or municipality where the respondent resides or
in any county or municipality where the alleged abusive act or acts occurred. Any action
that originates in state military court as defined in Section 33-13-151 alleged against a
member of the Mississippi National Guard and brought in a state military court
proceeding as defined in Section 33-13-151 shall be the sole province of the Mississippi
National Guard, and venue shall only be proper for such action before a state military
court as defined in Section 33-13-151, and shall be subject to all the applicable laws,
procedures, rules and/or regulations as set forth in Title 33. The provisions of this
subsection shall not prohibit any person from bringing the same or similar action in
municipal, justice, county or chancery court.
§ 93-21-5 Transfer if court lacks proper venue:
(3) If a petition for an order for protection from domestic abuse is filed in a court lacking
proper venue, the court, upon objection of the respondent, shall transfer the action to the
appropriate venue pursuant to other applicable law.
§ 93-21-5 Record to be made of proceedings:
(4) A record shall be made of any proceeding in justice or municipal court that involves
domestic abuse.
Mississippi Attorney General’s opinions:
Records in domestic abuse protection cases.
“Section 93-21-5 of the Mississippi Code is amended to require that a record be made of
any proceedings involving a domestic abuse protection order in justice or municipal
court. What type of record is sufficient to satisfy this provision? . . . The filings, pleadings
and orders in a particular matter comprise the record for purposes of Miss. Code Ann.
Section 93-21-5.” Op. Atty. Gen. Bradley, July 13, 2009.
2002 FILING A PETITION ALLEGING DOMESTIC ABUSE
§ 93-21-7 Who may file:
(1) Any person may seek a domestic abuse protection order for himself by filing a petition
alleging abuse by the respondent. Any parent, adult household member, or next friend of
the abused person may seek a domestic abuse protection order on behalf of any minor
children or any person alleged to be incompetent by filing a petition with the court
alleging abuse by the respondent.
§ 93-21-7 Proceedings expedited:
(1) . . . Cases seeking relief under this chapter shall be priority cases on the court's docket
and the judge shall be immediately notified when a case is filed in order to provide for
expedited proceedings.
§ 93-21-7 Where petition may be filed:
(2) A petition seeking a domestic abuse protection order may be filed in any of the
following courts: municipal, justice, county or chancery, or a state military court as
defined in Section 33-13-151.
§ 93-21-7 When emergency relief may be filed in chancery court:
(2) . . . A chancery court shall not prohibit the filing of a petition which does not seek
emergency relief on the basis that the petitioner did not first seek or obtain temporary
relief in another court. A petition requesting emergency relief pending a hearing shall not
be filed in chancery court unless specifically permitted by the chancellor under the
circumstances or as a separate pleading in an ongoing chancery action between the
parties. Nothing in this section shall:
(a) Be construed to require consideration of emergency relief by a chancery court; or
(b) Preclude a chancery court from entering an order of emergency relief.
§ 93-21-7 Assessing costs:
(3) The petitioner in any action brought pursuant to this chapter shall not bear the costs
associated with its filing or the costs associated with the issuance or service of any notice
of a hearing to the respondent, issuance or service of an order of protection on the
respondent, or issuance or service of a warrant or witness subpoena. If the court finds
that the petitioner is entitled to an order protecting the petitioner from abuse, the court
shall be authorized to assess all costs including attorney's fees of the proceedings to the
respondent. The court may assess costs including attorney's fees to the petitioner only if
the allegations of abuse are determined to be without merit and the court finds that the
petitioner is not a victim of abuse as defined by Section 93-21-3.
§ 93-21-9 What the petition is to state:
(1) A petition filed under the provisions of this chapter shall state:
(a) Except as otherwise provided in this section, the name, address and county of
residence of each petitioner and of each individual alleged to have committed abuse;
(b) The facts and circumstances concerning the alleged abuse;
(c) The relationships between the petitioners and the individuals alleged to have
committed abuse; and
(d) A request for one or more domestic abuse protection orders.
§ 93-21-9 If a spouse is the alleged abuser:
(2) If a petition requests a domestic abuse protection order for a spouse and alleges that
the other spouse has committed abuse, the petition shall state whether or not a suit for
divorce of the spouses is pending and, if so, in what jurisdiction.
§ 93-21-9 If a former spouse is the alleged abuser:
(4) If a petitioner is a former spouse of an individual alleged to have committed abuse:
(a) A copy of the decree of divorce shall be attached to the petition; or
(b) The petition shall state the decree is currently unavailable to the petitioner and that a
copy of the decree will be filed with the court before the time for the hearing on the
petition.
§ 93-21-9 If a child is the alleged abused or abuser:
(5) If a petition requests a domestic abuse protection order for a child who is subject to
the continuing jurisdiction of a youth court . . . or a chancery court, or alleges that a child
who is subject to the continuing jurisdiction of a youth court . . . or chancery court has
committed abuse:
(a) A copy of the court orders affecting the custody or guardianship, possession and
support of or access to the child shall be filed with the petition; or
(b) The petition shall state that the orders affecting the child are currently unavailable to
the petitioner and that a copy of the orders will be filed with the court before the hearing
on the petition.
§ 93-21-9 If emergency relief is requested:
(6) If the petition includes a request for emergency relief pending a hearing, the petition
shall contain a general description of the facts and circumstances concerning the abuse
and the need for immediate protection.
§ 93-21-9 When petitioner’s address may be omitted:
(7) If the petition states that the disclosure of the petitioner's address would risk abuse of
the petitioner or any member of the petitioner's family or household, or would reveal the
confidential address of a shelter for domestic violence victims, the petitioner's address
may be omitted from the petition. If a petitioner's address has been omitted from the
petition pursuant to this subsection and the address of the petitioner is necessary to
determine jurisdiction or venue, the disclosure of such address shall be made orally and in
camera. A nonpublic record containing the address and contact information of a
petitioner shall be maintained by the court to be utilized for court purposes only.
Mississippi Attorney General’s opinions:
Maintaining non-public records of address and contact information.
“Section 93-21-9(7) of the Mississippi Code, which addresses petitions seeking
protection from domestic abuse, is amended to require the court to maintain a non-public
record of address and contact information of the victim in situations where the victim is
not required, for safety reasons, to include this information in the petition. How should
the courts maintain this non-public record, and for what purposes may this information be
disclosed? . . . A separate confidential file shall be maintained by the court clerk in which
the non-public address and contact information of victims of domestic violence is to be
kept. The information shall not be made available to the general public.” Op. Atty. Gen.
Bradley, July 13, 2009.
§ 93-21-9 Petition to be signed under oath:
(8) Every petition shall be signed by the petitioner under oath that the facts and
circumstances contained in the petition are true to the best knowledge and belief of the
petitioner.
§ 93-21-11 When hearing is to be conducted:
(1) Within ten (10) days of the filing of a petition under the provisions of this chapter, the
court shall hold a hearing, at which time the petitioner must prove the allegation of abuse
by a preponderance of the evidence.
§ 93-21-11 Personal service of process required:
(2) The respondent shall be given notice of the filing of any petition and of the date, time
and place set for the hearing by personal service of process. A court may conduct a
hearing in the absence of the respondent after first ascertaining that the respondent was
properly noticed of the hearing date, time and place.
Mississippi Attorney General’s opinion:
On conducting hearing by interactive audio-visual device.
While the court may be able to consider petitions for emergency relief provided in
Section 93-21-13 electronically, it is the opinion of this office that it would be a rather
rare situation in which a court would be able to effectively have an entire hearing
prescribed in Section 93-21-11 telephonically or remotely. Rule 611(a)(3) of the
Mississippi Rules of Evidence states that the court must exercise reasonable control to
protect witnesses from harassment or undue embarrassment. There are many things to
consider when determining whether or not to conduct the court's business via electronic
means, including the veracity of witness testimony, credibility of evidence, and the
opportunity for interference or coercive behavior. Op. Atty. Gen. Adams, October 16,
2019.
What constitutes personal service.
“Personal service means delivery of the documents to the person as provided by MRCP
4(d)(1), or by MS Code Ann. Section 13-3-5.” Op. Atty. Gen. Bradley, July 13, 2009.
2003 REQUEST FOR EMERGENCY RELIEF
§ 93-21-13 Request to be expedited:
(1)(a) The court in which a petition seeking emergency relief pending a hearing is filed
must consider all such requests in an expedited manner and shall not refer or direct the
matter to be sent to another court. The court may issue an emergency domestic abuse
protection order without prior notice to the respondent upon good cause shown by the
petitioner. Immediate and present danger of abuse to the petitioner, any minor children or
any person alleged to be incompetent shall constitute good cause for issuance of an
emergency domestic abuse protection order. The respondent shall be provided with notice
of the entry of any emergency domestic abuse protection order issued by the court by
personal service of process.
. . .
(4) An emergency domestic abuse protection order issued under this section is effective in
this state, in all other states, and in United States territories and tribal lands. A court shall
not limit the scope of a protection order to the boundaries of the State of Mississippi or to
the boundaries of a municipality or county within the State of Mississippi.
§ 93-21-13 Emergency relief that may be granted:
(1)(b) A court granting an emergency domestic abuse protection order may grant relief as
provided in Section 93-21-15(1)(a).
§ 93-21-13 Duration of the order:
(1)(c) An emergency domestic abuse protection order shall be effective for ten (10) days,
or until a hearing may be held, whichever occurs first. If a hearing under this subsection
(1) is continued, the court may grant or extend the emergency order as it deems necessary
for the protection of the abused person. A continuance under this subsection (1)(c) shall
be valid for no longer than twenty (20) days.
§ 93-21-13 Standardized forms for emergency protection orders:
(2) The Attorney General, in cooperation with the Mississippi Supreme Court and the
Mississippi Judicial College, shall develop standardized forms for emergency domestic
abuse protection orders. Use of the standardized forms in protection order proceedings
pursuant to this chapter shall be fully implemented by all courts no later than July 1,
2015. However, in any criminal prosecution or contempt proceeding for a violation of a
domestic abuse protection order, it shall not be a defense that the order was not issued on
the standardized form.
§ 93-21-13 Orders to be entered in the Mississippi Protection Order Registry:
(3) Upon issuance of any protection order by the court, the order shall be entered in the
Mississippi Protection Order Registry by the clerk of the court pursuant to Section
93–21–25, and a copy shall be provided to the sheriff's department in the county of the
court of issuance.
§ 93-21-17 Other relief provided by law not precluded:
(1) The granting of any relief authorized under this chapter shall not preclude any other
relief provided by law.
See also Miss. Code Ann. § 93-21-29 (“Any proceeding under this chapter shall be in
addition to other available civil or criminal remedies.”).
§ 93-21-17 Title to real property not affected:
(3) No order or agreement under this chapter shall in any manner affect title to any
real property.
2004 REQUEST FOR TEMPORARY RELIEF
§ 93-21-15 Temporary relief that may be granted:
(1)(a) After a hearing is held as provided in Section 93-21-11 for which notice and
opportunity to be heard has been granted to the respondent, and upon a finding that the
petitioner has proved the existence of abuse by a preponderance of the evidence, the
municipal and justice courts shall be empowered to grant a temporary domestic abuse
protection order to bring about a cessation of abuse of the petitioner, any minor children,
or any person alleged to be incompetent. The relief the court may provide includes, but is
not limited to, the following:
(i) Directing the respondent to refrain from abusing the petitioner, any minor children, or
any person alleged to be incompetent;
(ii) Prohibiting or limiting respondent's physical proximity to the abused or other
household members as designated by the court, including residence and place of work;
(iii) Prohibiting or limiting contact by the respondent with the abused or other household
members designated by the court, whether in person, by telephone or by other electronic
communication;
(iv) Granting possession to the petitioner of the residence or household to the exclusion
of the respondent by evicting the respondent or restoring possession to the petitioner, or
both; or
(v) Prohibiting the transferring, encumbering or otherwise disposing of property mutually
owned or leased by the parties, except when in the ordinary course of business.
See also Waite v. Adkisson, 282 So. 3d 744, 747 n.1 (Miss. Ct. App. 2019) (“Subsection
(1) of Mississippi Code Annotated section 93-21-15 authorizes a justice or municipal
court to grant a temporary domestic abuse protection order after the respondent is
afforded notice and an opportunity to be heard. A decision by a justice court or municipal
court granting or denying a temporary order is subject to de novo review by a chancery
court or county court. Miss. Code Ann. § 93-21-15(1)(c).”).
§ 93-21-15 Terms of the protection order to be specific:
(3) Every domestic abuse protection order issued pursuant to this section shall set forth
the reasons for its issuance, shall contain specific findings of fact regarding the existence
of abuse, shall be specific in its terms and shall describe in reasonable detail the act or
acts to be prohibited. No mutual protection order shall be issued unless that order is
supported by an independent petition by each party requesting relief pursuant to this
chapter, and the order contains specific findings of fact regarding the existence of abuse
by each party as principal aggressor, and a finding that neither party acted in self defense.
§ 93-21-15 Duration of the protection order:
(1)(b) The duration of any temporary domestic abuse protection order issued by a
municipal or justice court shall not exceed thirty (30) days. However, if the party to be
protected and the respondent do not have minor children in common, the duration of the
temporary domestic abuse protection order may exceed thirty (30) days but shall not
exceed one (1) year.
§ 93-21-15 Standardized forms for temporary protection orders:
(4) The Attorney General, in cooperation with the Mississippi Supreme Court and the
Mississippi Judicial College, shall develop standardized forms for temporary and final
domestic abuse protection orders. The use of standardized forms in protection order
proceedings pursuant to this chapter shall be fully implemented by all courts no later than
July 1, 2015. However, in any criminal prosecution or contempt proceeding for a
violation of a domestic abuse protection order, it shall not be a defense that the order was
not issued on the standardized form.
§ 93-21-15 Orders to be entered in the Mississippi Protection Order Registry:
(5) Upon issuance of any protection order by the court, the order shall be entered in the
Mississippi Protection Order Registry by the clerk of the court pursuant to Section
93–21–25, and a copy shall be provided to the sheriff's department in the county of the
court of issuance.
§ 93-21-15 Modifying, amending, or dissolving a protection order:
(6) Upon subsequent petition by either party and following a hearing of which both
parties have received notice and an opportunity to be heard, the court may modify,
amend, or dissolve a domestic abuse protection order previously issued by that court.
See also Miss. Code Ann. § 93-21-17(2) (“The court may amend its order or agreement at
any time upon subsequent petition filed by either party. Protective orders issued under
the provisions of this chapter may only be amended by approval of the court.”).
Scope of a protection order:
§ 93-21-15
(7) A domestic abuse protection order issued under this section is effective in this state, in
all other states, and in United States territories and tribal lands. A court shall not limit the
scope of a protection order to the boundaries of the State of Mississippi or to the
boundaries of a municipality or county within the State of Mississippi.
De novo appeal:
§ 93-21-15
(1)(c) Procedures for an appeal of the issuance of a temporary domestic abuse protection
order are set forth in Section 93–21–15.1.
§ 93-21-15.1
(1)(a) De novo appeal. Any party aggrieved by the decision of a municipal or justice court
judge to issue a temporary domestic abuse protection order has the right of a trial de novo
on appeal in the chancery court having jurisdiction. The trial de novo shall be held within
ten (10) days of the filing of a notice of appeal. All such appeals shall be priority cases
and the judge must be immediately notified when an appeal is filed in order to provide for
expedited proceedings. The appeal will proceed as if a petition for an order of protection
from domestic abuse had been filed in the chancery court. Following the trial de novo, if
the petitioner has proved the existence of abuse by a preponderance of the evidence, the
chancery court may grant a final domestic abuse protection order. In granting a final
domestic abuse protection order, the chancery court may provide for relief that includes,
but is not limited to, the relief set out in Section 93–21–15(2).
(b) Notice of appeal. The party desiring to appeal a decision from municipal or justice
court must file a written notice of appeal with the chancery court clerk within ten (10)
days of the issuance of a domestic abuse protection order. In all de novo appeals, the
notice of appeal and payment of costs must be simultaneously filed and paid with the
chancery clerk. Costs for an appeal by trial de novo shall be calculated as specified in
subsection (4) of this section. The written notice of appeal must specify the party or
parties taking the appeal and must designate the judgment or order from which the appeal
is taken. A copy of the notice of appeal must be provided to all parties or their attorneys
of record and to the clerk of the court from which the appeal is taken. A certificate of
service must accompany the written notice of appeal. Upon receipt by the municipal or
justice court of the notice of appeal, the clerk of the lower court shall immediately
provide the entire court file to the chancery clerk.
. . .
(3) Supersedeas. The perfecting of an appeal, whether on the record or by trial de novo,
does not act as a supersedeas. Any domestic abuse protection order issued by a municipal,
justice or county court shall remain in full force and effect for the duration of the appeal,
unless the domestic abuse protection order otherwise expires due to the passage of time.
(4) Cost bond. In all appeals under this section, unless the court allows an appeal in forma
pauperis or the appellant otherwise qualifies for exemption as specified in this subsection
(4), the appellant shall pay all court costs incurred below and likely to be incurred on
appeal as estimated by the chancery clerk. In all cases where the appellant is appealing the
denial of an order of protection from domestic abuse by a county court, the appellant shall
not be required to pay any costs associated with the appeal, including service of process
fees, nor shall the appellant be required to appeal in forma pauperis. In such
circumstances, the court may assess costs of the appeal to the appellant if the court finds
that the allegations of abuse are without merit and the appellant is not a victim of abuse.
Where the issuance of a mutual protection order is the basis of the appeal, the appellant
may be entitled to reimbursement of appellate costs paid to the court as a matter of equity
if the chancery court finds that the mutual order was issued by the lower court without
regard to the requirements of Section 93–21–15(3).
(5) The appellate procedures set forth in this section for appeals from justice, municipal
and county courts shall control if there is a conflict with another statute or rule.
(6) Any party aggrieved by the issuance or denial of a final order of protection by a
chancery court shall be entitled to appeal the decision. The appeal shall be governed by
the Mississippi Rules of Appellate Procedure and any other applicable rules or statutes.
§ 93-21-17 Other relief provided by law not precluded:
(1) The granting of any relief authorized under this chapter shall not preclude any other
relief provided by law.
See also Miss. Code Ann. § 93-21-29 (“Any proceeding under this chapter shall be in
addition to other available civil or criminal remedies.”).
§ 93-21-17 Title to real property not affected:
(3) No order or agreement under this chapter shall in any manner affect title to any
real property.
§ 93-21-9 Divorce decree may supercede protection order:
(3) Any temporary or permanent decree issued in a divorce proceeding subsequent to an
order issued pursuant to this chapter may, in the discretion of the chancellor hearing the
divorce proceeding, supersede in whole or in part the order issued pursuant to this
chapter.
2005 EVIDENTIARY MATTERS
MRE 504 Exceptions to spousal privilege:
(d) Exceptions. The privilege does not apply:
(1) in a civil case between the spouses; or
(2) in a criminal case when one spouse is charged with a crime against:
(A) the person of a minor child; or
(B) the person or property of:
(i) the other spouse;
(ii) a resident of either spouse's household; or
(iii) a third person when committed during a crime against any person described in
paragraphs (d)(1) and (2).
§ 93-21-19 No spousal disqualification:
There shall be no restrictions concerning a spouse testifying against his spouse in any
hearing under the provisions of this chapter.
