In Re: Mississippi Rules of Appellate Procedure
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Serial: 138903
IN THE SUPREME COURT OF MISSISSIPPI
No. 89-R-99027-SCT
IN RE: MISSISSIPPI RULES OF
APPELLATE PROCEDURE
ORDER
This matter is before the Court on the Motion to Amend Mississippi Rules of
Appellate Procedure filed by the Hinds County Bar Association. The petitioner asks the
Court to make editorial changes and typographical corrections to the Mississippi Rules of
Appellate Procedure to promote clarity. After due consideration, the Court finds that the
motion should be granted in part and denied in part. The Mississippi Rules of Appellate
Procedure should be modified and corrected as set forth in Exhibit A to this order.
IT IS THEREFORE ORDERED that the Motion to Amend Mississippi Rules of
Appellate Procedure filed by the Hinds County Bar Association is hereby granted in part and
denied in part. The Mississippi Rules of Appellate Procedure are modified and corrected as
set forth in Exhibit A to this order.
IT IS FURTHER ORDERED that the Clerk of this Court shall spread this order upon
the minutes of the Court and shall forward a true certified copy hereof to West Publishing
Company for publication as soon as practical in the advance sheets of Southern Reporter,
Second Series (Mississippi Edition) and for publication in the Mississippi Rules of Court.
SO ORDERED, this the 18 th day of April, 2007.
/s/ William L. Waller, Jr.
WILLIAM L. WALLER, JR., PRESIDING JUSTICE
EXHIBIT A
1. In the Comment to Miss. R. App. P. 2, in the last paragraph, the following
sentence should be stricken.
Federal practice, by not permitting the suspension of comparable F ED.R.A PP.P.
4(a)(4), see Acosta v. Louisiana Department of Health and Human Resources, 478 U.S.
251, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986), creates an injustice which these rules are not
intended to perpetuate. Also, because procedures for criminal appeals apply to postconviction relief proceedings, M ISS.C ODE A NN. § 99-39-25(1); Williams v. State, 456
So.2d 1042, 1043 (Miss.1984), the Supreme Court may suspend the rules and extend the
time for taking an appeal in those proceedings. Rules 2(c) and 4(g) thus supplant the
procedure described in Jones v. State, 355 So.2d 89, 90 (Miss.1978).
2. In the Comment to Miss. R. App. P. 4, paragraph nine, the following sentence
should be stricken and in paragraph eleven, a citation updated.
Rule 4(g) is based on Fed. R. App. P. 4(a)(5). Rule 4(g) has been drafted to cure
ambiguities in the federal rule. A motion filed before expiration of the 30 day period may
be ex parte and may be granted for any "good cause." This standard is identical to that
found in Rule 26. The extension may not go beyond 30 days after the time prescribed in
Rule 4(a).
...
On the other hand, a party misled by actions of the court can establish excusable
neglect. See Chipser v. Kohlmeyer & Co., 600 F. 2d 1061, 1063 (5th Cir. 1979); In re
Morrow, 502 F. 2d 520, 522 (5th Cir. 1974) (dictum). Excusable neglect may be shown
where a timely mailed notice was late because of unanticipated and uncontrollable delays
in the mail. Fallen v. United States, 378 U.S. 139, 84 S. Ct. 1689, 12 L. Ed. 2d 760
(1964). See generally, 9 20W. Moore, Federal Practice 204.13[1.-3] § 304-13.
3. In the Comment to Miss. R. App. P. 9, the first sentence should read “judgment of
conviction” rather than “judgment of convictions.”
Rule 9(a) is substantially patterned after Fed. R. App. P. 9(a). Subdivision (b)
continues Mississippi practice for release after judgment of convictions provided in Unif.
Crim. R. Cir. Ct. Prac. 7.02, Miss. Code Ann. §§ 99-35-105, -107, -109 (1994), Miss.
Code Ann. § 99-35-115 (1994), Miss. Code Ann. § 99-35-117 (1994). Both 9(a) and (b)
require the party seeking release to provide the appellate court with certain information
relevant to release. See former 5th Cir. R. 9.1, 9.2. Normally these facts will be part of
the record in the trial court. Both petitions under 9(a) and motions under 9(b) will be
handled by the appropriate appellate court as motions under Rule 27.
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4. In Miss. R. App. 17(h) and (i), the headings should be changed, as follows:
(h) Supplemental Briefs; Record on Review. Upon notice of a grant of
certiorari, any party may, whether requested by the Court or not, within 10 days, file an
original and 10 copies of a supplemental brief not to exceed 10 pages. No additional time
or pages shall be allowed for supplemental briefs. The Supreme Court may require
supplemental briefs on the merits of all or some of the issues for review. The Supreme
Court's review on the grant of certiorari shall be conducted on the record and briefs
previously filed in the Court of Appeals and on any supplemental briefs filed. The
Supreme Court may limit the question on review.
(i) Oral Argument; Supplemental Briefs. Oral argument shall not be allowed,
unless requested by the Supreme Court. The Court may require oral argument.
5. The Comment to Miss. R. App. P. 21, first paragraph, the second sentence should
say the paragraph “was originally modeled on Fed. R. App. 21 as modified by the
Fifth Circuit R. 21.”
Rule 21 applies to all requests for remedial writs under Miss. Code Ann. § 9-1-19
(Supp. 1994). Except for minor changes, it is identical to The rule was originally
modeled on Fed. R. App. P. 21 as modified by 5th Cir. R. 21. With the exception of the
writ of mandamus required by Rule 15, a party must seek relief in the trial court before
obtaining the extraordinary relief of a remedial writ from the Supreme Court. The rule
preserves the Mississippi requirement that papers attached to a petition must be certified.
