Rule 6 Counsel on Appeal in Criminal Cases and Proceedings In Forma Pauperis in Criminal Cases

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

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

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

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

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

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

(c) Waiver of Counsel in Criminal Appeal.

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

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

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

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

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

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

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

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

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

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

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

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

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