2006 PROTECTION ORDERS FROM ANOTHER JURISDICTION
Protection order defined:
The Uniform Interstate Enforcement of Domestic Violence Protection Orders Act defines
“protection order” as: “[A]n injunction or other order, issued by a tribunal under the
domestic violence laws, family violence laws or anti-stalking laws of the issuing state, to
prevent an individual from engaging in violent or threatening acts against, harassment of,
contact or communication with, or physical proximity to another individual.” See Miss.
Code Ann. § 93-22-3(e).
§ 93-21-16 Full faith and credit:
(1) A protective order from another jurisdiction issued to protect the applicant from abuse
as defined in Section 93-21-3, or a protection order as defined in Section 93-22-3, issued
by a tribunal of another state shall be accorded full faith and credit by the courts of this
state and enforced in this state as provided for in the Uniform Interstate Enforcement of
Domestic Violence Protection Orders Act.
. . .
(3) For purposes of judicial enforcement of a protective order issued in another
jurisdiction, or a protection order as defined in Section 93-22-3 and issued by a tribunal
of another state, an order is presumed valid if it meets the requirements of Section
93-22-5(4). It is an affirmative defense in any action seeking enforcement of a protective
order issued in another jurisdiction, or a protection order as defined in Section 93-22-3
and issued by a tribunal of another state, that any criteria for the validity of the order is
absent.
2007 PENALTIES FOR VIOLATING A PROTECTION ORDER
§ 93-21-21 Knowing violation is a misdemeanor:
(1) Upon a knowing violation of (a) a protection order or court-approved consent
agreement issued pursuant to this chapter, (b) a similar order issued by a foreign court of
competent jurisdiction for the purpose of protecting a person from domestic abuse, or a
similar order by a state military court as defined in Section 33-13-151, or (c) a bond
condition imposed pursuant to Section 99–5–37, the person violating the order or
condition commits a misdemeanor punishable by imprisonment in the county jail for not
more than six (6) months or a fine of not more than One Thousand Dollars ($1,000.00),
or both.
Mississippi Attorney General’s opinions:
Violation of protective order chargeable as a misdemeanor or contempt.
“[A] proceeding to secure a domestic abuse protective order would be a purely civil action.
A subsequent proceeding based upon an alleged violation of the protective order may
either be purely criminal, in the instant that the violator is charged with a misdemeanor, or
quasi-criminal, if the court determines that the violator is in contempt and imposes jail
time as a penalty for that violation.” Op. Atty. Gen. Shirley, August 15, 2008.
§ 93-21-21 Alternatively, a knowing violation is contempt:
(2) Alternatively, upon a knowing violation of a protection order or court-approved
consent agreement issued pursuant to this chapter or a bond condition issued pursuant to
Section 99–5–37, the issuing court may hold the person violating the order or bond
condition in contempt, the contempt to be punishable as otherwise provided by applicable
law. A person shall not be both convicted of a misdemeanor and held in contempt for the
same violation of an order or bond condition.
§ 93-21-21 Officers to utilize uniform offense report:
(3) When investigating allegations of a violation under subsection (1) of this section, law
enforcement officers shall utilize the uniform offense report prescribed for this purpose
by the Office of the Attorney General in consultation with the sheriff's and police chief's
associations. However, failure of law enforcement to utilize the uniform offense report
shall not be a defense to a crime charged under subsection (1) of this section.
§ 93-21-21 Court to enter disposition into uniform offense report:
(4) In any conviction for a violation of a domestic abuse protection order as described in
subsection (1) of this section, the court shall enter the disposition of the matter into the
corresponding uniform offense report.
§ 93-21-21 On construing bond condition violations:
(5) Nothing in this section shall be construed to interfere with the court's authority, if any,
to address bond condition violations in a more restrictive manner.
2008 REPORTING DOMESTIC ABUSE OR REQUESTING ASSISTANCE
§ 93-21-23 Immunity in reporting domestic abuse:
Any licensed doctor of medicine, licensed doctor of dentistry, intern, resident or
registered nurse, psychologist, social worker, family protection worker, family protection
specialist, preacher, teacher, attorney, law enforcement officer, or any other person or
institution participating in the making of a report pursuant to this chapter or participating
in judicial proceedings resulting therefrom shall be presumed to be acting in good faith,
and if found to have acted in good faith shall be immune from any liability, civil or
criminal, that might otherwise be incurred or imposed. The reporting of an abused person
shall not constitute a breach of confidentiality.
§ 93-21-27 Law enforcement officer immunity:
A law enforcement officer shall not be held liable in any civil action for an arrest based
on probable cause, enforcement in good faith of a court order, or any other action or
omission in good faith under this chapter arising from an alleged domestic violence
incident brought by any authorized party, or an arrest made in good faith pursuant to
Section 99-3-7(3), or failure, in good faith, to make an arrest pursuant to Section
99-3-7(3).
§ 93-21-28 Request for local law enforcement assistance:
(1) A person who alleges that he or she or a minor child has been the victim of domestic
violence may request the assistance of a local law enforcement agency. The local law
enforcement agency shall respond to the request for assistance. The local law
enforcement officer responding to the request for assistance shall take whatever steps are
reasonably necessary to protect the complainant from harm and shall advise the
complainant of sources of shelter, medical care, counseling and other services. Upon
request by the complainant and where feasible, the law enforcement officer shall transport
the complainant to appropriate facilities such as hospitals or public or private facilities for
shelter and accompany the complainant to his or her residence, within the jurisdiction in
which the request for assistance was made, so that the complainant may remove food,
clothing, medication and such other personal property as is reasonably necessary to
enable the complainant and any minor children who are presently in the care of the
complainant to remain elsewhere pending further proceedings.
(2) In providing the assistance authorized by subsection (1), no officer may be held
criminally or civilly liable on account of reasonable measures taken under authority of
subsection (1).
§ 93-21-29 Remedy supplemental:
Any proceeding under this chapter shall be in addition to other available civil or criminal
remedies.
2009 MISSISSIPPI PROTECTIVE ORDER REGISTRY
§ 93–21–25 Clerk to entered orders within 24 hours:
(1) In order to provide a statewide registry for protection orders and to aid law
enforcement, prosecutors and courts in handling such matters, the Attorney General is
authorized to create and administer a Mississippi Protection Order Registry. The Attorney
General's office shall implement policies and procedures governing access to the registry
by authorized users, which shall include provisions addressing the confidentiality of any
information which may tend to reveal the location or identity of a victim of domestic
abuse.
(2) All orders issued pursuant to Sections 93–21–1 through 93–21–29, 97–3–7(11),
97–3–65(6) or 97–3–101(5) will be maintained in the Mississippi Protection Order
Registry. It shall be the duty of the clerk of the issuing court to enter all civil and criminal
domestic abuse protection orders and all criminal sexual assault protection orders,
including any modifications, amendments or dismissals of such orders, into the
Mississippi Protection Order Registry within twenty-four (24) hours of issuance with no
exceptions for weekends or holidays. A separate copy of any order shall be provided to
the sheriff's department TAC officers of the county of the issuing court. The copy may be
provided in electronic format. Each qualifying protection order submitted to the
Mississippi Protection Order Registry shall be automatically transmitted to the National
Criminal Information Center Protection Order File. Failure of the clerk to enter the order
into the registry or to provide a copy of the order to law enforcement shall have no effect
on the validity or enforcement of an otherwise valid protection order.
Any information regarding the registration or issuance of a civil or criminal domestic
abuse protection order or a criminal sexual assault protection order, or the filing of a
petition for a civil domestic abuse protection order which is maintained in the Mississippi
Protection Order Registry and would tend to reveal the identity or location of the
protected person(s) shall not constitute a public record and shall be exempt from
disclosure pursuant to the Mississippi Public Records Act of 1983. This information may
be disclosed to appropriate law enforcement, prosecutors or courts for protection order
enforcement purposes.
2010 DOMESTIC VIOLENCE LEGAL FORMS
Domestic Violence Legal Forms may be accessed at the Official site of the Mississippi
Attorney General’s Office, which is http://www.ago.state.ms.us/. See also Miss. Code
Ann. §§ 93-21-9; -13; -15.
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CHAPTER 21
CONTEMPT OF COURT
2100 CONTEMPT PROCEEDINGS UNDER THE MISSISSIPPI RULES OF CRIMINAL
PROCEDURE
Applicability; indirect and direct contempt defined; criminal and civil contempt
defined
Direct contempt
Indirect criminal contempt; commencement; prosecution
Indirect civil contempt
Further proceedings
Bail
2101 STATUTES ON CONTEMPT OF COURT
Rules prevail over conflicting statutory procedures
Statutory authority
Pretrial intervention to collect unpaid restitution and fines
Contempt for default
Imprisonment for contempt
Relief from payments
2102 CASE LAW ON CONTEMPT OF COURT
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2100 CONTEMPT PROCEEDINGS UNDER THE MISSISSIPPI RULES OF CRIMINAL
PROCEDURE
MRCrP 32.1 Applicability; indirect and direct contempt defined; criminal and civil
contempt defined:
(a) Applicability. Rule 32 applies to both civil and criminal contempt arising in a criminal
action.
(b) Indirect Contempt. “Indirect contempt,” also known as “constructive contempt,”
means any contempt other than a direct contempt.
(c) Direct Contempt. “Direct contempt” means contempt committed:
(1) in the presence of the judge presiding in court; or
(2) so near to the judge as to interrupt the court's proceedings.
(d) Criminal Contempt. “Criminal contempt” means either:
(1) misconduct of a person that obstructs the administration of justice and that is
committed either in the presence of the judge presiding in court or so near thereto as to
interrupt its proceedings;
(2) willful disobedience or resistance of any person to a court's lawful writ, subpoena,
process, order, rale, or command, where the primary purpose of the finding of contempt is
to punish the contemner; or
(3) any other willfully contumacious conduct which obstructs the administration of
justice, or which lessens the dignity and authority of the court.
(e) Civil Contempt. “Civil contempt” means willful, continuing failure or refusal of any
person to comply with a court's lawful writ, subpoena, process, order, rale or command
that by its nature is still capable of being complied therewith.
MRCrP 32.2 Direct contempt:
(a) Summary Imposition of Sanctions. The court against which a direct civil or criminal
contempt has been committed may summarily impose sanctions on the person who
committed it if:
(1) the presiding judge has personally perceived the conduct constituting the contempt
and has personal knowledge of the identity of the person committing it;
(2) the contempt has interrupted the order of the court or interfered with the dignified
conduct of the court's business; and
(3) the punishment imposed does not exceed thirty (30) days incarceration or a fine of
One-Hundred Dollars ($100,00).
The court shall afford the alleged contemnor an opportunity, consistent with the
circumstances then existing, to present exculpatory or mitigating evidence. If the court
summarily finds and announces on the record that direct contempt has been committed,
the court may defer imposition or execution of sanctions until the conclusion of the
proceeding during which the contempt was committed.
(b) Order of Contempt. Either before sanctions are imposed, or promptly thereafter, the
court shall issue a written order stating, or shall state on the record, that a direct contempt
has been committed and specifying:
(1) whether the contempt is civil or criminal;
(2) the evidentiary facts known to the court from the judge's own personal knowledge
concerning the conduct constituting the contempt and, regarding any relevant evidentiary
facts not so known, the basis of the court's findings;
(3) the sanction imposed for the contempt;
(4) in the case of civil contempt, how the contempt may be purged; and
(5) in the case of criminal contempt, if the sanction is incarceration, a determinate term.
(c) Review and Record.
(1) Review. The contemnor may seek review by appeal or by writ of habeas corpus, if
appropriate.
(2) Record. The appellate record in cases of direct contempt in which sanctions have been
summarily imposed shall consist of:
(1) the order of contempt; and, if the proceeding during which the contempt occurred was
recorded, a transcript of that part of the proceeding; and
(2) any evidence admitted in the proceeding.
(d) No Summary Imposition of Sanctions. In any proceeding involving a direct contempt
for which the court determines not to impose sanctions summarily, the judge shall issue a
written order specifying the evidentiary facts within the personal knowledge of the judge
respecting the conduct constituting the contempt and the identity of the contemnor.
Thereafter, the proceeding shall be conducted pursuant to Rule 32.3 or Rule 32.4,
whichever is applicable, and Rule 32.5 in the same manner as an indirect contempt.
MRCrP 32.3 Indirect criminal contempt; commencement; prosecution:
(a) Nature of the Proceedings. All criminal contempts not adjudicated pursuant to Rule
32.2 shall be prosecuted by means of a written motion or on the court's own initiative.
(b) Disqualification of the Judge. Indirect criminal contempt charges shall be heard by a
judge other than the trial judge.
MRCrP 32.4 Indirect civil contempt:
(a) Commencement. A civil contempt proceeding may be commenced by the filing of a
motion for contempt with the clerk of the court whose order or judgment is claimed to
have been violated. No filing fee shall be required in connection with the filing of the
motion for civil contempt. The proceeding shall be considered part of the action out of
which the contempt arose.
(b) Contents of the Motion. The motion for civil contempt shall contain:
(1) a statement of the order or judgment involved, or a copy thereof, if available, and the
name of the issuing judge where appropriate;
(2) the case caption and the docket number of the case;
(3) a short, concise statement of the facts on which the asserted contempt is based; and
(4) a request for the issuance of a summons as specified below.
The motion for civil contempt shall be verified or supported by affidavits.
(c) Summons. The summons shall issue only on a judge's order and shall direct the parties
to appear before the court at a date and time certain for the purpose(s) specifically stated
therein of:
(1) scheduling a trial;
(2) considering whether and when the filing of an answer is necessary;
(3) considering whether discovery is necessary;
(4) holding a hearing on the merits of the motion; or
(5) considering such other matters or performing such other acts as the court may deem
appropriate.
A hearing on the merits of the motion shall be held not less than seven (7) days after
service of the summons.
(d) Service of the Summons and Motion. The following shall be served upon the alleged
contemnor:
(1) a copy of the summons;
(2) a copy of the motion for civil contempt;
(3) a copy of the accompanying affidavits; and
(4) if incarceration to compel compliance is sought, notice to the alleged contemnor in the
following form:
TO THE PERSON ALLEGED TO BE IN CONTEMPT OF COURT:
1. It is alleged that you have disobeyed a court order, are in contempt of court, and should
go to jail until you obey the court's order.
2. You have the right to have a lawyer. If you already have a lawyer, you should consult
the lawyer at once, If you do not now have a lawyer, please note:
(a) A lawyer can be helpful to you by:
(1) explaining the allegations against you;
(2) helping you determine and present any defense to those allegations;
(3) explaining to you the possible outcomes; and
(4) helping you at the hearing.
(b) Even if you do not plan to contest that you are in contempt of court, a lawyer can be
helpful.
(c) If you want a lawyer but do not have the money to hire one, you may ask the court to
appoint one for you.
3. IF YOU DO NOT APPEAR FOR A SCHEDULED COURT HEARING BEFORE
THE JUDGE, YOU WILL BE SUBJECT TO ARREST.
MRCrP 32.5 Further proceedings:
(a) Consolidation of Criminal and Civil Contempts. If a person has been charged with
more than one (1) contempt pursuant to Rule 32.3, Rule 32.4, or both, the court may
consolidate the proceedings for hearing and disposition.
(b) When Judge Disqualified. A judge who enters an order pursuant to Rule 32.2(d),
institutes an indirect contempt proceeding on the court's own initiative pursuant to Rule
32.3 or Rule 32.4, or reasonably expects to be called as a witness at any hearing on the
matter, is disqualified from sitting at the hearing.
(c) Failure to Appear at Hearing.
(1) Generally. If, after proper notice, the alleged contemnor fails to appear personally at
the time and place set by the court, the court may enter an order directing the alleged
contemnor be taken into custody and brought before the court or judge designated in the
order.
(2) Civil Contempt. If, after proper notice, the alleged contemnor in a civil contempt
proceeding fails to appear in person or by counsel at the time and place set by the court,
the court may proceed in the alleged contemnor's absence.
(d) Disposition. When a court makes a finding of contempt, the court shall issue a written
order that specifies the sanction imposed for the contempt. In the case of a civil contempt,
the order shall specify how the contempt may be purged. In the case of a criminal
contempt, if the sanction is incarceration, the order shall specify a determinate term.
MRCrP 32.6 Bail:
A contemner incarcerated for contempt is entitled to the same consideration with respect
to bail pending appeal as a defendant convicted in a criminal proceeding, as provided by
law.
2101 STATUTES ON CONTEMPT OF COURT
Rules prevail over conflicting statutory procedures:
See Jones v. City of Ridgeland, 48 So. 3d 530, 537 (Miss. 2010) (“Procedure is defined as
‘[t]he mode of proceeding by which a legal right is enforced, as distinguished from the
substantive law which gives or defines the rights, and which, by means of the
proceedings, the court is to administer; the machinery, as distinguished from its product.’
Black's Law Dictionary 1203-04 (6th ed.1990).”); Newell v. State, 308 So. 2d 71, 76
(Miss. 1975) (“We are keenly aware of, and measure with great respect, legislative
suggestions concerning procedural rules and they will be followed unless determined to
be an impediment to justice or an impingement upon the constitution. The inherent power
of this Court to promulgate procedural rules emanates from the fundamental
constitutional concept of the separation of powers and the vesting of judicial powers in
the courts.”); Southern Pac. Lumber Co. v. Reynolds, 206 So. 2d 334, 335 (Miss. 1968)
(“The phrase ‘judicial power’ in section 144 of the Constitution includes the power to
make rules of practice and procedure, not inconsistent with the Constitution, for the
efficient disposition of judicial business.”).
§ 21-23-7 Statutory authority:
(11) The municipal court shall have the power to impose punishment of a fine of not
more than One Thousand Dollars ($1,000.00) or six (6) months' imprisonment, or both,
for contempt of court.
§ 99-15-109 Pretrial intervention to collect unpaid restitution and fines:
Notwithstanding any other provision of this section, in all criminal cases wherein an
offender has been held in contempt of court for failure to pay fines or restitution, the
offender may be placed in pretrial intervention for the purpose of collecting unpaid
restitution and fines regardless of any prior criminal conviction, whether felony or
misdemeanor.
§ 99-37-7 Contempt for default:
(1) Subject to the provisions of Section 99-19-20.1, when a defendant sentenced to pay a
fine or to make restitution defaults in the payment thereof or of any installment, the court,
on motion of the district attorney, or upon its own motion, may require him to show cause
why his default should not be treated as contempt of court, and may issue a show cause
citation or a warrant of arrest for his appearance.
(2) Subject to the provisions of Section 99-19-20.1, unless the defendant shows that his
default was not attributable to an intentional refusal to obey the order of the court or to a
failure on his part to make a good faith effort to make the payment, the court may find
that his default constitutes contempt and may order him committed until the fine or the
restitution, or a specified part thereof, is paid.
(3) A judicial officer shall not be held criminally or civilly liable for failure of any
defendant to pay any fine or to make restitution if the officer exercises his judicial
authority in accordance with subsections (1) and (2) of this section to require the payment
of such fine or restitution.
(4) When a fine or an order of restitution is imposed on a corporation or unincorporated
association, it is the duty of the person authorized to make disbursement from the assets
of the corporation or association to pay the fine or make the restitution from those assets,
and his failure to do so may be held to be contempt unless he makes the showing required
in subsection (2) of this section.