It does not require, however, that the petition be under oath. Petitions will be considered
by a panel of the appropriate court rather than by a single justice or judge. In emergency
circumstances in which panel consideration would be impractical due to requirements of
time, however, a single justice or judge may hear the petition and issue a temporary stay
pursuant to Rule 8. A single justice's or judge's decision not to grant a stay may be
reviewed by the appropriate court.
6. At the end of the Comment to Miss. R. App. P. 22, in the bracketed text, the date
“June 24, 199" should be changed to “June 24, 1999.” The comma after “January 1,
1999,” should be changed to a semi-colon and the comma before “July 27, 2000"
should be deleted.
[Adopted to govern matters filed on or after January 1, 1995; amended effective
January 1, 1999, ;June 24, 1999; amended effective, July 27, 2000; amended effective
February 10, 2005.]
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7. In Miss. R. App. P. 27(b)(5), the words “for briefs” should be inserted between the
word “limit” and the word “up.” Also, the words, “pages” should follow the
numbers 75 and 125.
(b) Determination of Motions for Procedural Relief. Notwithstanding the
provisions of Rule 27(a) as to motions generally, motions for procedural relief may be
acted upon at any time without awaiting a response. When unopposed, motions for
specified types of procedural orders may be disposed of by the clerk of the Supreme
Court. The clerk may rule on motions:
(1) for enlargement of time permitted by these rules for periods not to exceed a total
of 60 days,
(2) to make corrections in briefs or pleadings filed at the request of counsel filing
the brief or pleading,
(3) to withdraw as counsel and/or substitute appearance of counsel, except in
appeals from the imposition of a sentence of death,
(4) to voluntarily dismiss appeals where sought by the appellant or the crossappellant, unless the case has been submitted to the Court for decision,
(5) to increase the page limit for briefs up to 75 pages, or up to 125 pages in appeals
from the imposition of a sentence of death,
...
8. In Miss. R. App. P. 28(e)(1), the phrase “From and after July 1, 1997" should be
stricken. In 28(e)(2)(i), a citation example should be added.
(e) References in Briefs to the Record and Citations. All briefs shall be keyed by
reference to page numbers (1) to the record excerpts filed pursuant to Rule 30 of these
Rules, and (2) to the record itself.
(1) From and after July 1, 1997, tThe Supreme Court and the Court of Appeals shall
assign paragraph numbers to the paragraphs in all published opinions. The paragraph
numbers shall begin at the first paragraph of the text of the majority opinion and shall
continue sequentially throughout the majority opinion and any concurring or dissenting
opinions in the order that the opinions are arranged by the Court.
(2) All Mississippi cases shall be cited to either:
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(i) the Southern Reporter and, in cases decided prior to 1967, the official
Mississippi Reports (e.g., Smith v. Jones, 699 So.2d 100 (Miss. 1997); Thompson v.
Clark, 251 Miss. 555, 170 So.2d 225 (1965)); or
...
9. In Miss. R. App. P. 28(g), the following should be added.
(g) Length of Briefs. Except by permission of the court, principal briefs shall not
exceed 50 pages, and reply briefs shall not exceed 25 pages, exclusive of pages
containing the statement with respect to oral argument, any certificates of counsel, the
table of contents, tables of citations, and any addendum containing statutes, rules, or
regulations.
10. In Miss. R. App. P. 32(a) the phrase “font face” should be changed to “point
type.” Also, the bracketed text at the end of the rule should not contain the word
“provide.”
(a) Form of Briefs and Record Excerpts. Briefs and record excerpts may be
produced by standard commercial printing or by any duplicating or copying process
which produces a clear black image on white paper. The text in the body of briefs shall
appear in at least 12 font face point type; the text of foot notes must appear in at least 11
font face point type.
...
[Amended effective May 27, 2004 to provide revise the size of fonts in the text of
briefs.]
11. In Miss. R. App. P. 38, a portion of the first sentence of the rule and the last
sentence of the Comment should be stricken, as follows:
In a civil case to which Miss. Code Ann. § 11-3-23 (1991) does not apply, if the
Supreme Court or Court of Appeals shall determine that an appeal is frivolous, it shall
award just damages and single or double costs to the appellee.
Advisory Committee Historical Note
Effective January 1, 1995, Miss.R.App.P. 38 replaced Miss.Sup.Ct.R. 38, embracing
proceedings in the Court of Appeals. 644-647 So.2d LXXVIII (West Miss.Cases 1994).
Comment
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Unlike Fed.R.App.P. 38, this rule applies only to civil appeals, and does not apply to
criminal cases. The rule applies when an appeal is frivolous. There is no requirement
that the appeal have resulted in delay.
The damages to be awarded may include attorneys' fees and other expenses incurred
by an appellee. Interest is treated separately and is governed by Rule 37.
This rule supplements and does not supplant the statutory 15% penalty now provided
by Miss. Code Ann. § 11-3-23 (1991).
12. In APPENDIX I. FORMS, Form 1, the phrase “vs.” should be added.
APPENDIX I. FORMS
FORM 1
IN THE
COURT OF THE
JUDICIAL
DISTRICT OF
COUNTY, MISSISSIPPI
PLAINTIFF
VS.
NO.
DEFENDANT
NOTICE OF APPEAL
13. In APPENDIX I. FORMS, Form 5, in the signature lines at the bottom of the
bracketed phrase [Guaranty or Surety Company] should be moved back toward the
left margin and aligned under [Principal], as indicated below:
[Principal]
BY: s/
[Principal or Attorney]
[Guaranty or Surety Company]
BY: s/
Agent and Attorney-in-Fact
[Guaranty or Surety Company]
[Address]*
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