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NOVEMBER 05, 1986





This case presents questions concerning the existence, in the circuit courts of this state, of the authority to hear appeals from justice courts via the ancient writ of certiorari and, if so, whether and on what bases the order of the Circuit Court here declining exercise of that authority may be disturbed in this Court upon further appeal. For the reasons explained below, we hold that the certiorari procedure was and is available in cases such as this, but that the Circuit Court's order denying the application for certiorari is on this record beyond our authority to disturb.

 This case arises in the context of the apparent conviction of Nolen Merritt in the Justice Court of Greene County, Mississippi, of the misdemeanor offenses of (a) hunting deer at night with the aid of a light and gun, (b) failure to yield to a blue light and (c) resisting arrest. We say" apparent "for the record before us contains no judgment of conviction which, of course, would remove any doubt of the offenses of which Merritt had been found guilty. It appears from the record and the briefs, again apparently, that upon these convictions Nolen Merritt was sentenced to five days imprisonment in the county jail and to pay a fine in the amount of $1,366.00. The judgment imposing this sentence is likewise not a part of the record before us.

 The parties seem to agree that Merritt's conviction in the Justice Court was entered on October 29, 1983. There further appears no dispute about the fact that no appeal was perfected from that judgment of conviction. The record does reflect, however, that on March 12, 1984 - some four and a half months following the apparent date of conviction - Nolen Merritt filed in the Circuit Court of Greene County, Mississippi, his petition for a writ of certiorari. In that petition he asked the Circuit Court to review the prior proceedings in his case in the manner provided by law. See Miss. Code Ann. 11-51-93 (1972).

 On December 19, 1984, the Circuit Court held that the petition was" not sufficient and not well taken and no good grounds were shown that a new trial should be granted "and, accordingly, denied the petition for a writ of certiorari. Merritt has appealed to this Court, urging that the aforesaid order of the Circuit Court was erroneously entered and should be reversed.


 We are called upon at the outset to consider whether the writ of certiorari is still available to afford review in the circuit court to one convicted of a misdemeanor in justice court. That this procedural vehicle was available in the past has been recognized in numerous cases. See, e.g., Fassman v. Town of Centreville, 184 Miss. 520, 526, 186 So. 641, 642 (1939); Ex Parte Grubbs, 80 Miss. 288, 290, 31 So. 741, 742 (1902). It remains a part of our statute law, codified as Miss. Code Ann. 11-51-93 (1972). See Keady, Appeals To Circuit Court, 21st Ann. Miss. Law Institute 232-34 (1966).

 The Attorney General argues, however, that from and after August 15, 1979, the sole procedure for obtaining review of a criminal conviction entered by a justice court is that provided in Rule 7.03, Miss. Unif. Crim. R. Cir. Ct. P. That rule provides that an appeal may be perfected" by filing written notice of appeal within forty days of such judgment. . . . "Because no appeal was so perfected within forty days of October 29, 1983, the Attorney General argues that the judgment below must be affirmed - the petition for a writ of certiorari having been filed some 134 days after October 29, 1983.

 Assuming, arguendor that we have the authority to replace the certiorari procedure with a single method of appellate review, see, e.g., Moran v. Necaise, 437 So.2d 1222, 1225 (Miss.1983), we have not yet done so. We find nothing in Rule 7.03 or in any other part of the Uniform Criminal Rules of Circuit Court Practice which may be construed to have abolished or supplanted the certiorari procedure as we have heretofore known it. The certiorari procedure exists in criminal cases today as in the past.

 There may well be good reason for retaining the certiorari procedure as a backup to the ordinary appeal and trial de novo authorized in the event of convictions in the justice court. 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.


 Having held that the authority to review justice court criminal convictions via writ of certiorari remains in the circuit court, we turn to the question of whether we may disturb the present Circuit Court declination to exercise that authority. The critical point here is that ...

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