§ 99-37-9 Imprisonment for contempt:
The term of imprisonment for contempt for failure to make restitution shall be set forth in
the commitment order, and shall not exceed one (1) day for each twenty-five dollars
($25.00) of the restitution, or thirty (30) days if the order of the restitution was imposed
upon conviction of a violation or misdemeanor, or one (1) year in any other case,
whichever is the shorter period. A person committed for failure to make restitution shall
be given credit toward payment for each day of imprisonment at the rate specified in the
commitment order.
§ 99-37-11 Relief from payments:
If it appears to the satisfaction of the court that the default in the payment of a fine or
restitution is not contempt, the court may enter an order allowing the defendant additional
time for payment, reducing the amount thereof or of each installment or revoking the fine
or order of restitution or the unpaid portion thereof in whole or in part.
2102 CASE LAW ON CONTEMPT OF COURT
United States Supreme Court cases:
Bearden v. Georgia, 461 U.S. 660, 672 (1983) (“If the probationer could not pay despite
sufficient bona fide efforts to acquire the resources to do so, the court must consider
alternate measures of punishment other than imprisonment. Only if alternate measures
are not adequate to meet the State's interests in punishment and deterrence may the court
imprison a probationer who has made sufficient bona fide efforts to pay.”).
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’”).
Mayberry v. Pennsylvania, 400 U.S. 455, 463-66 (1970) (“Many of the words leveled at
the judge in the instant case were highly personal aspersions, even ‘fighting words’-‘dirty
sonofabitch’, ‘dirty tyrannical old dog,’ ‘stumbling dog,’ and ‘fool.’ He was charged with
running a Spanish Inquisition and told to ‘Go to hell’ and ‘Keep your mouth shut.’ Insults
of that kind are apt to strike ‘at the most vulnerable and human qualities of a judge's
temperament.’ . . . In the present case, [the Due Process Clause] can be satisfied only if . .
. another judge, not bearing the sting of these slanderous remarks and having the
impersonal authority of the law, sits in judgment on the conduct of petitioner as shown by
the record.”).
Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 441 (1911). (“Contempts are
neither wholly civil nor altogether criminal. . . . If it is for civil contempt the punishment
is remedial, and for the benefit of the complainant. But if it is for criminal contempt the
sentence is punitive, to vindicate the authority of the court.”).
In re Terry, 128 U.S. 289, 303 (1888) (“‘The power to punish for contempt is inherent in
the nature and constitution of a court. It is a power not derived from any statute, but
arising from necessity; implied, because it is necessary to the exercise of all other
powers.’ Without such power, . . . the administration of the law would be in continual
danger of being thwarted by the lawless.”).
Ex parte Robinson, 86 U.S. 505, 510 (1873) (“The power to punish for contempts is
inherent in all courts; its existence is essential to the preservation of order in judicial
proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and
consequently to the due administration of justice.”).
Mississippi cases:
In re McDonald, 98 So. 3d 1040, 1044 (Miss. 2012) (“Since Chancellor Harris initiated
the constructive criminal contempt proceedings, he was required to recuse himself and
have the hearings conducted by another judge.”).
Corr v. State, 97 So. 3d 1211, 1215 (Miss. 2012) (“This Court repeatedly has found that a
judge who initiates constructive contempt proceedings has substantial personal
involvement and must recuse himself.”).
Graves v. State, 66 So. 3d 148, 154 (Miss. 2011) (“Judge Smith was the complainant for
alleged criminal contempt that occurred, at least in part, outside his presence, so Graves
was entitled to due-process notice and a hearing.”).
Dennis v. Dennis, 824 So. 2d 604, 609 (Miss. 2002) (“A defendant in contempt
proceedings is entitled to notice and is entitled to be informed of the nature and cause of
the accusation, of his rights to be heard, to counsel, to call witnesses, to an unbiased
judge, to a jury trial, and against self-incrimination, and that he is presumed innocent until
proven guilty beyond reasonable doubt.”).
Illinois Central Railroad Company v. Winters, 815 So. 2d 1168, 1180 (Miss. 2002)
(“[T]he distinction between criminal and civil contempt generally turns on two factors.
First, a criminal contempt charge typically carries a fixed sentence or fine, while a civil
contemnor “carries the keys to his prison in his own pocket” through his ability to comply
with the court's orders and end his sentence. Second, in criminal contempt, the court is
the aggrieved party, so the fine is paid to the court. In civil contempt, the opposing party
is the aggrieved party and the one who is paid.”).
Brame v. State, 755 So. 2d 1090, 1094 (Miss. 2000) (“Gross negligence does not rise to
the level of willful conduct which is required to support a finding of criminal contempt.”).
Shields v. State, 702 So. 2d 380, 385 (Miss. 1997) (“[T]he defendant's conduct [in calling
the judge a ‘cold blooded, cruel perverted bastard’ and accusing him of taking pay-offs]
was directed at the judge in his judicial capacity. Such conduct is unexcusable and it
offends the dignity and authority of the court. The defendant was indeed guilty of [direct
contempt of court] beyond a reasonable doubt.”).
Lamar v. State, 607 So. 2d 129, 130 (Miss. 1992) (“In the “immediate area of the
courtroom” Watkins' mother, Betty Byrd Watkins, struck Lamar, causing him to
stagger. Lamar countered by pushing Betty down. Watkins entered the fray by
jumping on Lamar's back. When separated by the chancellor and others, the men
were bloody and Lamar was choking Watkins with a necktie. The fight began in
the foyer leading into the courtroom, and actually spilled over into the courtroom.
. . . The record shows beyond a reasonable doubt that Lamar is guilty of direct
contempt.”).
Newell v. Hinton, 556 So. 2d 1037, 1044 (Miss. 1990) (“Even when there has been
established a prima facie case of contempt, the defendant may avoid judgment of
contempt by establishing that he is without present ability to discharge his obligation.”).
Hentz v. State, 496 So. 2d 668, 674 (Miss. 1986) (“It is apparent that the trial court found
the appellant guilty of direct criminal contempt . . . and ordered summary punishment.
Even though punishment was not imposed until the day following the conclusion of the
trial, we find nothing wrong with this procedure. There was no undue delay.”).
Cook v. State, 483 So. 2d 371, 376 (Miss.1986) (“Cases of direct contempt, where a
personal attack has been made on the court necessitating an instantaneous response, may
be dealt with by the judge offended. In other criminal contempt cases, particularly those
in which the allegedly contemptuous actions were committed outside the presence of the
court and where the trial judge has substantial personal involvement in the prosecution,
the accused contemnor must be tried by another judge.”).
Cassibry v. State, 453 So. 2d 1298, 1299 (Miss. 1984) (“[I]t is established beyond per
adventure that an indigent may not be incarcerated because he is financially unable to
comply with an otherwise lawfully imposed sentence of a fine.”).
Williams v. State, 409 So.2d 1331, 1332 (Miss. 1982) (“It is a narrow inquiry; the process
[of a revocation hearing] should be flexible enough to consider evidence including letters,
affidavits, and other material that would not be admissible in an adversary criminal
trial.”).
In re Holmes, 355 So. 2d 677, 679 (Miss. 1978) (“[The mother’s act in failing] to have
the child present [as ordered by the court], if willful, was one which resisted, from a
distance, . . . falls squarely within the definition of constructive contempt. . . .
[Therefore,] the trial court should have afforded [her] a hearing at which she could have
the assistance of counsel, the right to call witnesses, the right to be heard in her own
behalf, and the right to make a record.”).
Boone v. State, 148 So. 3d 377, 380 (Miss. Ct. App. 2014) (“Because Boone ‘willfully
refused to pay or failed to make sufficient bona fide efforts legally to acquire the
resources to pay,’ the trial court was not required to consider alternative sentencing.”).
Lumumba v. State, 868 So. 2d 1018, 1021 (Miss. Ct. App. 2003) (“[T]he statements
made toward the judge about how he can better get along with lawyers in the future,
about the judge’s “henchmen”, about being proud to be thrown out of the courtroom, and
about paying the judge for justice were made to embarrass the court or impede the
administration of justice.”).
McClinton v. State, 799 So. 2d 123, 127 (Miss. Ct. App. 2001) (“McClinton did not
claim inability to pay or indigence as a defense at the revocation hearing. It should also
be noted that his probation was revoked on three other grounds, namely: failure to
regularly report, refusal to submit to chemical analysis and criminal misconduct.”).
CHAPTER 22
EVIDENCE
2200 ORDER RESTYLING THE MISSISSIPPI RULES OF EVIDENCE
2201 GENERAL PROVISIONS
Scope; definitions
Purpose
Complete listing of Article I rules
2202 JUDICIAL NOTICE
Judicial notice of adjudicative facts
Complete listing of Article II rules
2203 PRESUMPTIONS IN CIVIL CASES
Presumptions in civil cases generally
Complete listing of Article III rules
2204 RELEVANCE AND ITS LIMITS
Test for relevant evidence
General admissibility of relevant evidence
Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons
Character evidence; crimes or other acts
Complete listing of Article IV rules
2205 PRIVILEGES
Privileges established by constitution or rule only
Spousal privilege
Complete listing of Article V rules
2206 WITNESSES
Competency to testify
Need for personal knowledge
Oath or affirmation to testify truthfully
Interpreter
Who may impeach a witness
A witness's character for truthfulness or untruthfulness
Mode and order of examining witnesses and presenting evidence
Writing used to refresh a witness's memory
Witness's prior statement
Court's calling or examining a witness
Excluding witnesses
Witness's bias
Complete listing of Article VI rules
2207 OPINIONS AND EXPERT TESTIMONY
Opinion testimony by lay witnesses
Testimony by expert witnesses
Opinion on an ultimate issue
Complete listing of Article VII rules
2208 HEARSAY
Preface
Definitions that apply to this article; exclusions from hearsay
The rule against hearsay
Exceptions to the rule against hearsay--regardless of whether the declarant is
available as a witness
Complete listing of Article VIII rules
2209 AUTHENTICATION AND IDENTIFICATION
Authenticating or identifying evidence
Evidence that is self-authenticating
Complete listing of Article IX rules
2210 CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Definitions that apply to this article
Requirement of the original
Admissibility of duplicates
Admissibility of other evidence of content
Complete listing of Article X rules
2211 MISCELLANEOUS RULES
Applicability of the rules
Title
Inconsistent rules repealed
Complete listing of Article XI rules
2200 ORDER RESTYLING THE MISSISSIPPI RULES OF EVIDENCE
Effective June 16, 2016
SUPREME COURT OF MISSISSIPPI
This matter is now before the en banc Court on the Court’s own motion.
When the Court adopted the Mississippi Rules of Evidence effective
January 1, 1986, it also adopted the comments appended to each rule as the
“Official Comments of the Court.” Those comments were to serve as
“authoritative guides” for interpreting the Mississippi Rules of Evidence.
After due consideration, we find that the comments should not represent
the “Official Comments of the Court” or serve as “authoritative guides” for
interpreting the Mississippi Rules of Evidence. Instead, we find that the comments
should be renamed Advisory Committee Notes and represent commentary from
the Advisory Committee on Rules, whose members represent the bench, bar, and
the law schools of this state.
The Advisory Committee has agreed, for now, to adopt the current
comments as its Advisory Committee Notes. In due time, the Advisory Committee
will draft and submit new, revised notes for publication.
IT IS THEREFORE ORDERED that the title “Advisory Committee Note”
must be substituted for the title “Comment” for each comment to the Mississippi
Rules of Evidence.
IT IS FURTHER ORDERED that the Advisory Committee Notes
represent commentary from the Advisory Committee and are neither the “Official
Comments of the Court” nor “authoritative guides” for interpreting the
Mississippi Rules of Evidence.
IT IS FURTHER ORDERED that this order is effective upon the date of
entry.
SO ORDERED, this the 13th day of June, 2016.
MICHAEL K. RANDOLPH,
PRESIDING JUSTICE
FOR THE COURT
ALL JUSTICES AGREE.
2201 GENERAL PROVISIONS
MRE 102 Scope; definitions:
(a) Scope. These rules apply to proceedings in Mississippi courts. The specific courts and
proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.
(b) Definitions. In these rules:
(1) “civil case” means a civil action or proceeding;
(2) “criminal case” includes a criminal proceeding;
(3) “record” includes a memorandum, report, or data compilation; and
(4) a reference to any kind of written material or any other medium includes
electronically stored information.
MRE 102 Purpose:
These rules shall be construed so as to administer every proceeding fairly, eliminate
unjustifiable expense and delay, and promote the development of evidence law, to the end
of ascertaining the truth and securing a just determination.
Complete listing of Article I rules:
Rule 101. Scope; Definitions
Rule 102. Purpose
Rule 103. Rulings on Evidence
Rule 104. Preliminary Questions
Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other
Purposes
Rule 106. Remainder of or Related Writings or Recorded Statements
2202 JUDICIAL NOTICE
MRE 201 Judicial notice of adjudicative facts:
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative
fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a
fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the
necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the
propriety of taking judicial notice and the nature of the fact to be noticed. If the court
takes judicial notice before notifying a party, the party, on request, is still entitled to be
heard.
(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the
noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may
or may not accept the noticed fact as conclusive.
Complete listing of Article II rules:
Rule 201. Judicial Notice of Adjudicative Facts
2203 PRESUMPTIONS IN CIVIL CASES
MRE 301 Presumptions in civil cases generally:
In a civil case, unless a Mississippi statute or these rules provide otherwise, the party
against whom a presumption is directed has the burden of producing evidence to rebut the
presumption. But this rule does not shift the burden of persuasion, which remains on the
party who had it originally.
Complete listing of Article III rules:
Rule 301. Presumptions in Civil Cases Generally
2204 RELEVANCE AND ITS LIMITS
MRE 401 Test for relevant evidence:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and
(b) the fact is of consequence in determining the case.
MRE 402 General admissibility of relevant evidence:
Relevant evidence is admissible unless any of the following provides otherwise:
C the United States Constitution;
C the Mississippi Constitution; or
C these rules.
Irrelevant evidence is not admissible.
MRE 403 Excluding relevant evidence for prejudice, confusion, waste of time, or
other reasons:
The court may exclude relevant evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.
MRE 404 Character evidence; crimes or other acts:
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible
to prove that on a particular occasion the person acted in accordance with the character or
trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions
apply in a criminal case:
(A) a defendant may offer evidence of the defendant's pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) a defendant may offer evidence of an alleged victim's pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it; and
(C) the prosecutor may offer evidence of the alleged victim's trait of peacefulness
to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness's character may be admitted under
Rules 607, 608, and 609.
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.
Complete listing of Article IV rules:
Rule 401. Test for Relevant Evidence
Rule 402. General Admissibility of Relevant Evidence
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or
Other Reasons
Rule 404. Character Evidence; Crimes or Other Acts
Rule 405. Methods of Proving Character
Rule 406. Habit; Routine Practice
Rule 407. Subsequent Remedial Measures
Rule 408. Compromise Offers and Negotiations
Rule 409. Offers to Pay Medical and Similar Expenses
Rule 410. Pleas, Plea Discussions, and Related Statements
Rule 411. Liability Insurance
Rule 412. Sex-Offense Cases: The Victim's Sexual Behavior or Predisposition
2205 PRIVILEGES
MRE 501 Privileges established by constitution or rule only:
Unless the federal or state constitution or these or other applicable rules provide
otherwise, no person has a privilege to:
C refuse to be a witness;
C refuse to disclose any matter;
C refuse to produce an object or writing; or
C prevent another from being a witness, disclosing any matter, or producing
an object or writing.
MRE 504 Spousal privilege:
(a) Definition. A communication is “confidential” if a person makes it privately to the
person's spouse and does not intend its disclosure to any other person.
(b) General Rule of Privilege. A person has a privilege to prevent the person's current or
former spouse from testifying in a civil or criminal case about any confidential
communication between them.
(c) Who may Claim the Privilege. Either spouse may claim the privilege. A spouse has
authority to claim the privilege on the other spouse's behalf.
(d) Exceptions. The privilege does not apply:
(1) in a civil case between the spouses; or
(2) in a criminal case when one spouse is charged with a crime against:
(A) the person of a minor child; or
(B) the person or property of:
(i) the other spouse;
(ii) a resident of either spouse's household; or
(iii) a third person when committed during a crime against any
person described in paragraphs (d)(1) and (2).
Complete listing of Article V rules:
Rule 501. Privileges Established by Constitution or Rule Only
Rule 502. Lawyer-Client Privilege
Rule 503. Privilege between Patient and Physician or Psychotherapist
Rule 504. Spousal Privilege
Rule 505. Communications to Clergy
2206 WITNESSES
MRE 601 Competency to testify:
(a) In General. Every person is competent to be a witness, except as provided in
subdivisions (b) and (c).
(b) Competency of Spouse. If one spouse is a party, the other spouse may not testify as a
witness in the case unless both consent, except:
(1) when called as a witness by the spouse who is a party;
(2) in a controversy between them; or
(3) in a criminal case for:
(A) a criminal act against a child;
(B) contributing to the neglect or delinquency of a child;
(C) desertion or nonsupport of a child under 16; and
(D) abandonment of a child.
(c) Competency of Appraiser. When the court--as required by law--appoints a person to
make an appraisal for the immediate possession of property in an eminent domain case:
(1) the appraiser may not testify as a witness in the trial of the case; and
(2) the appraiser's report is not admissible in evidence during the trial.
MRE 602 Need for personal knowledge:
A witness may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to prove personal
knowledge may consist of the witness's own testimony. This rule does not apply to a
witness's expert testimony under Rule 703.
MRE 603 Oath or affirmation to testify truthfully:
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must
be in a form designed to impress that duty on the witness's conscience.
MRE 604 Interpreter:
An interpreter must be qualified and must give an oath or affirmation to make a true
translation.
MRE 607 Who may impeach a witness:
Any party, including the party that called the witness, may attack the witness's credibility.
MRE 608 A witness's character for truthfulness or untruthfulness:
(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or
supported by testimony about the witness's reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an opinion about that
character. But evidence of truthful character is admissible only after the witness's
character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove specific instances of a witness's conduct in
order to attack or support the witness's character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are probative of the character
for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has
testified about.
By testifying on another matter, a witness does not waive any privilege against
self-incrimination for testimony that relates only to the witness's character for
truthfulness.
MRE 611 Mode and order of examining witnesses and presenting evidence:
(a) Control by the Court; Purposes.
The court should exercise reasonable control over the mode and order of examining
witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. The court may not limit cross-examination to the
subject matter of the direct examination and matters affecting the witness's credibility.
(c) Leading Questions. Leading questions should not be used on direct examination
except as necessary to develop the witness's testimony. Ordinarily, the court should allow
leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified
with an adverse party.
MRE 612 Writing used to refresh a witness's memory:
(a) Scope. This rule gives an adverse party certain options when a witness uses a writing,
recording, or object to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have
those options.
(b) Adverse Party's Options; Deleting Unrelated Matter. An adverse party is entitled
to have the writing, recording, or object produced at the hearing, to inspect it, to
cross-examine the witness about it, and to introduce in evidence any portion that relates
to the witness's testimony. If the producing party claims that the writing, recording, or
object includes unrelated matter, the court must examine the writing, recording, or object
in camera, delete any unrelated portion, and order that the rest be delivered to the adverse
party. Any portion deleted over objection must be preserved for the record.
(c) Failure to Produce or Deliver. If a writing, recording, or object is not produced or is
not delivered as ordered, the court may issue any appropriate order. But if the prosecution
does not comply in a criminal case, the court must strike the witness's testimony or--if
justice so requires--declare a mistrial.
