Before Prather, C.j., Banks And McRAE, JJ.
The opinion of the court was delivered by: Banks, Justice,
DATE OF JUDGMENT: 07/08/97
TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND RENDERED - 1/14/99
¶1. This case raises the issue of whether a trial court has the jurisdiction to impose sanctions upon an attorney not engaged in a proceeding before the trial court and whether the district attorney has standing to request that the attorney be required to make monetary restitution to the county without prior approval by the attorney general. We find that the trial court did not have the jurisdiction to discipline the attorney. Nor did the district attorney have standing to seek monetary damages without prior approval from the attorney general. Accordingly we reverse and render.
¶2. This matter arises out of a criminal proceeding in the Circuit Court of the First Judicial District of Hinds County, Mississippi, styled State v. Kenneth Tornes, Cause No. 96-2-103. Kenneth Tornes ("Tornes") was charged with several counts of murder and aggravated assault. On May 1, 1996, during Tornes' initial appearance before Municipal Judge Oran Page it was ascertained that Tornes, as a former employee of the Jackson Fire Department, should have had approximately Twenty Thousand Dollars ($20,000.00) in contributions to the Public Employees Retirement System of Mississippi ("PERS"). Despite this determination, Judge Page temporarily appointed the Hinds County Public Defender's Office to represent Tornes. Judge Page testified that he was concerned that if a public defender was not appointed for Tornes "the detectives would have an opportunity to perhaps get a confession from him...[and] that the whole thing might have been reversed for some irregularities in the procedure." Judge Page made the appointment on a temporary basis to protect the defendant's rights until the retirement funds could be used to hire an attorney; however, he did not make arrangements to determine whether the retirement funds were available to Tornes for the employment of an attorney.
¶3. In appointing the Hinds County Public Defender's Office to defend Tornes, Judge Page had Tornes sign an Affidavit of Indigency, which stated in pertinent part:
I, the undersigned, being first duly sworn, depose and say:
I am absolutely destitute and own no personal property or automobiles of any kind whatsoever, nor are there any monies or property due and owing to me from any person. I have no money on deposit in any bank or savings institution. I am unable to obtain any pay counsel to defend me or to pay any incidental expenses which may be incurred in the conduct of my defense.
Judge Page admits that he did not go over the assertions contained in the affidavit with Tornes nor was Tornes placed under oath prior to signing the affidavit.
¶4. In August of 1996, Tornes hired attorney Sanford Knott ("Mr. Knott") to draft a will, draft a power of attorney, obtain his antique pickup from the Jackson Police Department, and to collect and disburse his retirement funds. Mr. Knott took the steps necessary to procure the disbursement of the retirement funds held in Tornes' PERS account. As a result of Mr. Knott's efforts, on September 15, 1996, PERS issued a check in the amount of Sixteen Thousand, One Hundred Twenty-two and 95/100 Dollars ($16,122.95) made payable to Kenneth D. Tornes in care of Attorney Sanford Knott, Post Office Box 1208, Jackson, MS 39215-1208.
¶5. Upon receipt of the check Mr. Knott endorsed the check and had it deposited to his clients trust account. On September 26 and 27, 1996, the majority of the funds were distributed to the surviving children of Tornes' ex-wife, who he was accused of murdering. Mr. Knott retained One Thousand Fifty Dollars ($1,050.00) for attorney's fees. Mr. Knott did not participate in representing Tornes in the criminal proceedings.
¶6. In October 1996 Mr. Knott sought to obtain possession of Tornes' antique truck which was being held in the Jackson Police Department impound. As a result of Mr. Knott's efforts the District Attorney filed a Motion for Review of Indigency. The Motion, which was served on Mr. Knott on March 13, 1997, alleged that Tornes misrepresented his indigency by signing the Affidavit of Indigency and that Mr. Knott assisted Tornes in obtaining and safeguarding his assets. The State requested that the trial court terminate Tornes' representation by the public Defender's ...