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GEORGE A. WILLIAMS, CLARENCE BROWN, AND JOHNNY BROWN v. STATE OF MISSISSIPPI

SEPTEMBER 26, 1984

GEORGE A. WILLIAMS, CLARENCE BROWN, AND JOHNNY BROWN
v.
STATE OF MISSISSIPPI



BEFORE WALKER, P.J., HAWKINS, AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

ON MOTION FOR LEAVE TO FILE OUT OF TIME APPEAL

George A. Williams, Clarence Brown and Johnny Brown are each in the custody of the Mississippi Department of Corrections pursuant to sentences imposed by the Circuit Court of Yazoo County, Mississippi. On November 12, 1982, this trio

 of petitioners filed applications for habeas corpus relief in that Court. Ten days later, on November 22, 1982, the Circuit Court entered an order summarily denying petitioners any relief. Our problem arises from the fact that no one notified petitioners that their applications had been acted upon.

 On July 30, 1984, well after expiration of the time period within which any appeal to this Court should have been perfected, the three filed in this Court the instant motions. They seek leave to file an out of time appeal. For the reasons set forth below, both motions must be remanded to the Circuit Court. Because important issues are implicated, we write briefly.

 Petitioners' applications for habeas corpus relief must be treated as having been filed in accordance with Rule 8.07 of the Uniform Criminal Rules of Circuit Court Practice. Ball v. State, 437 So.2d 423, 425 (Miss. 1983).

 Rule 8.07 requires that each petition be examined promptly by the judge of the court in which the petition is filed and

 (3) If from the showing made by the petition it is manifest that the person whom, or on whose behalf, it is presented is not entitled to any relief, the Court can refuse to grant the writ and enter an appropriate order. "

 Apparently the trial judge acted under this provision when he entered his order of November 22, 1982.

 Obviously, the Circuit Court cannot just deny the petition and not tell anybody. The petitioner is entitled to notice when final action is taken. Particularly where a petitioner is incarcerated and has no ready access to the court's records or the clerk's office, he must be so notified.

 By analogy we note that the preceeding subsection in Rule 8.07 provides that

 (2) If the petitioner, upon examination, does not substantially comply with the requirements of this rule, it need not be entertained on its merits and the clerk shall so notify petitioner." [Emphasis added]

 Subsection (3) should be construed as though the words "and the clerk shall so notify petitioner" were included at its end the same as at the end of subsection (2).

 Petitioners now say to us that they would like to appeal the order of November 22, 1982. They say that, if they had known of entry of the November 22 order, they would have perfected their appeal timely. They charge that they cannot be deprived of the right to appeal by virtue of the Circuit Court's ...


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