MRE 613 Witness's prior statement:
(a) Showing or Disclosing the Statement During Examination. When examining a
witness about the witness's prior statement, a party need not show it or disclose its
contents to the witness. But the party must, on request, show it or disclose its contents to
an adverse party's attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a
witness's prior inconsistent statement is admissible only if the witness is given an
opportunity to explain or deny the statement and an adverse party is given an opportunity
to examine the witness about it, or if justice so requires. This subdivision (b) does not
apply to an opposing party's statement under Rule 801(d)(2).
MRE 614 Court's calling or examining a witness:
(a) Calling. The court may call a witness on its own or at a party's request. Each party is
entitled to cross-examine the witness.
(b) Examining. The court may examine a witness regardless of who calls the witness.
(c) Objections. A party may object to the court's calling or examining a witness either at
that time or at the next opportunity when the jury is not present.
MRE 615 Excluding witnesses:
At a party's request, the court must order witnesses excluded so that they cannot hear
other witnesses' testimony. Or the court may do so on its own. But this rule does not
authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being
designated as the party's representative by its attorney; or
(c) a person whose presence a party shows to be essential to presenting the party's
claim or defense.
MRE 616 Witness's bias:
Evidence of a witness's bias, prejudice, or interest--for or against any party--is admissible
to attack the witness's credibility.
Complete listing of Article VI rules:
Rule 601. Competency to Testify
Rule 602. Need for Personal Knowledge
Rule 603. Oath or Affirmation to Testify Truthfully
Rule 604. Interpreter
Rule 605. Judge's Competency as a Witness
Rule 606. Juror's Competency as a Witness
Rule 607. Who May Impeach a Witness
Rule 608. A Witness's Character for Truthfulness or Untruthfulness
Rule 609. Impeachment by Evidence of a Criminal Conviction
Rule 610. Religious Beliefs or Opinions
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
Rule 612. Writing Used to Refresh a Witness's Memory
Rule 613. Witness's Prior Statement
Rule 614. Court's Calling or Examining a Witness
Rule 615. Excluding Witnesses
Rule 616. Witness's Bias
Rule 617. Taking Testimony of a Child by Closed Circuit Television
2207 OPINIONS AND EXPERT TESTIMONY
MRE 701 Opinion testimony by lay witnesses:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to
one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a
fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
MRE 702 Testimony by expert witnesses:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
MRE 704 Opinion on an ultimate issue:
An opinion is not objectionable just because it embraces an ultimate issue.
Complete listing of Article VII rules:
Rule 701. Opinion Testimony by Lay Witnesses
Rule 702. Testimony by Expert Witnesses
Rule 703. Bases of an Expert's Opinion Testimony
Rule 704. Opinion on an Ultimate Issue
Rule 705. Disclosing the Facts or Data Underlying an Expert's Opinion
Rule 706. Court-Appointed Expert Witnesses
2208 HEARSAY
MRE Preface:
A witness's testimony is evaluated on the basis of four factors: perception, memory,
narration, and sincerity. In order that the testimony can be properly considered in the light
of these factors, the testimony should comply with three conditions. The witness should
testify (1) under oath, (2) in the presence of the trier of fact, and (3) be subjected to
cross-examination. Past experience as well as common sense indicate that some
testimony which does not conform to these three conditions may be more valuable than
testimony that does. The four factors may, in some instances, be present in the absence of
compliance with the three aforementioned conditions. The solution that the common law
developed over a period of time was a general rule against hearsay which permitted
exceptions which furnished guarantees of trustworthiness and reliability.
The hearsay provisions of the uniform rules retain the common law scheme. The
traditional common law hearsay exceptions have been retained in Rules 803 and 804.
Rule 803 concerns itself with situations where availability of the declarant is immaterial.
Rule 804 pertains to exceptions which are usable only where the declarant is unavailable.
The concluding provisions of both Rule 803 and 804 (Rule 803(24) and Rule 804(b)(5)
respectively) allow for the use of hearsay statements which do not fall within the
recognized exceptions, when the guarantees of trustworthiness and necessity are present.
These two provisions are a recognition that the law is not stagnant; they are designed to
encourage the development of this area of the law.
MRE 801 Definitions that apply to this article; exclusions from hearsay:
(a) Statement. “Statement” means a person's oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.
(d) Statements That Are Not Hearsay. A statement that meets the following conditions
is not hearsay:
(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant's testimony and was given under penalty of
perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant's testimony and is offered to rebut an express
or implied charge that the declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party's Statement. The statement is offered against an opposing party
and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the
subject;
(D) was made by the party's agent or employee on a matter within the scope of
that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the
conspiracy.
The statement must be considered but does not by itself establish the declarant's authority
under (C); the existence or scope of the relationship under (D); or the existence of the
conspiracy or participation in it under (E).
MRE 802 The rule against hearsay:
Hearsay is not admissible except as provided by law. The words “as provided by law”
include other rules prescribed by the Mississippi Supreme Court.
MRE 803 Exceptions to the rule against hearsay--regardless of whether the
declarant is available as a witness:
The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition,
made while or immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the
declarant's then-existing state of mind (such as motive, intent, or plan) or emotional,
sensory, or physical condition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact remembered or believed
unless it relates to the validity or terms of the declarant's will.
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made to any person at any time for--and is reasonably pertinent to--medical
diagnosis or treatment;
(B) describes medical history; past or present symptoms or sensations; their
inception; or their general cause; and
(C) is supported by circumstances that substantially indicate its trustworthiness.
In this paragraph, “medical” includes emotional, mental, and physical health.
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough
to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness's
memory; and
(C) accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only
if offered by an adverse party.
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
(A) the record was made at or near the time by--or from information transmitted
by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11); and
(E) neither the source of information nor the method or circumstances of
preparation indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not
included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate
a lack of trustworthiness.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including,
in a criminal case, a matter observed by law enforcement personnel; or
(iii) in a civil case or against the prosecution in a criminal case, factual
findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of
trustworthiness.
(9) Public Records of Vital Statistics. A record of a vital statistic, if reported to a public
office in accordance with a legal duty.
(10) Absence of a Public Record. Testimony--or a certification under Rule 902--that a
diligent search failed to disclose a public record or statement if the testimony or
certification is admitted to prove that:
(A) the record or statement does not exist; or
(B) a matter did not occur or exist, if a public office regularly kept a record or
statement for a matter of that kind.
(11) Records of Religious Organizations Concerning Personal or Family History. A
statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or
marriage, or similar facts of personal or family history, contained in a regularly kept
record of a religious organization.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact
contained in a certificate:
(A) made by a person who is authorized by a religious organization or by law to
perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony or
administered a sacrament; and
(C) purporting to have been issued at the time of the act or within a reasonable
time after it.
(13) Family Records. A statement of fact about personal or family history contained in a
family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a
portrait, or engraving on an urn or burial marker.
(14) Records of Documents That Affect an Interest in Property. The record of a document
that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded document,
along with its signing and its delivery by each person who purports to have signed
it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.
(15) Statements in Documents That Affect an Interest in Property. A statement contained
in a document that purports to establish or affect an interest in property if the matter
stated was relevant to the document's purpose--unless later dealings with the property are
inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. A statement in a document that is at least 20 years
old and whose authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists,
directories, or other compilations that are generally relied on by the public or by persons
in particular occupations.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained
in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on
cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert's admission
or testimony, by another expert's testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit. A
treatise used in direct examination must be disclosed to an opposing party without charge
in discovery.
(19) Reputation Concerning Personal or Family History. A reputation among a person's
family by blood, adoption, or marriage--or among a person's associates or in the
community--concerning the person's birth, adoption, legitimacy, ancestry, marriage,
divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal
or family history.
(20) Reputation Concerning Boundaries or General History. A reputation in a
community--arising before the controversy--concerning boundaries of land in the
community or customs that affect the land, or concerning general historical events
important to that community, state, or nation.
(21) Reputation Concerning Character. A reputation among a person's associates or in
the community concerning the person's character.
(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere
plea;
(B) the conviction was for a crime punishable by death or by imprisonment for
more than a year;
(C) the evidence is admitted to prove any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than
impeachment, the judgment was against the defendant.
The pendency of an appeal may be shown but does not affect admissibility.
(23) Judgments Involving Personal, Family, or General History, or a Boundary.
A judgment that is admitted to prove a matter of personal, family, or general history, or
boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.
(24) Other Exceptions. A statement not specifically covered by this Rule if:
(A) the statement has equivalent circumstantial guarantees of trustworthiness;
(B) it is offered as evidence of a material fact;
(C) it is more probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable efforts;
(D) admitting it will best serve the purposes of these rules and the interests of
justice; and
(E) before the trial or hearing, the proponent gives an adverse party reasonable
notice of the intent to offer the statement and its particulars, including the
declarant's name and address, so that the party has a fair opportunity to meet it.
(25) Tender Years Exception. A statement by a child of tender years describing any act of
sexual contact with or by another is admissible if:
(A) the court--after a hearing outside the jury's presence--determines that the
statement's time, content, and circumstances provide substantial indicia of
reliability; and
(B) the child either:
(i) testifies; or
(ii) is unavailable as a witness, and other evidence corroborates the act.
Complete listing of Article VIII rules:
Preface
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
Rule 802. The Rule Against Hearsay
Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant
Is Available as a Witness
Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is Unavailable as
a Witness
Rule 805. Hearsay Within Hearsay
Rule 806. Attacking and Supporting the Declarant's Credibility
2209 AUTHENTICATION AND IDENTIFICATION
MRE 901 Authenticating or identifying evidence:
(a) In General. To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.
(b) Examples. The following are examples only--not a complete list--of evidence that
satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed
to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting is
genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an
authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item, taken together with all the
circumstances.
(5) Opinion About a Voice. An opinion identifying a person's voice--whether heard
firsthand or through mechanical or electronic transmission or recording--based on hearing
the voice at any time under circumstances that connect it with the alleged speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence
that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that
the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to
business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this
kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a document or data
compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process or system and
showing that it produces an accurate result.
(10) Methods Provided by the Mississippi Constitution or Court Rule. Any method of
authentication or identification allowed by the Mississippi Constitution or a rule
prescribed by the Mississippi Supreme Court.
MRE 902 Evidence that is self-authenticating:
The following items of evidence are self-authenticating; they require no extrinsic
evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state, district,
commonwealth, territory, or insular possession of the United States; the former
Panama Canal Zone; the Trust Territory of the Pacific Islands; a political
subdivision of any of these entities; or a department, agency, or officer of any
entity named above; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A
document that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule
902(1)(A); and
(B) another public officer who has a seal and official duties within that same
entity certifies under seal--or its equivalent--that the signer has the official
capacity and that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested by a
person who is authorized by a foreign country's law to do so. The document must be
accompanied by a final certification that certifies the genuineness of the signature and
official position of the signer or attester--or of any foreign official whose certificate of
genuineness relates to the signature or attestation or is in a chain of certificates of
genuineness relating to the signature or attestation. The certification may be made by a
secretary of a United States embassy or legation; by a consul general, vice consul, or
consular agent of the United States; or by a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If all parties have been given a
reasonable opportunity to investigate the document's authenticity and accuracy, the court
may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification;
or
(B) allow it to be evidenced by an attested summary with or without final
certification.
(4) Certified Copies of Public Records. A copy of an official record--or a copy of a
document that was recorded or filed in a public office as authorized by law--if the copy is
certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a
rule prescribed by the Mississippi Supreme Court pursuant to statutory authority.
(5) Official Publications. A book, pamphlet, or other publication purporting to be issued
by a public authority.
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or
periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have
been affixed in the course of business and indicating origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of
acknowledgment that is lawfully executed by a notary public or another officer who is
authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and
related documents, to the extent allowed by general commercial law.
(10) Presumptions Under a Federal or State Statute. A signature, document, or other
matter that a Mississippi or federal statute declares to be presumptively or prima facie
genuine or authentic.
(11) Certified Records of a Regularly Conducted Activity. A record that meets the
requirements of Rule 803(6), if a certificate of the custodian or another qualified witness
complies with subparagraph (A).
(A) Certificate. The certificate must show:
(i) the custodian's or witness's first hand knowledge of the making,
maintenance, and storage of the record; and
(ii) that the record complies with Article X and Rules 803(6)(A)-(C) and
901(a).
A certificate relating to a foreign record must also be accompanied by the final
certification required by paragraph (3).
(B) Notice. Before the trial or hearing at which the record will be offered, the
proponent must give an adverse party notice of the intent to offer the record--and
must provide a copy of the record and certificate--so that the party has a fair
opportunity to state any objection. Otherwise, the record is not self-authenticating
under this paragraph (11).
(C) Making Objections. An adverse party waives any objection that is not:
(i) stated specifically in writing; and
(ii) served within 15 days after receiving the notice required by
subparagraph (B), or at a later time that the parties agree on or that the
court allows.
(D) Hearing and Ruling on Objections. The proponent must schedule a hearing on
any objection, and the court should determine admissibility of the record before
the trial or hearing at which it may be offered. If the court cannot do so, the record
is not self-authenticating under this paragraph (11).
(E) Sanctions. In a civil case after the trial or hearing, the proponent may move
that the objecting party and attorney pay the expenses of presenting the evidence
necessary to have the record admitted. The court must so order, if it determines
that the objection raised no genuine question and lacked arguable good cause.
(F) Definitions. In this paragraph “certificate” means:
(i) for a domestic record, a written declaration under oath or attestation
given under penalty of perjury; and
(ii) for a foreign record, a written declaration signed in a foreign country
that, if falsely made, would subject the maker to criminal penalty under
that country's laws.
Complete listing of Article IX rules:
Rule 901. Authenticating or Identifying Evidence
Rule 902. Evidence That Is Self-Authenticating
Rule 903. Subscribing Witness's Testimony
2210 CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
MRE 1001 Definitions that apply to this article:
In this article:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any
form.
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any
manner.
(c) A “photograph” means a photographic image or its equivalent stored in any form.
(d) An “original” of a writing or recording means the writing or recording itself or any
counterpart intended to have the same effect by the person who executed or issued it. For
electronically stored information, “original” means any printout--or other output readable
by sight--if it accurately reflects the information. An “original” of a photograph includes
the negative or a print from it.
(e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical,
electronic, or other equivalent process or technique that accurately reproduces the
original.
MRE 1002 Requirement of the original:
An original writing, recording, or photograph is required in order to prove its content
unless otherwise provided by law.
MRE 1003 Admissibility of duplicates:
A duplicate is admissible to the same extent as the original unless a genuine question is
raised about the original's authenticity or the circumstances make it unfair to admit the
duplicate.
MRE 1004 Admissibility of other evidence of content:
An original is not required and other evidence of the content of a writing, recording, or
photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was
at that time put on notice, by pleadings or otherwise, that the original would be a subject
of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
Complete listing of Article X rules:
Rule 1001. Definitions That Apply to This Article
Rule 1002. Requirement of the Original
Rule 1003. Admissibility of Duplicates
Rule 1004. Admissibility of Other Evidence of Content
Rule 1005. Copies of Public Records to Prove Content
Rule 1006. Summaries to Prove Content
Rule 1007. Testimony or Statement of a Party to Prove Content
Rule 1008. Functions of the Court and Jury
2211 MISCELLANEOUS RULES
MRE 1101 Applicability of the rules:
(a) To Courts and Proceedings. These rules apply to all cases and proceedings in
Mississippi courts, except as provided in subdivision (b).
(b) Exceptions. These rules--except for those on privilege--do not apply to the following:
(1) the court's determination, under Rule 104(a), on a preliminary question of fact
governing admissibility;
(2) grand-jury proceedings;
(3) contempt proceedings in which the court may act summarily; and
(4) these miscellaneous proceedings:
C extradition or rendition;
C issuing an arrest warrant, criminal summons, or search warrant;
C probable cause hearings in criminal cases and youth court cases;
C sentencing;
C disposition hearings;
C granting or revoking probation; and
C considering whether to release on bail or otherwise.
MRE 1102 Title:
These rules are the Mississippi Rules of Evidence and may be cited as MRE.
MRE 1103 Inconsistent rules repealed:
Any evidentiary rule in a statute, court decision, or court rule that is inconsistent with the
Mississippi Rules of Evidence is hereby repealed.
Complete listing of Article XI rules:
Rule 1101. Applicability of the Rules
Rule 1102. Title
Rule 1103. Inconsistent Rules Repealed
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CHAPTER 23
INTERPRETERS
2300 FOR LIMITED ENGLISH PROFICIENCY INDIVIDUALS
Mississippi Court Interpreter Credentialing Program
Scope
Complete listing of the Rules on Standards for Court Interpreters
When judge must appoint an interpreter
Non-English speaker defined
Program to facilitate the use of interpreters
Compensation
Oath, confidentiality and public comment
Determining the need for an interpreter
Fees and expenses
Checklist for facilitating communications
2301 FOR THE DEAF OR HEARING IMPAIRED
Appointment of interpreter
Definitions
When judge must appoint an interpreter
Interrogation statements
Determining extent of hearing impairment
Notifying the court of need for interpreter
Interpreter’s duties
Listing of qualified interpreters
Oath of true interpretation
Interpreter’s fees
2302 WEBSITES
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2300 FOR LIMITED ENGLISH PROFICIENCY INDIVIDUALS
Mississippi Court Interpreter Credentialing Program:
The Administrative Office of Courts has developed the Mississippi Court Interpreter
Credentialing Program to ensure equal access to justice for limited English proficiency
individuals. Information on the program is on the State of Mississippi Judiciary Website
at: http://courts.ms.gov (Open “AOC” then click “Court Interpreter” then click
“Resources & Forms”).
See also Dianne Molvig, Overcoming Language Barriers in Court, 74 Wis. Law. 10, 13
(February 2001) (“Court interpreters must be able to listen and translate back and forth
easily, accurately, and quickly in the midst of court proceedings. Qualified interpreters
learn how to execute this complex task through memory skills training. Court interpreters
also must understand legal terminology and procedures, and be able to convey concepts
for which no word may exist in the non-English language. . . . A careless translation can
convey an entirely incorrect meaning.”).
Rule 1 of the Rules on Standards for Court Interpreters Scope:
These rules shall apply to all courts in Mississippi, including without limitation,
municipal court, justice court, youth court, county court, circuit court, chancery
court, and grand jury proceedings.
Interpreters for the hearing impaired are not covered by these rules. See Miss.
Code Ann. §§ 13-1-301 to 13-1-315 regarding guidelines for interpreters for the
hearing impaired.
Complete listing of the Rules on Standards for Court Interpreters:
Rule 1. Scope
Rule 2. Definitions
Rule 3. Determining Need for Interpretation
Rule 4. Appointment of Interpreter
Rule 5. Waiver
Rule 6. Interpreter Oath
Rule 7. Certified and Registered Court Interpreters
Rule 8. Reciprocity
Rule 9. Renewal of Credentials
Rule 10. Removal of an Interpreter in Individual Cases
§ 99-17-7 When judge must appoint an interpreter:
In criminal cases wherein the defendant has been declared indigent, the court may
appoint an interpreter who is certified as provided in Section 9-21-73, when
necessary, sworn truly to interpret, and allow him a reasonable compensation, as
set by the court, payable out of the county treasury.
Mississippi Attorney General’s opinions:
Interpreter required when necessary to ensure due process rights.
