Procedure for filing indigent Appeal against conviction.
Mississippi Rule of Appellate Procedure 28(a)(1)-(4) & (7) governs Appeals on behalf of indigent persons.
Fourteenth Amendment right to appellate counsel:
In Smith v. Robbins, 528 U.S. 259, 273-74, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), the United States Supreme Court, speaking through Justice Thomas, stated that although the Court had previously laid down a “prophylactic framework” to vindicate the Fourteenth Amendment right to appellate counsel, it “expressly disclaimed any pretensions to rulemaking authority for the States in the area of indigent criminal appeals.” Instead, the Court stated, “States may and, we are confident, will craft procedures that, in terms of policy, are superior to, or at least as good as” the framework the Court introduced in Anders v. California, 386 U.S.*746 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
¶ 10. Before reviewing California’s procedure, the Court stated,
[I]t is important to focus on the underlying goals that the procedure should serve to ensure that those indigents whose appeals are not frivolous receive the counsel and merits brief required byDouglas, and also to enable the State to `protect itself so that frivolous appeals are not subsidized and public moneys are not needlessly spent.’ . . . For although, under Douglas, indigents generally have a right to counsel on a first appeal as of right, it is equally true that this right does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal.
The result of above case was laying of following procedure by Supreme Court of Missisipi in Turner v. State, 818 So.2d 1186:
The appellate counsel must:
(1) determine that the defendant is “unlikely to prevail on appeal.”
(2) file a brief indicating “that he scoured the record thoroughly[,]” and “refer to anything in the record that might arguably support the appeal[,]” and
(3) advise client of his right to file a pro se supplemental brief.
At this point, the appellate court shall then make its own independent review of the record, in the manner followed in all other cases.
The above procedure resulted in every appeal being a “no brief”:
To allevate the hardship, the above Turner case was directives were modified with these directives in Lindsey v. State:
The following procedure to govern cases where appellate counsel represents an indigent criminal defendant and does not believe his or her client’s case presents any arguable issues on appeal:
(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4),(7);see also Robbins, 528 U.S. at 280-81, 120 S.Ct. 746 (stating that “[c]ounsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing. See Robbins, 528 U.S. at 280-81, 120 S.Ct. 746; Turner, 818 So.2d at 1189.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief. Turner, 818 So.2d at 1189; cf. Wende, 600 P.2d at 1074.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal. Robbins, 528 U.S. at 280, 120 S.Ct. 746 (citing Wende, 158 Cal.Rptr. 839, 600 P.2d at 1074).
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.