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STATE OF MISSISSIPPI v. DARWIN M. MAPLES

FEBRUARY 15, 1984

STATE OF MISSISSIPPI
v.
DARWIN M. MAPLES



EN BANC

PRATHER, JUSTICE, FOR THE COURT:

ON PETITION FOR WRIT OF PROHIBITION

This petition for a writ of prohibition, filed by the District Attorney of the Nineteenth Circuit District, seeks to prohibit the Circuit Court of Jackson County from granting an appearance bond to Bryan R. Burke, whose conviction is on appeal.

 The question presented is whether the circuit court has lost jurisdiction to grant an appearance bond after Burke's appeal to this Court was perfected. We hold that the circuit

 court did have such concurrent jurisdiction with this Court. Therefore, the writ of prohibition is denied.

 I.

 On May 5, 1983, Bryan R. Burke, whose appeal is presently pending, was convicted of attempted armed robbery in the Circuit Court of Jackson County, Honorable Darwin M. Maples presiding. On June 13, 1983, an advance certificate of appeal was issued to this Court advising of Burke's conviction and sentence.

 A petition to have an appearance bond set was heard on September 16, 1983, in the Circuit Court of Jackson County. The state's position is that the circuit court lost jurisdiction since appeal had been perfected in this Court; the defendant, Burke, contends that the circuit court has jurisdiction for purposes of setting an appearance bond under Mississippi Code Annotated section 99-35-115 (1972), concurrent with this court.

 Judge Darwin Maples granted an appearance bond to defendant Burke in the amount of $40,000.

 This writ of prohibition asks that Judge Maples be prohibited from entering such an order without jurisdiction, that such appearance bond be set aside, and that the defendant, Burke, be remanded to the custody of the Jackson County Sheriff.

 II.

 Mississippi Code Annotated section 99-35-115 (1972) is dispositive here. That statute entitled" Bail after conviction of felony ", states:

 A person convicted of treason, murder, rape, arson, burglary or robbery shall not be entitled to be released from imprisonment pending an appeal to the supreme court, unless it be so ordered by the court in which conviction is had, or by supreme court, or by the judge who presided at the conviction, or the judge of the district in which conviction was had, or a judge of the supreme court in vacation of said court; and the making of such order shall be a matter of discretion with either the court or judge to be exercised with the greatest caution, and only when the peculiar circumstances of the case render it proper. A person convicted of any felony other than those

 enumerated in the foregoing paragraph shall be entitled to be released from imprisonment on bail pending an appeal to the ...


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