“Based on Section 99-17-7, a court has the authority to appoint an interpreter, and it is the
opinion of this office that a court has the obligation to appoint an interpreter when
necessary in order to insure the defendant's due process rights.” Op. Atty. Gen. Arnold,
September 14, 2000.
§ 9-21-71 Non-English speaker defined:
The following words and phrases shall have the meanings ascribed to them unless
the context clearly requires otherwise:
(a) “Non-English speaker” means any party or witness who cannot readily
understand or communicate in spoken English and who consequently cannot
equally participate in or benefit from the proceedings unless an interpreter is
available to assist the individual. The fact that a person for whom English is a
second language knows some English does not prohibit that individual from being
allowed to have an interpreter.
(b) “Interpreter” means any person authorized by a court and competent to
translate or interpret oral or written communication in a foreign language during
court proceedings.
(c) “Court proceedings” means a proceeding before any court of this state or a
grand jury hearing.
§ 9-21-73 Program to facilitate the use of interpreters:
(1) The Director of the Administrative Office of Courts shall establish a program
to facilitate the use of interpreters in all courts of the State of Mississippi.
(2)(a) The Administrative Office of Courts shall prescribe the qualifications of
and certify persons who may serve as certified interpreters in all courts of the
State of Mississippi in bilingual proceedings. The Director of the Administrative
Office of Courts may set and charge a reasonable fee for certification.
(b) The director shall maintain a current master list of all certified interpreters and
shall report annually to the Supreme Court on the frequency of requests for and
the use and effectiveness of the interpreters.
(3) In all state court bilingual proceedings, the presiding judicial officer, with the
assistance of the director, shall utilize the services of a certified interpreter to
communicate verbatim all spoken or written words when the necessity therefor
has been determined pursuant to Section 9-21-79.
(4) All state courts shall maintain on file in the office of the clerk of the court a
list of all persons who have been certified as interpreters in accordance with the
certification program established pursuant to this section.
§ 9-21-75 Compensation:
The court may appoint either an interpreter who is paid or a volunteer interpreter.
§ 9-21-77 Oath, confidentiality and public comment:
(1) Prior to providing any service to a non-English speaking person, the interpreter shall
subscribe to an oath that he or she shall interpret all communications in an accurate
manner to the best of his or her skill and knowledge.
(2) The oath shall conform substantially to the following form:
INTERPRETER'S OATH
“Do you solemnly swear or affirm that you will faithfully interpret from (state the
language) into English and from English into (state the language) the proceedings before
this court in an accurate manner to the best of your skill and knowledge?”
(3) Interpreters shall not voluntarily disclose any admission or communication that is
declared to be confidential or privileged under state law. Out-of-court disclosures made
by a non-English speaker communicating through an interpreter shall be treated by the
interpreter as confidential or privileged or both unless the court orders the interpreter to
disclose such communications or the non-English speaker waives such confidentiality or
privilege.
(4) Interpreters shall not publicly discuss, report or offer an opinion concerning a matter
in which they are engaged, even when that information is not privileged or required by
law to be confidential.
(5) The presence of an interpreter shall not affect the privileged nature of any discussion.
See also MRE 604 (“An interpreter is subject to the provisions of these rules relating to
qualification as an expert and the administration of an oath or affirmation that he will
make a true translation.”).
§ 9-21-79 Determining the need for an interpreter:
(1) An interpreter is needed and a court interpreter shall be appointed when the
judge determines, after an examination of a party or witness, that: (a) the party
cannot understand and speak English well enough to participate fully in the
proceedings and to assist counsel; or (b) the witness cannot speak English so as to
be understood directly by counsel, court and jury.
(2) The court should examine a party or witness on the record to determine
whether an interpreter is needed if:
(a) A party or counsel requests such an examination;
(b) It appears to the court that the party or witness may not understand and speak
English well enough to participate fully in the proceedings; or
(c) If the party or witness requests an interpreter.
The fact that a person for whom English is a second language knows some
English should not prohibit that individual from being allowed to have an
interpreter.
(3) After the examination, the court should state its conclusion on the record, and
the file in the case shall be clearly marked and data entered electronically when
appropriate by court personnel to ensure that an interpreter will be present when
needed in any subsequent proceeding.
(4) Upon a request by the non-English speaking person, by counsel, or by any
other officer of the court, the court shall determine whether the interpreter
provided is able to communicate accurately with and translate information to and
from the non-English speaking person. If it is determined that the interpreter
cannot perform these functions, the court shall provide the non-English speaking
person with another interpreter.
§ 9-21-81 Fees and expenses:
(1) Any volunteer interpreter providing services under this act shall be paid
reasonable expenses by the court.
(2) The expenses of providing an interpreter in any court proceeding may be
assessed by the court as costs in the proceeding, or in the case of an indigent
criminal defendant to be paid by the county.
Checklist for facilitating communications:
In limited English proficiency proceedings, the judge should:
C advise everyone in the courtroom of the presence and role of the interpreter.
C instruct all participants to speak loudly and clearly.
C allow only one person to speak at a time.
C allow the interpreter to converse briefly with the non-English speaker to ensure
understanding of accents, dialect, or pronunciation differences.
C instruct the non-English speaker to interrupt or raise a hand if something is not
understood.
C allow the interpreter to view court files prior to the proceedings to become
familiar with names, parties, and technical vocabulary.
C direct attorneys to speak directly to the party or witness, not the interpreter.
C direct the interpreter to interpret in the first person in order for the record to be
accurate.
C advise the interpreter to notify the court when breaks are needed.
Julia Bussade, Director of Portugese and Spanish, Modern Languages Department of the
University of Mississippi, Remarks at the Mississippi Court Administrators Spring
Conference (April 25, 2008).
2301 FOR THE DEAF OR HEARING IMPAIRED
JC Rule 1.08 Appointment of interpreter:
The court may appoint an interpreter pursuant to Miss. Code Ann. § 13-1-301 through §
13-1-315.
§ 13-1-301 Definitions:
As used in sections 13-1-301 et seq. the following terms shall have the definition ascribed
to them herein unless the context requires otherwise:
(a) “Deaf person” means any person whose hearing is totally impaired or whose hearing is
so seriously impaired as to prohibit the person from understanding oral communications
when spoken to in a normal conversational tone. The term further includes, but is not
limited to, a person who is mute and a person who is both deaf and mute.
(b) “Qualified interpreter” means an interpreter certified by the national registry of
interpreters for the deaf, Mississippi Registry of Interpreters for the Deaf or, in the event a
qualified interpreter so certified is not available, an interpreter whose qualifications are
otherwise determined. Efforts to obtain the services of a qualified interpreter qualified
with a legal skills certificate or a comprehensive skills certificate will be made prior to
accepting services of an interpreter with lesser certification. No qualified interpreter may
be appointed unless the appointing authority and the deaf person make a preliminary
determination that the interpreter is able to interpret accurately the statements of the deaf
person and interpret the proceedings in which a deaf person may be involved.
(c) “Oral interpreter” means a person who interprets language through facial and lip
movements only and who does not use manual communication. An oral interpreter shall
be provided upon the request of a deaf person who does not communicate in sign
language. The right of a deaf person to have an interpreter may not be waived except by a
deaf person who does not use sign language and who initiates such request for waiver in
writing. Such waiver is subject to approval of counsel of such deaf person, if existent, and
is subject to approval of the appointing authority.
§ 13-1-303 When judge must appoint an interpreter:
(1) In any case in law or equity before any court or the grand jury, wherein any deaf
person is a party to such action, either as a defendant or witness, the court shall appoint a
qualified interpreter of the deaf sign language to interpret the proceedings to the deaf
person and interpret his testimony or statements and to assist in preparation with counsel.
§ 13-1-303 Interrogation statements:
(3) In the event that a deaf person has been detained in police custody or has been arrested
for any alleged violation of a criminal law, a qualified interpreter or, upon request, an oral
interpreter shall be provided by the arresting officer and his superiors prior to any
interrogation or taking of a statement from the person.
(4) In the event any interrogation statements in writing are made to the arresting officer
by the deaf person with the qualified interpreter present, such interrogation and answers
thereto shall be preserved and turned over to the court in the event such person is tried for
the alleged offense.
(5) Any statement made by a deaf person to a law enforcement officer may be used as
evidence against that person only if the statement was made, offered or elicited in the
presence of a qualified interpreter of the deaf sign language. No statements taken from
such deaf person prior to the presence of a qualified interpreter may be admissible in
court.
Compare Shook v. State, 552 So. 2d 841, 848 (Miss. 1989) (“Shook used communicative
and cognitive faculties other than hearing, faculties no one suggests were impaired, . . . ,
upon which he gave a written consent. Because we need not rely on Shook's hearing
abilities (or lack thereof) to find a valid and effective consent to search, we hold the
violation of § 13–1–303(5), if any, harmless beyond a reasonable doubt.”).
§ 13-1-305 Determining extent of hearing impairment:
If the judge, or any other person charged under the provisions of Sections 13-1-305 et seq.
with providing an interpreter, believes that a person claiming to be entitled to an
interpreter may not actually be deaf or hearing impaired, unable to communicate verbally
because of his hearing disability, or otherwise not entitled to such services, the judge
may, on good cause shown, hold a hearing to determine the extent of the person's
handicap or disability and the bona fide need for interpreting services. If it is determined
that the person is not entitled to such services, an interpreter shall not be provided.
§ 13-1-305 Notifying the court of need for interpreter:
Except in a preliminary hearing in a criminal case, every deaf person whose appearance
before a proceeding entitles him to an interpreter shall notify the appointing authority of
his disability not less than five (5) days prior to any appearance and shall request at such
time the services of an interpreter. When a deaf person reasonably expects to need an
interpreter for more than a single day, he shall so notify the appointing authority, and such
notification shall be sufficient for the duration of his participation in the proceedings.
When a deaf person receives notification of an appearance less than five (5) days before
such appearance, he shall provide his notification and request for an interpreter as soon
thereafter as practicable.
§ 13-1-307 Interpreter’s duties:
The duties of the interpreter may include:
(a) Interpreting during court and court-related proceedings, including any and all meetings
and conferences between client and his attorney;
(b) Translating or interpreting documents;
(c) Assisting in taking depositions;
(d) Assisting in administering oaths; and
(e) Such other duties as may be required by the judge of the court making the
appointment.
§ 13-1-311 Listing of qualified interpreters:
It shall be the responsibility of the appointing authority to channel requests for qualified
interpreters through (a) the Mississippi Registry of Interpreters for the Deaf; (b) the
community services program at the Mississippi School for the Deaf, or, (c) any
community resource wherein the appointing authority or the deaf person is
knowledgeable that such qualified interpreters can be found. It shall be the responsibility
of the community services program at the Mississippi School for the Deaf to compile and
update annually a listing of qualified interpreters and to make this listing available to
authorities in possible need of interpreter services as provided in sections 13-1-301 et seq.
§ 13-1-313 Oath of true interpretation:
Before participating in any proceedings subsequent to an appointment under the
provisions of Sections 13-1-301 et seq., an interpreter shall make an oath or affirmation
that he will make a true interpretation in an understandable manner to the person for
whom he is appointed and that he will repeat the statements of such persons in the
English language to the best of his skill and judgment. The appointing authority shall
provide recess periods as necessary for the interpreter when the interpreter so indicates.
See also MRE 604 (“An interpreter is subject to the provisions of these rules relating to
qualification as an expert and the administration of an oath or affirmation that he will
make a true translation.”).
§ 13-1-315 Interpreter’s fees:
An interpreter appointed under the provisions of Sections 13-1-301 et seq. shall be
entitled to a reasonable fee for such services in addition to actual expenses for travel and
transportation. The court or appointing authority may consider standards established by
the Mississippi Registry of Interpreters for the Deaf in determining a reasonable fee.
When the interpreter is appointed by a court in a criminal case the fee shall be paid out of
the general fund of the state, county or municipality, as the case may be. An interpreter's
fee in a civil action shall be paid out of funds provided by law or by one or more of the
parties as the court may direct and may be taxed ultimately as costs in the discretion of
the court. When an interpreter is provided by an appointing authority pursuant to
subsection (2) of Section 13-1-303, the fee shall be paid out of funds available to the
appointing authority.
2302 WEBSITES
Mississippi Registry of Interpreters for the Deaf: https://msrid.wildapricot.org/
Office on Deaf and Hard of Hearing: http://www.odhh.org/index.php
Federal Interagency Working Group on Limited English Proficiency at www.lep.gov
National Association of Judiciary Interpreters and Translators at www.najit.org
National Center for State Courts at http://www.ncsc.org/
CHAPTER 24
PRO SE DEFENDANTS
2400 GOVERNING LAWS ON PRO SE DEFENDANTS
Sixth Amendment
Article 3 § 26 of the Mississippi Constitution
2401 DEFENDANT MUST ASSERT RIGHT TO PROCEED PRO SE
2402 PROCEDURES IF THE RIGHT TO PROCEED PRO SE IS ASSERTED
Right to counsel; waiver
Pro se defendant to have actual control over case
Pro se defendant must abide by procedures and protocol
Hybrid representation
Opening statements and closing arguments
No “cat and mouse” games
Checklist when conducting pro se proceedings
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2400 GOVERNING LAWS ON PRO SE DEFENDANTS
Sixth Amendment:
In all criminal prosecutions, the accused shall ... have the Assistance of Counsel
for his defence.
Article 3 § 26 of the Mississippi Constitution:
In all criminal prosecutions the accused shall have a right to be heard by himself
or counsel, or both, to demand the nature and cause of the accusation, to be
confronted by the witnesses against him, to have compulsory process for obtaining
witnesses in his favor, and, in all prosecutions by indictment or information, a
speedy and public trial by an impartial jury of the county where the offense was
committed; and he shall not be compelled to give evidence against himself;
See also Faretta v. California, 422 U.S. 806, 835 (1975) (landmark decision on pro se
defendants); Armstead v. State, 716 So. 2d 576, 580 (Miss. 1998) (“In the landmark case
of Faretta v. California, [422 U.S. 806 (1975)], the United States Supreme Court firmly
established the Sixth Amendment right of criminal defendants to self-representation.”);
Taylor v. State, 812 So. 2d 1056, 1058-59 (Miss. Ct. App. 2001) (“The Sixth Amendment
to the United States Constitution provides that every defendant has the right to conduct
his or her own defense. . . . A refusal to allow a defendant to represent himself is a
violation of his constitutional rights and requires reversal.”). Note too that Article 3 § 25
of the Mississippi Constitution provides a right to proceed pro se in civil actions: “No
person shall be debarred from prosecuting or defending any civil cause for or against him
or herself, before any tribunal in the state, by him or herself, or counsel, or both.”
2401 DEFENDANT MUST ASSERT RIGHT TO PROCEED PRO SE
The right of self-representation requires the defendant to assert a desire of self-
representation. See Wilson v. State, 821 So. 2d 911, 914 (Miss. Ct. App. 2002) (“What
the court never did is to offer to let Wilson represent himself. However, Wilson did not
make a request that he be allowed to do so. We find no need for the court to raise that
option. Had the court become aware that this defendant desired to act as his own counsel,
then specific procedures would have been invoked for determining whether that choice
was knowing and voluntary.”); Davis v. State, 811 So. 2d 346, 350 (Miss. Ct. App. 2001)
(“A waiver of the right to assistance of counsel may occur at any time, before or during
the trial, but it must be made with a full understanding of its disadvantages and
consequences.”).
2402 PROCEDURES IF THE RIGHT TO PROCEED PRO SE IS ASSERTED
MRCrP 7.1 Right to counsel; waiver:
(a) Right to be Represented by Counsel. A defendant shall be entitled to be represented by
counsel in any criminal proceeding. The right to be represented shall include the right to
consult in private with an attorney or the attorney's agent, without unnecessary delay, after
a defendant is taken into custody, at reasonable times thereafter, and sufficiently in
advance of a proceeding to allow adequate preparation therefor.
(b) Right to Appointed Counsel. An indigent defendant shall be entitled to have an
attorney appointed in any criminal proceeding which may result in punishment by loss of
liberty, in any other criminal proceeding in which the court concludes that the interests of
justice so require, or as required by law. The determination of the right to appointed
counsel, and the appointment of such counsel, is to be made no later than at the indigent
defendant's first appearance before a judge.
(c) Waiver of Right to Counsel. When the court learns that a defendant desires to act as
his/her own attorney, the court shall conduct an on-the-record examination of the
defendant to determine if the defendant knowingly and voluntarily desires to act as
his/her own attorney. The court shall inform the defendant that:
1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney,
then the court will appoint one free of charge to defend or assist the defendant in his/her
defense.
2. The defendant has the right to conduct the defense and may elect to do so and allow
whatever role (s)he desires to his/her attorney.
3. The court will not relax or disregard the rules of evidence, procedure or courtroom
protocol for the defendant and that the defendant will be bound by and have to conduct
himself/herself within the same rules as an attorney, that these rules are not simple and
that without legal advice his/her ability to defend himself/herself will be hampered.
4. The right to proceed pro se usually increases the likelihood of a trial outcome
unfavorable to the defendant.
5. Other matters as the court deems appropriate.
After informing the defendant and ascertaining that the defendant understands these
matters, the court will ascertain whether the defendant still wishes to proceed pro se or if
the defendant desires an attorney to assist him/her in his/her defense. If the defendant
desires to proceed pro se, the court should determine whether the defendant has exercised
this right knowingly and voluntarily and, if so, make the finding a matter of record. At the
time of accepting a defendant's waiver of the right to counsel, the court shall inform the
defendant that the waiver may be withdrawn and counsel appointed or retained at any
stage of the proceedings. Additionally, the court may appoint an attorney to assist the
defendant on procedure and protocol, even if the defendant does not desire an attorney.
Such advisory counsel shall be given notice of all matters of which the defendant is
notified.
(d) Withdrawal of Waiver. A defendant may withdraw a waiver of the right to counsel at
any stage of the proceedings but will not be entitled to repeat any proceeding previously
held or waived solely on the grounds of the subsequent appointment or retention of
counsel.
(e) Unreasonable Delay in Retaining Counsel. If a non-indigent defendant appears
without counsel at any proceeding after having been given reasonable time to retain
counsel, the cause may proceed. If an indigent defendant who has refused appointed
counsel in order to obtain private counsel appears without counsel at any proceeding after
having been given reasonable time to retain counsel, the court shall appoint counsel
unless the indigent defendant waives the right under section (c). If the indigent defendant
continues to refuse appointed counsel, the cause may proceed.
See also Carter v. State, 941 So. 2d 846, 852 (Miss. Ct. App. 2006) (“The right of a
defendant to conduct his own defense is not absolute, existing only where the waiver of
counsel can be made in a knowing, intelligent and voluntary manner.”); Davis v. State,
811 So. 2d 346, 351 (Miss. App. 2001) (“The record reflects the trial judge forewarned
Davis of the dangers and responsibilities of self-representation. Davis chose to ignore
those warnings and proceed on his own behalf. It is far too late to argue that he lacked
the legal knowledge to represent himself.”).
Pro se defendant to have actual control over case:
Pro se defendants are entitled to preserve actual control over the case including: making
all significant tactical decisions; arguing motions; participating in voir dire; questioning
witnesses; making opening and closing statements; and not having standby counsel
destroy the jury’s perception of a pro se defense. However, the trial court may still
appoint, even over objection, standby counsel to assist in explaining rules of procedure
and courtroom protocol. See McKaskle v. Wiggins, 465 U.S. 168, 178 (1984); Metcalf v.
State, 629 So. 2d 558, 562-63 (Miss. 1993).
Pro se defendant must abide by procedures and protocol:
Pro se defendants are not exempt from rules of procedure and courtroom protocol. See
Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (“[T]he trial judge may terminate
self-representation by a defendant who deliberately engages in serious and obstructionist
misconduct.”).
Hybrid representation:
A defendant has a right to proceed pro se, but does not have a right to hybrid
representation. McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); Metcalf v. State, 629
So. 2d 558, 563 (Miss. 1993). Instead, this type of representation lies within the
discretion of the trial court. See Henley v. State, 729 So. 2d 232, 236 (Miss. 1998).
What is hybrid representation?
In order to strike a balance between the right to counsel and the right to
self-representation many courts have turned to “hybrid representation” as a
middle ground. Hybrid representation is considered to encompass both the
participation of the defendant in the conduct of his trial when he has not
effectively waived the assistance of an attorney to defend him, and the
participation by an attorney in the conduct of the trial when the defendant
is defending pro se. Courts commonly refer to the role of the attorney in a
situation in which a defendant has not effectively waived assistance of an
attorney as that of “co-counsel.” The role of the attorney in a situation
where the defendant has effectively waived counsel and is proceeding pro
se is that of “standby” or “advisory” counsel. The former tends to involve
a more active role in the representation of the defendant than the latter.
Metcalf v. State, 629 So. 2d 558, 562 (Miss. 1993).
See also Howard v. State, 701 So. 2d 274, 287 (Miss. 1997) (“The Faretta right is not
trampled if ‘disagreements between counsel and defendant are resolved in the defendant's
favor whenever the matter is one which would normally be left to the discretion of
counsel.’”); Comment to Rule 5.5 of the Rules of Professional Conduct ( “[A] lawyer
may counsel nonlawyers who wish to proceed pro se.”).
Opening statements and closing arguments:
A pro se or hybrid defendant is permitted to make an opening statement and closing
argument without relinquishing the privilege against self-incrimination:
Our law does not require a defendant to make a choice between
proceeding pro se and exercising his constitutional right against
self-incrimination. He may conduct his entire defense without ever
being sworn in or being subject to any cross-examination.
Armstead v. State, 716 So. 2d 576, 580 (Miss. 1998).
Moreover, refusing a defendant’s request to make an opening statement or closing
argument is reversible error. See Brooks v. State, 763 So. 2d 859, 866 (Miss. 2000);
Ballard v. State, 366 So. 2d 668, 668 (Miss. 1979); Gray v. State, 351 So. 2d 1342, 1345
(Miss. 1977). But a pro se or hybrid defendant is not exempt from abiding by rules of
procedure and courtroom protocol. See Trunell v. State, 487 So. 2d 820, 826 (Miss.
1986). Delving into material points outside the record, when warned not to do so,
constitutes a “partial waiver” of the privilege against self-incrimination. See Armstead v.
State, 716 So. 2d 576, 580 (Miss. 1998); Duplantis v. State, 644 So. 2d 1235, 1251 (Miss.
1994); Jones v. State, 381 So. 2d 983, 993 (Miss. 1980).
In such instances, the trial court may properly allow the State to comment that the
statements were not made under oath:
The defendant's remarks in this case cannot be dismissed as a
failure to grasp “legal niceties.” They are unsworn testimony, and
as such, constitute a partial waiver of the constitutional privilege
against self-incrimination and the prohibition against a district
attorney from commenting on his not taking the stand.
Jones v. State, 381 So. 2d 983, 994 (Miss. 1980).
See also Bevill v. State, 556 So. 2d 699, 710-11 (Miss. 1990) (“An accused who does not
intend to testify himself under oath cannot be permitted, any more than any other litigant,
to have the jury consider as evidence any statements of fact not subject to rigorous
cross-examination of the witness under oath.”).
No “cat and mouse” games:
A defendant may not employ self-representation as a ruse to disrupt the orderly progress
of the case:
[W]e have recognized a right of a defendant to proceed without counsel
and to refuse the representation of assigned counsel. . . . [H]e may not use
this right to play a 'cat and mouse' game with the court, . . . or by ruse or
stratagem fraudulently seek to have the trial judge placed in a position
where, in moving along the business of the court, the judge appears to be
arbitrarily depriving the defendant of counsel.
Brooks v. State, 763 So. 2d 859, 866 (Miss. 2000).
See also Young v. State, 425 So. 2d 1022, 1027 (Miss. 1983) (“[Defendant] delayed and
vacillated and the record indicates that he was toying with the court. He was evasive and
apparently wanted to act as counsel and have counsel, but when the trial judge pressed
him for a decision, [he] expressly told the court that he wanted his counsel to
withdraw.”).
Checklist when conducting pro se proceedings:
C Do not give legal advice.
C Conduct examination as set forth in the Mississippi Rules of Criminal Procedure.
C Avoid ex parte communications. Explain this rule in open court.
C Act at all times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary.
C Treat pro se defendants with patience, dignity, and courtesy.
C Give a brief synopsis of courtroom protocol–e.g., the expectation of timely
proceedings; checking-in procedures; seating arrangements; etc.
C Forewarn that rude conduct or snide remarks will not be tolerated.
C Construe pleadings liberally–i.e., substance over form.
C Decide all motions promptly. Give rationale for your decision in plain language.
C Prior to trial briefly explain the ground rules of trial procedures (e.g., who goes
first, the swearing in witnesses, the right to cross-examine, how to make an
objection); the elements of the offense, the burden of proof, and that your verdict
will be based only upon the evidence presented at trial.
C Call a break if during trial the pro se defendant is becoming confused or agitated.
C Reach your verdict promptly and announce it from the bench.
C Remind the pro se defendant of the right to appeal.
CHAPTER 25
VICTIMS’ RIGHTS
2500 VICTIMS’ RIGHTS UNDER THE MISSISSIPPI CONSTITUTION
2501 MISSISSIPPI CRIME VICTIMS’ BILL OF RIGHTS
Purpose
Definitions
Complete listing of the Mississippi Crime Victims’ Bill of Rights
2502 MISSISSIPPI CRIME VICTIMS’ COMPENSATION ACT
Legislative intent
Complete listing of the Mississippi Crime Victims’ Compensation Act
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2500 VICTIMS’ RIGHTS UNDER THE MISSISSIPPI CONSTITUTION
Article 3 § 26A of the Mississippi Constitution Victim’s rights:
(1) Victims of crime, as defined by law, shall have the right to be treated with
fairness, dignity and respect throughout the criminal justice process; and to be
informed, to be present and to be heard, when authorized by law, during public
hearings.
(2) Nothing in this section shall provide grounds for the accused or convicted
offender to obtain any form of relief nor shall this section impair the constitutional
rights of the accused. Nothing in this section or any enabling statute shall be
construed as creating a cause of action for damages against the state or any of its
agencies, officials, employees or political subdivisions.
(3) The Legislature shall have the authority to enact substantive and procedural
laws to define, implement, preserve and protect the rights guaranteed to victims
by this section.
2501 MISSISSIPPI CRIME VICTIMS’ BILL OF RIGHTS
§ 99-43-1 Purpose:
This chapter may be cited as the “Mississippi Crime Victims' Bill of Rights.” The
purpose of this chapter is to ensure the fair and compassionate treatment of
victims of crime, to increase the effectiveness of the criminal justice system by
affording rights and considerations to the victims of crime, and to preserve and
protect victims' rights to justice and fairness in the criminal justice system.
§ 99-43-3 Definitions:
As used in this chapter, the following words shall have the meanings ascribed to them
unless the context clearly requires otherwise:
(a) “Accused” means a person who has been arrested for committing a criminal offense
and who is held for an initial appearance or other proceeding before trial or who is a
target of an investigation for committing a criminal offense.
(b) “Appellate proceeding” means an oral argument held in open court before the
Mississippi Court of Appeals, the Mississippi Supreme Court, a federal court of appeals
or the United States Supreme Court.
(c) “Arrest” means the actual custodial restraint of a person or his submission to custody.
(d) “Community status” means extension of the limits of the places of confinement of a
prisoner through work release, intensive supervision, house arrest and initial
consideration of pre-discretionary leave, passes and furloughs.
(e) “Court” means all state courts including juvenile courts.
(f) “Victim assistance coordinator” means a person who is employed or authorized by a
public entity or a private entity that receives public funding primarily to provide
counseling, treatment or other supportive assistance to crime victims.
(g) “Criminal offense” means conduct that gives a law enforcement officer or prosecutor
probable cause to believe that a felony involving physical injury, the threat of physical
injury, a sexual offense, any offense involving spousal abuse or domestic violence has
been committed.
(h) “Criminal proceeding” means a hearing, argument or other matter scheduled by and
held before a trial court but does not include a lineup, grand jury proceeding or other
matter not held in the presence of the court.
(i) “Custodial agency” means a municipal or county jail, the Department of Corrections,
juvenile detention facility, Department of Youth Services or a secure mental health
facility having custody of a person who is arrested or is in custody for a criminal offense.
(j) “Defendant” means a person or entity that is formally charged by complaint,
indictment or information of committing a criminal offense.
(k) “Final disposition” means the ultimate termination of the criminal prosecution of a
defendant by a trial court, including dismissal, acquittal or imposition of a sentence.
(l) “Immediate family” means the spouse, parent, child, sibling, grandparent or guardian
of the victim, unless that person is in custody for an offense or is the accused.
(m) “Lawful representative” means a person who is a member of the immediate family or
who is designated as provided in Section 99-43-5; no person in custody for an offense or
who is the accused may serve as lawful representative.
(n) “Post-arrest release” means the discharge of the accused from confinement on
recognizance, bond or other condition.
(o) “Post-conviction release” means parole or discharge from confinement by an agency
having custody of the prisoner.
(p) “Post-conviction relief proceeding” means a hearing, argument or other matter that is
held in any court and that involves a request for relief from a conviction, sentence or
adjudication.
(q) “Prisoner” means a person who has been convicted or adjudicated of a criminal
offense against a victim and who has been sentenced to the custody of the sheriff, the
Department of Corrections, Department of Youth Services, juvenile detention facility, a
municipal jail or a secure mental health facility.
(r) “Prosecuting attorney” means the district attorney, county prosecuting attorney,
municipal prosecuting attorney, youth court prosecuting attorney, special prosecuting
attorney or Attorney General.
(s) “Right” means any right granted to the victim by the laws of this state.
(t) “Victim” means a person against whom the criminal offense has been committed, or if
the person is deceased or incapacitated, the lawful representative.
Complete listing of the Mississippi Crime Victims’ Bill of Rights:
§ 99-43-1. Short title; purpose
§ 99-43-3. Definitions
§ 99-43-5. Designation of representative
§ 99-43-7. Notification of victim by law enforcement officials
§ 99-43-8. Right to receive copy of initial incident report
§ 99-43-9. Notification of victim by prosecutor
§ 99-43-11. Conference of prosecutor and victim before disposition
§ 99-43-13. Conference of prosecutor and victim before trial
§ 99-43-15. Victim's right to transcripts
§ 99-43-17. Victim not to direct prosecution
§ 99-43-19. Unreasonable delays; continuances
§ 99-43-21. Victim's right to be present at proceedings
§ 99-43-23. Separate waiting areas
§ 99-43-25. Identification and address of victim; confidentiality
§ 99-43-27. Plea bargaining; victim's rights
§ 99-43-29. Notice to victim of disposition and sentencing
§ 99-43-31. Victim impact statements to probation officers
§ 99-43-33. Victim impact statements at court proceedings
§ 99-43-35. Release, escape and sentencing information
§ 99-43-37. Right of victim to be present and heard at court proceedings
§ 99-43-39. Victim's property
§ 99-43-41. Notice requirements of custodial agencies
§ 99-43-43. Victim statements for prison records; notice of parole or pardon proceedings;
notice of change of custodial status
§ 99-43-45. Victim's employment protected
§ 99-43-47. Prosecutor may assert victim's rights
§ 99-43-49. Failure to provide victim's rights or notice
2502 MISSISSIPPI CRIME VICTIMS’ COMPENSATION ACT
§ 99-41-3 Legislative intent:
It is the intent of the Legislature to provide a method of compensating those persons who
are innocent victims of criminal acts within the state and who suffer bodily injury or
death and of assisting victims of crime through information referrals and advocacy
outreach programs. To this end, it is the Legislature's intention to provide compensation
for injuries suffered as a direct result of the criminal acts of other persons. It is the further
intent of the Legislature that all agencies, departments, boards and commissions of the
state and political subdivisions of the state shall cooperate with the Attorney General's
Office in carrying out the provisions of this chapter.
Complete listing of the Mississippi Crime Victims’ Compensation Act:
§ 99-41-1. Short title
§ 99-41-3. Legislative intent
§ 99-41-5. Definitions
§ 99-41-7. Directors; duties; appointment
§ 99-41-9. Powers and duties of division
§ 99-41-11. Investigation and procedures
§ 99-41-13. Appeals
§ 99-41-15. Waiver of physician-patient privilege
§ 99-41-17. Disqualifications
§ 99-41-19. Evidentiary effect of conviction
§ 99-41-21. Subrogation; repayment of compensation; written notice of actions
§ 99-41-23. Calculation and nature of award; assignment
§ 99-41-25. Advance on award
§ 99-41-27. False claims
§ 99-41-29. Crime Victims' Compensation Fund
§ 99-41-31. Disclosure of records as to claims; confidentiality of records
CHAPTER 26
EVICTIONS
2600 LANDLORD AND TENANT (TITLE 89, CHAPTER 7)
Establishment
Proceedings against holdover tenant
Oath or affirmation of facts authorizing removal
When judge is to issue summons
How summons is to be served
When judge is to issue removal warrant
Defenses
Adjournments, subpoenas and attachments
If judgment for landlord
If judgment for tenant
Stay of proceedings
Records and appeals
2601 SELF-HELP EVICTIONS
Self-help defined
When landlord may re-enter premises
Landlord may not seize property of defendant
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2600 LANDLORD AND TENANT (TITLE 89, CHAPTER 7)
§ 21-23-1 Establishment
There shall be a municipal court in all municipalities of this state. Wherever the words
“police court” or “police justice” appear in the laws of this state, they shall mean
municipal court or municipal judge, respectively.
§ 89-7-27 Proceedings against holdover tenant:
A tenant or lessee at will or at sufferance, or for part of a year, or for one or more years,
of any houses, lands, or tenements, and the assigns, undertenants, or legal representatives
of such tenant or lessee, shall be removed from the premises by the judge of the county
court, any justice of the peace of the county, or by the mayor or police justice of any city,
town, or village where the premises, or some part thereof, are situated, in the following
cases, to wit:
First. Where such tenant shall hold over and continue in possession of the demised
premises, or any part thereof, after the expiration of his term, without the permission of
the landlord.
Second. After any default in the payment of the rent pursuant to the agreement under
which such premises are held, and when complete satisfaction of the rent and any late
fees due cannot be obtained by distress of goods, and three (3) days' notice, in writing,
requiring the payment of such rent or the possession of the premises, shall have been
served by the person entitled to the rent on the person who owes the rent.
Third. If a written agreement between the landlord and tenant exists, any event calling for
eviction in the agreement may trigger the eviction process under this section. Notice of
default by email or text message is proper if the party has agreed in writing to be notified
by that means.
Mississippi Attorney General’s opinions:
Jurisdiction to hear some evictions.
“Municipal courts are limited to criminal matters with the exception of civil domestic
abuse (Section 21-23-7) and some evictions as set forth in Section 89-7-27.” Op. Atty.
Gen. Lawrence, October 1, 2010.
Municipal court jurisdiction under Section 89-7-27.
“This office is of the opinion that a municipal court has jurisdiction to hear actions
brought by landlords for evictions of tenants [as] described in the statute, . . . .” Op. Atty.
Gen. Montgomery, June 27, 1991.
§ 89-7-29 Oath or affirmation of facts authorizing removal:
The landlord or lessor, his legal representatives, agents, or assigns, in order to have the
benefit of such proceedings, shall present to the court a sworn affidavit that contains the
facts which, according to Section 89–7–27, require the removal of the tenant, describing
in the affidavit the premises claimed and the amount of rent and any late fees due and
when payable, and that the necessary notice has been given to terminate such tenancy.
These facts shall be based on the rental agreement signed or agreed to by the landlord or
lessor, his legal representatives, agents, or assigns, and the tenant. Upon receipt of the
sworn affidavit, the court shall initiate the removal of the tenant for the nonpayment of
rent or other event of default contained in any written agreement between the parties, as
specified in the affidavit.
§ 89-7-31 When judge is to issue summons:
(1) On receiving the affidavit, the county judge, justice court judge, municipal judge, or
other officer shall issue a summons, directed to the sheriff or any constable of the county,
or the marshal of the municipality in which the premises, or some part thereof, are
situated, describing the premises, and commanding him to require the person in
possession of the same or claiming the possession thereof, immediately to remove from
the premises, or to show cause before the justice court judge or other officer, on a day to
be named in the summons, why possession of the premises should not be delivered to the
applicant.
(2) In addition to other information required for the summons, the summons shall state:
"At the hearing, a judge will determine if the landlord is granted exclusive possession of
the premises. If the judge grants possession of the premises to the landlord and you do not
remove your personal property, including any manufactured home, from the premises
before the date and time ordered by the judge, then the landlord may dispose of your
personal property without any further legal action."
§ 89-7-33 How summons is to be served:
Such summons shall be served as a summons is served in other cases, if the tenant
can be found; if not, then by putting up a copy in some conspicuous place on the
premises where the tenant last or usually resided.
Compare Rule 2.08 of the Uniform Rules of Procedure for Justice Court which provides:
“Summons shall be issued and served pursuant to Miss. Code Ann. §§ 11-9-107,
11-9-109 and 13-3-5(2).”
§ 89-7-35 When judge is to issue removal warrant:
(1) If, at the time appointed, it appears that the summons has been duly served, and if a
judgment of eviction is granted, the magistrate shall issue a warrant to the sheriff or any
constable of the county, or to a marshal of the municipality in which the premises, or
some part thereof, are situated, immediately upon request, except when prohibited or
otherwise provided under Section 89–7–45, commanding him to remove all persons from
the premises, and to put the applicant into full possession thereof.
(2) If the summons complied with the requirements of Section 89-7-31(2) and if the
tenant has failed to remove any of tenant's personal property, including any manufactured
home, from the premises, then, if the judge has not made some other finding regarding
the disposition of any personal property in the vacated premises, the personal property
shall be deemed abandoned and may be disposed of by the landlord without further notice
or obligation to the tenant.
§ 89-7-37 Defenses:
The person in possession of such premises, or any person claiming possession
thereof, may, at or before the time appointed in the summons for showing cause,
file an affidavit with the magistrate who issued the same, denying the facts upon
which the summons was issued; and the matters thus controverted may be tried by
the magistrate.
§ 89-7-39 Adjournments, subpoenas and attachments:
The court may, at the request of either party, adjourn the hearing from time to time, a
single adjournment not to exceed ten (10) days, except by consent, and may issue
subpoenas and attachments to compel the attendance of witnesses. However, in hearings
for eviction, no adjournment shall extend the entire hearing beyond forty-five (45) days
from the date the eviction action was filed.
§ 89-7-41 If judgment for landlord:
(1) If the decision is in favor of the landlord or other person claiming the possession of
the premises, the magistrate shall issue a warrant to the sheriff, constable, or other officer
immediately upon request, except when prohibited or otherwise provided under Section
89–7–45, commanding him immediately to put the landlord or other person into
possession of the premises, and to levy the costs of the proceedings of the goods and
chattels, lands and tenements, of the tenant or person in possession of the premises who
shall have controverted the right of the landlord or other person.
(2) If the summons complied with the requirements of Section 89-7-31(2) and if the
tenant has failed to remove any of tenant's personal property, including any manufactured
home, from the premises, then, if the judge has not made some other finding regarding
the disposition of any personal property in the vacated premises, the personal property
shall be deemed abandoned and may be disposed of by the landlord without further notice
or obligation to the tenant.
§ 89-7-43 If judgment for tenant:
If the decision be in favor of the tenant, he shall recover costs of the applicant, and
the magistrate shall issue execution therefor.
§ 89-7-45 Stay of proceedings:
When warrant for removal may issue in cases of nonpayment of rent. If a judgment of
eviction is founded solely upon the nonpayment of rent and, at the time of the request for
the warrant for removal the full and complete amount of rent due, including any late fees
as provided in the rental agreement that have accrued as of the date of judgment, and the
costs of the proceedings, have been paid to the person entitled to the rent, the magistrate
shall not issue a warrant for removal. If the rent, late fees and costs have not been paid in
full at the time of the request for the warrant for removal, the magistrate must
immediately issue the warrant for removal unless the judge determines that, for good
cause shown, a stay not to exceed three (3) days would best serve the interests of justice
and equity. If it is shown that a stay is likely to result in material injury to the property of
the person entitled to the rent, no stay shall be granted.
§ 89-7-47 Records and appeals:
The magistrate before whom proceedings shall be had against a tenant holding over, shall
keep a full record of his proceedings, and shall carefully preserve all papers in the cause,
and the same costs shall be taxed and paid as are allowed for similar service in cases of
unlawful entry and detainer, and the right of appeal shall exist as in such cases.
See also U.R.C.C.P. 5.01, 5.04, 5.07, 5.08 and 5.09; Miss. Code Ann. § 11-51-83 (Appeal
from case of unlawful entry).
2601 SELF-HELP EVICTIONS
Self-help defined:
According to Black’s Law Dictionary “self-help” is: “An attempt to redress a perceived
wrong by one’s own action rather than through the normal legal process.”
When landlord may re-enter premises:
The Mississippi Supreme Court in addressing self-help held:
Where the landlord is entitled to possession which is unlawfully withheld by his
tenant, and the lease contract provides, as it does in effect in the present case, that
the landlord may re-enter without legal proceedings, such a contract is binding to
the extent that the landlord may re-enter, provided he does so without breaking
doors, windows, or other passages of ingress, and neither uses nor threatens
personal violence towards the tenant or those holding possession for him.
Clark v. Service Auto Company, 108 So. 704, 707 (Miss.1926).
Landlord may not seize property of defendant:
Mississippi's landlord lien statute does not authorize a landlord to use self-help to seize
property of the tenant:
The lease between the landlord and tenant in the case sub judice had no provision
which would have allowed the landlord to regain possession without notice and
hearing. Since there was no such provision, the landlord should have used the
statutory process and not resorted to a self-help procedure.
Bender v. North Meridian Mobile Home Park, 636 So. 2d 385, 389 (Miss. 1994).
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CHAPTER 27
MUNICIPAL COURT APPEALS
2700 RULES PREVAIL OVER CONFLICTING STATUTORY PROCEDURES
2701 CRIMINAL APPEALS FROM MUNICIPAL COURT
Notice of appeal; contents; defects; dismissal
Record
Cost bonds
Appearance bonds
Proceedings
2702 CIVIL APPEALS FROM MUNICIPAL COURT
2703 STATUTES PERTAINING TO APPEALS
When appeal is to county court
Bond fees
Appeals without bond
Stay as waiver of errors
2704 CASE LAW ON MUNICIPAL COURT APPEALS
When an appeal is perfected
Defendant may appeal after pleading guilty
Appeal is by trial de novo
“Three-court rule” unconstitutional and void
Writ of procedendo
2705 CERTIORARI PROCEEDINGS
Applicable to municipal courts
Certiorari from municipal court
Blank page
2700 RULES PREVAIL OVER CONFLICTING STATUTORY PROCEDURES
“A right of appeal is statutory.” Bickham v. Department of Mental Health, 592 So. 2d 96,
97 (Miss. 1991). “Once such a right statutorily exists, the Supreme Court has the
authority to provide rules of procedure.” Mitchell v. Parker, 804 So. 2d 1066, 1070 (Miss.
Ct. App. 2001). This authority stems from Mississippi Constitution Article VI section
144, which provides: “The judicial power of the state shall be vested in a Supreme Court
and such other courts as are provided for in this constitution.” See also Southern Pac.
Lumber Co. v. Reynolds, 206 So. 2d 334, 335 (Miss. 1968) (“The phrase ‘judicial power’
in section 144 of the Constitution includes the power to make rules of practice and
procedure, not inconsistent with the Constitution, for the efficient disposition of judicial
business.”).
But legislative suggestions concerning procedural rules will be followed if such do not
conflict with judicial rules:
We are keenly aware of, and measure with great respect, legislative
suggestions concerning procedural rules and they will be followed unless
determined to be an impediment to justice or an impingement upon the
constitution. The inherent power of this Court to promulgate procedural
rules emanates from the fundamental constitutional concept of the
separation of powers and the vesting of judicial powers in the courts.
Newell v. State, 308 So. 2d 71, 76 (Miss. 1975).
But if there is a conflict, the rules prevail. See Jones v. City of Ridgeland, 48 So. 3d 530,
537 (Miss. 2010) (“Procedure is defined as ‘[t]he mode of proceeding by which a legal
right is enforced, as distinguished from the substantive law which gives or defines the
rights, and which, by means of the proceedings, the court is to administer; the machinery,
as distinguished from its product.’ Black's Law Dictionary 1203-04 (6th ed.1990).”);
Murray v. State, 870 So. 2d 1182, 1184 (Miss. 2004) (“This Court has held where there is
conflict between a statute and a procedural rule created by the Supreme Court, the rule
controls and the statute is void and of no effect.”); Stevens v. Lake, 615 So. 2d 1177,
1184 (Miss. 1993) (“Given no apparent conflict between the plain language of the statutes
and the rule, and the Stevens' failure to identify any alleged conflicts, we find that their
argument that the statute is void and of no effect is without merit.”).
2701 CRIMINAL APPEALS FROM MUNICIPAL COURT
MRCrP 29.1 Notice of appeal; contents; defects; dismissal:
(a) Notice of Appeal. 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, to circuit court,
by filing simultaneously a written notice of appeal, and both a cost bond and an
appearance bond (or cash deposit), as provided in Rules 29.3(a) and 29.4(a), with the
clerk of the circuit court having jurisdiction within thirty (30) days of such judgment.
This written notice of appeal and posting of the cost bond and the appearance bond (or
cash deposit) perfects the appeal. After the filing of the written notice of appeal, cost
bond, and appearance bond (or cash deposit), an further correspondence concerning the
case snail be mailed directly to the circuit clerk for inclusion in the file.
(b) Contents. The written notice of appeal shall specify the party or parties taking the
appeal; specify the current residence address and the current mailing address, if different,
of each party taking the appeal; designate the judgment or order from which the appeal is
taken; be addressed to county or circuit court, whichever appropriate; and state that the
appeal is taken for a trial de novo.
(c) Defects in the Notice of Appeal; Dismissal. Upon a failure of a party to comply with
the requirements of this rale as to content of the written notice of appeal, the court, on its
own motion or on motion of a party, shall direct the clerk of the court to give written
notice to the party in default, apprising the party of the nature of the deficiency. If the
party in default fails to correct the deficiency within fourteen (14) days after notification,
the appeal shall be dismissed by the clerk of the court. The county or circuit court shall
promptly notify the lower court of any such dismissal.
MRCrP 29.2 Record:
Upon receiving written notice of appeal, and upon the defendant's compliance with Rules
29.3(a) and 29.4(a), the circuit clerk shall promptly notify the lower court and the
appropriate prosecuting attorney. Within ten (10) days after receipt of such notice, the
judge or clerk of the lower court shall deliver to the clerk of the circuit court a certified
copy of the record and all original papers in the case.
MRCrP 29.3 Cost bonds:
(a) Cost Bonds. Unless excused by the county or circuit court by the making of an
affidavit of poverty like that specified in Mississippi Code Section 99-35-7, every
defendant who appeals under this rule shall post a cash deposit, or bond with sufficient
resident sureties (or licensed guaranty companies) to be approved by the circuit clerk, for
all estimated court costs incurred both in the appellate and lower courts (including, but
not limited to, fees, court costs, and amounts imposed pursuant to statute). The amount of
such cash deposit or bond shall be determined by the judge of the lower court, payable to
the State in an amount of not less than One Hundred Dollars ($100.00) nor more than
Twenty-Five Hundred Dollars ($2,500,00). Upon a bond forfeiture, the costs of the lower
court shall, be recovered after the costs of the appellate court.
(b) Dismissal for Noncompliance. A defendant's failure to comply with Rule 29.3(a) shall
be grounds for the court, on its own motion or on motion of a party, to dismiss the appeal,
with costs. The county or circuit court shall promptly notify the lower court of any such
dismissal.
MRCrP 29.4 Appearance bonds:
(a) Appearance Bond. Unless excused by the county or circuit court by the making of an
affidavit as specified in Mississippi Code Section 99-35-7, a cash deposit, or bond with
sufficient resident sureties (or licensed guaranty companies) to be approved by the circuit
clerk, shall be given and conditioned on appearance before the county or circuit court
from day to day and term to term until the appeal is finally determined or dismissed. The
amount of such cash deposit or appearance bond shall be determined by the judge of the
lower court.
(b) Failure to Appear. If the defendant fails to appear at the time and place set by the
court, the court may dismiss the appeal with prejudice and with costs, and order forfeiture
of the appearance bond or cash deposit. The county or circuit court shall promptly notify
the lower court of any such dismissal.
(c) Time in Custody Credited. All time the defendant is in custody on the present charge
shall be credited against any sentence imposed by the court.
MRCrP 29.5 Proceedings:
Upon the filing with the circuit clerk of the written notice of appeal and bonds or cash
deposits required by this Rule, unless excused therefrom, the prior judgment of
conviction shall be stayed. The appeal shall proceed as a trial de novo. In appeals from
justice or municipal court, when the maximum possible sentence is six (6) months or less,
the case may be tried without a jury.
2702 CIVIL APPEALS FROM MUNICIPAL COURT
URCCC 5.01 (Appeals to be on the record/Exceptions)
Except for cases appealed directly from justice court or municipal court, all cases
appealed to circuit court shall be on the record and not a trial de novo. Direct
appeals from justice court and municipal court shall be by trial de novo.
URCCC Rule 5.04 (Notice of appeal)
The party desiring to appeal a decision from a lower court must file a written notice of
appeal with the circuit court clerk. A copy of that notice must be provided to all parties or
their attorneys of record and the lower court or lower authority whose order or judgment
is being appealed. A certificate of service must accompany the written notice of appeal.
The court clerk may not accept a notice of appeal without a certificate of service, unless
so directed by the court in writing. In all appeals, whether on the record or by trial de
novo, the notice of appeal and payment of costs must be simultaneously filed and paid
with the circuit court clerk within thirty (30) days of the entry of the order or judgment
being appealed. The timely filing of this written notice and payment of costs will perfect
the appeal. The appellant may proceed in forma pauperis upon written approval of the
court acting as the appellate court. The written notice of appeal must specify the party or
parties taking the appeal; must designate the judgment or order from which the appeal is
taken; must state if it is on the record or an appeal de novo; and must be addressed to the
appropriate court.
URCCC 5.07 (Procedure on appeals by trial de novo)
In appeals by trial de novo, the circuit court clerk, upon the filing of the written
notice of appeal, must enter the case on the docket, noting that it is an appeal with
trial de novo. The appeal will proceed as if a complaint and answer had been
filed, but the court may require the filing of any supplemental pleadings to clarify
the issues. All proceedings on an appeal de novo will be governed by the
Mississippi Rules of Civil Procedure, where applicable, the Mississippi Rules of
Evidence, and these Rules.
URCCC Rule 5.08 (Supersedeas)
The perfecting of an appeal, whether on the record or by trial de novo, does not act as
supersedeas. In cases being appealed that involve a money judgment, the party against
whom money judgment was rendered may post with the court clerk of the court acting as
the appellate court a bond that is 125% of the money judgment, such bond to be approved
by the circuit clerk. The posting of this bond shall automatically act as a supersedeas
solely on the money judgment, but not any other part of the order or judgment. Upon
application the court may reduce the amount of the supersedeas bond. In appeals from
lower authorities, when the statute provides for automatic supersedeas, the statute shall
govern. In all other cases the court may grant a supersedeas upon proof of the party
requesting the same, applying the same standards as for a preliminary injunction.
However, except in those cases in which the statute provides for automatic supersedeas,
no supersedeas will be granted on appeals from a denial, revocation or suspension of a
license to practice a profession or a trade. The court may grant an expedited hearing, may
alter the briefing schedules, and may require the record to be expedited. In all cases in
which a discretionary supersedeas is granted, the court may require a bond sufficient to
protect the interests of the other parties.
URCCC Rule 5.09 (Cost bond)
In all appeals, unless the court allows an appeal in forma pauperis, the appellant or
appellants shall pay all court costs incurred below and likely to be incurred on appeal as
estimated by the circuit court clerk. Should a dispute arise, a party may apply to the court
for relief.
2703 STATUTES PERTAINING TO APPEALS
§ 99-35-1 When appeal is to county court:
In all cases of conviction of a criminal offense against the laws of the state by the
judgment of a justice court, or by a municipal court, for the violation of an
ordinance thereof, an appeal may be taken . . . to the county court of the county, in
counties in which a county court is in existence, or the circuit court of the county,
in counties in which a county court is not in existence, which shall stay the
judgment appealed from.
See also Miss. Code Ann. § 11-51-81 (“All appeals from courts of justices of the peace,
special and general, and from all municipal courts shall be to the county court under the
same rules and regulations as are provided on appeals to the circuit court, . . . .”).
§ 83-39-31 Bond fees:
(3) Upon each defendant convicted of a criminal offense who appeals his conviction and
posts a bond conditioned for his appearance, there is imposed a fee equal to two percent
(2%) of the face value of each bond or Twenty Dollars ($20.00), whichever is greater. If
such defendant is released on his own recognizance pending his appeal, there is imposed
a fee of Twenty Dollars ($20.00). The fee imposed by this subsection shall be imposed
and shall be collected by the clerk of the court when the defendant posts a bond unless
subsection (4) applies.
(4) If a defendant is found to be not guilty or if the charges against a defendant are
dismissed, or if the prosecutor enters a nolle prosequi in the defendant's case or retires the
defendant's case to the file, or if the defendant's conviction is reversed on appeal, the fees
imposed pursuant to subsections (1), (2), (3) and (7) shall not be imposed.
(5) The State Auditor shall establish by regulation procedures providing for the timely
collection, deposit, accounting and, where applicable, refund of the fees imposed by this
section. The Auditor shall provide in the regulations for certification of eligibility for
refunds and may require the defendant seeking a refund to submit a verified copy of a
court order or abstract by which the defendant is entitled to a refund.
(6) It shall be the duty of the clerk or any officer of the court authorized to take bonds or
recognizances to promptly collect, at the time such bonds or recognizances are received
or taken, all fees imposed pursuant to this section. In all cases, the clerk or officer of the
court shall deposit all fees so collected with the State Treasurer, pursuant to appropriate
procedures established by the State Auditor, for deposit into the State General Fund.
(7) In addition to the fees imposed by this section, there shall be an assessment of Ten
Dollars ($10.00) imposed upon every criminal defendant charged with a criminal offense
who posts a cash bail bond, a surety bail bond, a property bail bond or a guaranteed arrest
bond to be collected by the clerk of the court and deposited in the Victims of Domestic
Violence Fund created by Section 93-21-117, unless subsection (4) applies.
§ 99-35-7 Appeals without bond:
Any person who shall have been convicted of a criminal offense against the laws
of this state, by the judgment of a justice court, or by a municipal court for the
violation of an ordinance of the municipality, who by reason of his poverty is not
able to give bond as prescribed in Section 99-35-3, may nevertheless appeal from
such conviction on his making an affidavit that, by reason of his poverty, he is
unable to give bond or other security to obtain such appeal, but the appeal in such
case shall not operate as a supersedeas of the judgment, nor discharge the
appellant from custody, but the judgment shall be executed as if an appeal had not
been taken, unless the presiding judge of the appellate court shall, for good
reason, see fit to stay the execution of the judgment rendered by the court below
by ordering the release of the defendant on his own recognizance, and this shall
not affect the trial of the case anew in the appellate court.
§ 11-9-141 Stay as waiver of errors
A party obtaining a stay of execution shall thereby waive all errors in the judgment and
abandon the right of appeal and certiorari.
2704 CASE LAW ON MUNICIPAL COURT APPEALS
When an appeal is perfected:
See Ray v. State, 124 So. 3d 80, 81 (Miss. Ct. App. 2013) (“Perfecting an appeal from a
justice-court criminal conviction requires filing a notice of appeal and two bonds—(1) a
‘cost bond’ to secure estimate costs, and (2) an ‘appearance bond’ conditioned on the
defendant's appearance pending the appeal's conclusion. Because of the distinct purposes
for each bond, failure to file either is grounds for dismissal.”).
Defendant may appeal after pleading guilty:
See Jones v. State, 972 So. 2d 579, 580 (Miss. 2008) (“A convicted defendant, although
he may have plead guilty, may take an appeal to circuit or county court and be granted a
trial de novo.”); Fowler v. State, 981 So. 2d 1061, 1063 (Miss. Ct. App. 2008) (“[T]he
circuit court erred in finding that Fowler was not entitled to a trial de novo following his
guilty plea in justice court.”).
Appeal is by trial de novo:
See Boatner v. State, 754 So. 2d 1184, 1191 (Miss. 2000) (“[Boatner's] appeal to the
circuit court placed all issues, including the sentence, in the jurisdiction of the circuit
court.”); Carr v. State, 942 So. 2d 816, 817 (Miss. Ct. App. 2006) (“[T]he law concerning
the constitutionality of enhancing a lower court’s sentence following a de novo review by
the superior court is clear.”).
“Three-court rule” unconstitutional and void:
See Jones v. City of Ridgeland, 48 So. 3d 530, 535 (Miss. 2010) (“[T]he “three-court
rule” in Section 11-51-81 [i.e., “there shall be no appeal from the circuit court to the
supreme court of any case civil or criminal which originated in a justice of the peace,
municipal or police court and was thence appealed to the county court and thence to the
circuit court unless in the determination of the case a constitutional question be
necessarily involved and then only upon the allowance of the appeal by the circuit judge
or by a judge of the supreme court”] is unconstitutional and void.”).
Writ of procedendo:
See Ferrell v. State, 785 So. 2d 317, 319-20 (Miss. Ct. App. 2001) (“A writ of
procedendo is issued by a court of superior jurisdiction to a court of inferior jurisdiction
to enforce the lower court's judgment. . . . Where an appellant fails to appear when he
should have, and the circuit court follows the proper procedure, appellant has no right to
demand that the circuit court pass upon the question of his guilt.”).
2705 CERTIORARI PROCEEDINGS
Applicable to municipal courts:
Certiorari proceedings is a backup to the ordinary appeals procedures:
Oftentimes persons tried in justice court are without counsel and, as here,
such persons may not formally perfect an appeal in time. There will on
occasion no doubt be cases where no formal appeal has been timely
perfected but where injustice may be avoided by allowing a circuit court
authority to review errors of law on the face of the record of a justice court
proceeding. The six month time period allowed for filing a writ of
certiorari does not unduly hamper or undermine the public's interest in
finality of criminal adjudications.
Merritt v. State, 497 So. 2d 811, 813 (Miss. 1986).
See also Lott v. City of Bay Springs, 960 So. 2d 525, 527 (Miss. Ct. App. 2006) (“As the
statute explicitly states, only a pure question of law is reviewable on certiorari. Merritt,
497 So.2d at 815. Despite the fact that Lott was convicted in municipal court rather than
in a justice court, this language still applies to Lott's petition for writ of certiorari through
Mississippi Code Annotated § 11-51-95 which provides for “[l]ike proceedings as
provided in Section 11-51-93 . . . to review the judgments of all tribunals inferior to the
circuit court[.]””).
Certiorari from municipal court:
§ 11-51-93
All cases decided by a [justice court judge], whether exercising general or special
jurisdiction, may, within six months thereafter, on good cause shown by petition,
supported by affidavit, be removed to the circuit court of the county, by writ of certiorari,
which shall operate as a supersedeas, the party, in all cases, giving bond, with security, to
be approved by the judge or clerk of the circuit court, as in cases of appeal from [justice
court judges]; and in any cause so removed by certiorari, the court shall be confined to the
examination of questions of law arising or appearing on the face of the record and
proceedings. In case of an affirmance of the judgment of the justice, the same judgment
shall be given as on appeals. In case of a reversal, the circuit court shall enter up such
judgment as the justice ought to have entered, if the same be apparent, or may then try the
cause anew on its merits, and may in proper cases enter judgment on the certiorari or
appeal bond, and shall, when justice requires it, award restitution. The clerk of the circuit
court, on the issuance of a certiorari, shall issue a summons for the party to be affected
thereby; and, in case of nonresidents, he may make publication for them as in other cases.
§ 11-51-95
Like proceedings as provided in section 11-51-93 may be had to review the judgments of
all tribunals inferior to the circuit court, whether an appeal be provided by law from the
judgment sought to be reviewed or not. However, petitions for a writ of certiorari to the
circuit court for review of a decision of a municipal civil service commission created
under section 21-31-1 et seq. or section 21-31-51 et seq. shall be filed within thirty (30)
days after the entry of the judgment or order of the commission.
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JUSTICE COURT / MUNICIPAL COURT
BENCH CARD
ON CONTEMPT OF COURT
PROCEDURES ON CONTEMPT OF COURT ARE
SET FORTH IN 32 OF THE MISSISSIPPI RULES OF
CRIMINAL PROCEDURE. READ THE RULE!
RULES 26.6 AND 32 GOVERN CONTEMPT
PROCEDURES FOR FAILURE TO PAY FINES,
FEES, RESTITUTION, AND/OR COURT COSTS.
DIRECT CONTEMPT is a disruptive act occurring
within the judge’s actual sight or hearing that
interferes with the dignified conduct of the
court’s business. A judge may summarily
sanction the violator as set forth in Rule 32.2 of
the Mississippi Rules of Criminal Procedure.
Punishment may not exceed 30 days in jail or a
$100.00 fine. FAILURE TO PAY A FINE, FEE,
COURT COSTS, OR RESTITUTION IS NOT DIRECT
CONTEMPT OF COURT since the reasons for
nonpayment involve personal and/or financial
circumstances outside the courtroom.
CRIMINAL CONTEMPT is defined in Rule 32.1(d)
of the Mississippi Rules of Criminal Procedure.
INDIRECT, CRIMINAL CONTEMPT requires:
C A criminal affidavit.
C A criminal summons to appear.
C An advisement of rights (see BENCH
CARD ON INITIAL APPEARANCES)
including the right to an attorney and, if
indigent, the right to an appointed
attorney FREE OF COST.
C A hearing by a judge other than the trial
judge.
C Proof beyond a reasonable doubt.
Criminal contempt for failure to pay fines, fees,
restitution, and/or court costs requires proof
beyond a reasonable doubt that the defendant
WILFULLY REFUSED to pay despite having the
financial ability to do so.
CIVIL CONTEMPT is defined in Rule 32.1(e) of
the Mississippi Rules of Criminal Procedure.
INDIRECT, CIVIL CONTEMPT for non-payment of
fines, fees, restitution, and/or court costs
requires:
C A written motion specifying the amount
of the fines, fees, restitution, and/or
court costs owed.
C A copy of court’s sentencing order and
an affidavit verifying or supporting the
motion.
C A summons to appear and show cause.
C A hearing by the trial judge that allows
the defendant a FULL OPPORTUNITY to
present testimony, confront and cross-
examine adverse witnesses, and to
present evidence in his/her defense.
IF INCARCERATION TO COMPEL COMPLIANCE IS
SOUGHT, then the judge MUST advise the
defendant of the right to an attorney and, if
indigent, the right to an appointed attorney
FREE OF COST. MRCrP 32.4(d)(4).
AT THE HEARING, the judge may reduce the
amount of the remaining fines, fees, restitution,
and/or court costs, allow additional time for
payments, and/or order community service
with credit received at the highest current
federal minimum wage.
A JUDGE’S ORDER OF CIVIL CONTEMPT must
specify the sanction imposed and how the
contempt may be purged. DEFENDANTS MAY
NOT BE INCARCERATED FOR REASONS OF
THEIR FINANCIAL INABILITY TO PAY! See
Bearden v. Georgia, 461 U.S. 660 (1983).
Prepared by the Mississippi Judicial College for training
and educational purposes pursuant to Section 37-26-1.
JUSTICE COURT / MUNICIPAL COURT
BENCH CARD
ON INITIAL APPEARANCES
WHEN CONDUCTING AN INITIAL APPEARANCE,
THE JUDGE MUST COMPLY WITH RULE 5 OF
THE MISSISSIPPI RULES OF CRIMINAL
PROCEDURE. READ THE RULE!
A DEFENDANT IN CUSTODY AFTER AN ARREST,
with or without an arrest warrant, MUST be
taken before a judge for an initial appearance
WITHOUT UNNECESSARY DELAY, and always
within 48 hours.
ABSOLUTELY BE SURE TO:
C Give the defendant a copy of the
charging affidavit.
C IF THE ARREST WAS MADE WITHOUT A
WARRANT, then you must determine
whether there was PROBABLE CAUSE
for the arrest. NOTE YOUR FINDING
FOR THE RECORD.
C If there was NO PROBABLE CAUSE for
the warrantless arrest, then you MUST
release the defendant without any
conditions whatsoever.
C Advise the defendant of the right to an
attorney.
APPOINT AN ATTORNEY IF THE DEFENDANT
WANTS AN ATTORNEY BUT CANNOT AFFORD
TO HIRE ONE.
SEE “BENCH CARD ON RIGHT TO COUNSEL”
FOR PROCEDURES ON:
THE RIGHT TO AN ATTORNEY,
THE RIGHT TO AN APPOINTED ATTORNEY,
THE RIGHT TO SELF-REPRESENTATION, AND
KNOWINGLY AND VOLUNTARILY MADE
WAIVERS OF THESE RIGHTS.
C ADVISE THE DEFENDANT OF:
(1) the right to remain silent and that
any statements made may be used
against the defendant;
(2) the right to communicate with an
attorney, family or friends, and that
reasonable means will be provided to
enable the defendant to do so; and
(3) the conditions, if any, under which
the defendant may obtain release.
C IF THE DEFENDANT IS CHARGED WITH A
FELONY, then advise him/her of the
right to a preliminary hearing as set
forth in Rule 6 of the Mississippi Rules
of Criminal Procedure.
C SIGN THE CERTIFICATE OF INITIAL
APPEARANCE showing compliance with
the procedures for initial appearances
under the Mississippi Rules of Criminal
Procedure.
WITH THE DEFENDANT'S CONSENT, initial
appearances may be conducted with the use of
interactive audiovisual equipment as set forth
in Rule 1.8 of the Mississippi Rules of Criminal
Procedure.
Prepared by the Mississippi Judicial College for training
and educational purposes pursuant to Section 37-26-1.
JUSTICE COURT / MUNICIPAL COURT
BENCH CARD
ON JUDGMENTS
PROCEDURES ON JUDGMENTS ARE SET FORTH
IN RULE 26 OF THE MISSISSIPPI RULES OF
CRIMINAL PROCEDURE. READ THE RULE!
A DETERMINATION OF GUILT means “a verdict
of guilty by a jury, a finding of guilt by a court
following a non-jury trial, or the acceptance by
the court of a plea of guilty or nolo
contendere.” MRCrP 26.1(a)
AFTER ADJUDICATING A DEFENDANT GUILTY,
the judge MUST impose sentencing without
unreasonable delay. MRCrP 26.2(b)(3).
PRONOUNCEMENT OF JUDGMENT must be:
C Made in open court.
C Made in the presence of the defendant.
C Recorded in the court’s minutes.
A defendant may make a voluntary, knowing,
and intelligent waiver of his/her right to be
present ONLY as set forth in Rule 10.1(b) of the
Mississippi Rules of Criminal Procedure.
PRONOUNCEMENT OF SENTENCE requires the
judge:
C To afford the defendant an opportunity
to make a statement before imposing
sentence.
C To inform the defendant that credit will
be given for time already spent in
custody on the offense.
C To explain to the defendant the terms
of the sentence.
BEST PRACTICES before imposing fines, fees,
court costs, and/or restitution:
C Assess fines, fees, court costs, and/or
restitution at an amount, and with a
payment schedule, that is reasonable
considering the defendant’s financial
situation, as evidenced by the
defendant’s “Affidavit of Substantial
Financial Hardship” and/or testimony
regarding his/her income, assets,
liabilities, and financial obligations.
C Fully and clearly explain to the
defendant, and provide him/her with a
copy of those instructions, on:
(1) how and where to make payments;
(2) the consequences of failing to do so;
(3) how to request a court hearing if the
circumstances of the defendant’s
financial ability to pay changes; and
(4) how to notify the court if there is a
change of address or telephone
number.
C Consider for indigent defendants any
nonfinancial alternatives allowed by
law–e.g., community service. Be aware
that some indigent defendants may
need accommodations for disabilities,
childcare needs, transportation, and/or
to prevent conflicts with work or school
schedules.
ADDITIONAL FINES, FEES, OR COURT COSTS
ARE NOT ALLOWED ON PAYMENT PLANS OR
WHEN IMPOSING COMMUNITY SERVICE OR
OTHER NON-FINANCIAL ALTERNATIVES.
Prepared by the Mississippi Judicial College for training
and educational purposes pursuant to Section 37-26-1.
JUSTICE COURT / MUNICIPAL COURT
BENCH CARD
ON THE RIGHT TO COUNSEL
THE RIGHT TO COUNSEL IS SET FORTH IN RULE
7 OF THE MISSISSIPPI RULES OF CRIMINAL
PROCEDURE. READ THE RULE!
CHECKLIST OF IMPORTANT CONCERNS:
C THE ACCUSED IS ENTITLED TO AN
ATTORNEY AT EVERY CRITICAL STAGE
OF THE PROCEEDINGS. See Alabama v.
Shelton, 535 U.S. 654 (2002); Scott v.
Illinois, 440 U.S. 367, 373 (1979);
Argersinger v. Hamlin, 407 U.S. 25
(1972); Page v. State, 495 So. 2d 436
(Miss. 1986).
C AT THE DEFENDANT’S FIRST
APPEARANCE BEFORE A JUDGE, the
judge must advise the defendant of the
right to an attorney as required under
Rule 7.1 of the Mississippi Rules of
Criminal Procedure. An indigent
defendant is entitled to an appointed
attorney, free of cost, if the matter
could result in the loss of liberty or the
interests of justice so require.
C IF AN INDIGENT DEFENDANT WANTS
AN ATTORNEY, then instruct him/her:
(1) to submit a written MOTION FOR
APPOINTMENT OF ATTORNEY, and
(2) to complete and sign under oath an
AFFIDAVIT OF SUBSTANTIAL HARDSHIP.
(The court shall make these forms
available to the defendant at no cost.)
ADDITIONALLY, you may examine the
defendant under oath to clarify his/her
financial situation–which is especially
important when the defendant has
difficulty completing the AFFIDAVIT OF
SUBSTANTIAL HARDSHIP.
C Enter an ORDER ON DEFENDANT'S
MOTION FOR APPOINTMENT OF
ATTORNEY. If denied, specifically state
the reasons for not granting the
defendant’s request.
WAIVER OF RIGHT TO AN ATTORNEY:
Rule 7.1(c) of the Mississippi Rules of Criminal
Procedure sets forth the procedures that the
judge MUST follow when a defendant desires to
act as his/her own attorney.
The BEST PRACTICE is to conduct a Rule 7.1(c)
examination whenever the defendant is not
represented by an attorney, or an appointed
attorney, on a matter that could result in the
loss of liberty AND to have the defendant sign a
corresponding written waiver that contains the
court’s advisement.
THE DEFENDANT’S DECISION TO PROCEED
WITHOUT AN ATTORNEY MUST BE
KNOWINGLY AND VOLUNTARILY MADE.
WITHDRAWAL OF WAIVER:
Rule 7.1(d) of the Mississippi Rules of Criminal
Procedure provides:
"A defendant may withdraw a waiver of the
right to counsel at any stage of the proceedings
but will not be entitled to repeat any
proceeding previously held or waived solely on
the grounds of the subsequent appointment or
retention of counsel."
Prepared by the Mississippi Judicial College for training
and educational purposes pursuant to Section 37-26-1.
JUSTICE COURT / MUNICIPAL COURT
BENCH CARD
ON RELEASE PROCEDURES
RELEASE PROCEDURES ARE SET FORTH IN RULE
8 OF THE MISSISSIPPI RULES OF CRIMINAL
PROCEDURE. READ THE RULE!
CRIMES NOT BAILABLE:
CAPITAL OFFENSES “(a) when the proof is
evident or presumption great; or (b) when the
person has previously been convicted of a
capital offense or any other offense punishable
by imprisonment for a maximum of twenty (20)
years or more.” Miss. Const. art. 3, § 29.
RELEASE PROCEDURES FOR BAILABLE CRIMES:
TO IMPOSE ANY CONDITION OF RELEASE IN
ADDITION TO THE MANDATORY CONDITIONS
SET FORTH IN RULE 8.4(a), the judge MUST find,
after taking into account the factors set forth in
Rule 8.2(a)(1) through (15), that releasing a
defendant on personal recognizance:
C will not reasonably assure the
defendant’s appearance, or
C will pose a real and present danger to
others or the public at large.
WITHOUT THAT FINDING, the judge is required
to release the defendant on his/her personal
recognizance ONLY SUBJECT TO the mandatory
conditions set forth in Rule 8.4(a) of the
Mississippi Rules of Criminal Procedure.
IF THE JUDGE DOES MAKE THAT FINDING, then
the judge shall impose the LEAST ONEROUS
CONDITION(S) contained in Rule 8.4 that will
reasonably assure the defendant’s appearance
or that will eliminate the risk of harm to others
or the public at large.
IN DETERMINING THE LEAST ONEROUS
CONDITION(S) FOR RELEASE, the judge must
again take into account the factors set forth in
Rule 8.2(a)(1) through (15). Allowable
additional conditions of release are listed in
Rule 8.4(b).
WHEN IMPOSING ADDITIONAL CONDITIONS,
keep in mind that every accused person is
presumed innocent. Your duty is to ensure that
a presumptively innocent person is released
under reasonable conditions pending trial.
WHEN ISSUING AN ORDER OF RELEASE, the
judge MUST inform the defendant of the
conditions of release, the possible
consequences for violating them, and that a
reported violation may result in the immediate
issuance of an arrest warrant.
PROCEDURES FOR THE REVIEW OF CONDITIONS
AND REVOCATION OF RELEASE are set forth in
Rule 8.6 of the Mississippi Rules of Criminal
Procedure.
REQUIRING THE COURT TO CONSIDER THE
FACTORS LISTED IN RULE 8.2(a)(1) through (15)
WHEN IMPOSING ANY NON-MANDATORY
CONDITION(S) OF RELEASE IS “TO ENSURE
THAT A JUDGE NOT GIVE INORDINATE WEIGHT
TO THE NATURE OF THE PRESENT CHARGE.”
Prepared by the Mississippi Judicial College for training
and educational purposes pursuant to Section 37-26-1.
JUSTICE COURT / MUNICIPAL COURT
BENCH CARD
ON REVOCATION PROCEEDINGS
PROCEDURES ON REVOCATION PROCEEDINGS
ARE SET FORTH IN RULE 27 OF THE MISSISSIPPI
RULES OF CRIMINAL PROCEDURE. READ THE
RULE!
JUSTICE COURT JUDGES may suspend
sentences, or the execution of sentences, as set
forth in Section 99-19-25.
MUNICIPAL COURT JUDGES may suspend
sentences, or the execution of sentences, as set
forth in Section 21-23-7(5).
Rule 27.4 of the Mississippi Rules of Criminal
Procedures provides: “Proceedings to revoke
or modify any other suspended sentence or
period of post-release supervision shall be
conducted in accordance with Rule 27.”
BEFORE REVOKING OR MODIFYING A
SUSPENDED SENTENCE, THE JUDGE MUST
FOLLOW THE PROCEDURES IN RULE 27.
RULE 27 REQUIREMENTS:
C A petition giving sufficient notice of the
alleged violations and the evidence to
be relied upon.
C A summons to appear and show cause.
C An advisement on the right to testify, to
present witnesses and evidence, and to
cross-examine adverse witnesses.
C An advisement that comports with Rule
27.3(d) on the right to an attorney, and
if indigent, an appointed attorney FREE
OF COST.
C A hearing by the trial judge as set forth
in Rule 27.3(f).
REVOCATION HEARINGS:
C Require proof by a preponderance of
the evidence.
C Allow the judge to receive any reliable,
relevant evidence not legally privileged,
including hearsay.
C Allow the defendant a FULL
OPPORTUNITY to present testimony,
confront and cross-examine adverse
witnesses, and to present evidence in
his/her defense.
IF THE ALLEGED VIOLATION INVOLVES A
CRIMINAL OFFENSE, then the judge must warn
the defendant that incriminating statements
may be used against him/her at a subsequent
proceeding or trial. MRCrP 27.3(2).
IF THE ALLEGED VIOLATION IS THE
NONPAYMENT OF A FINE, FEE, RESTITUTION,
AND/OR COURT COSTS, then the judge MAY
NOT revoke a suspended jail sentence UNLESS
he/she examines the reasons for nonpayment
and makes a written finding that the defendant
could have satisfied payment but refused to do
so. See Bearden v. Georgia, 461 U.S. 660 (1983).
AT THE HEARING, the judge may reduce the
amount of the remaining fines, fees, restitution,
and/or court costs, allow additional time for
payments, and/or order community service
with credit received at the highest current
federal minimum wage. All orders revoking a
suspended sentence must state the evidence
relied upon and the reasons for the decision.
Prepared by the Mississippi Judicial College for training
and educational purposes pursuant to Section 37-26-1.
