Author Archives: Bill Kellum

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Mississippi law provides that a person can be charged with “accessory after the fact” if he helps a person avoid arrest, trial or conviction for committing a felony.  According to Mississippi Code Section 97-1-5,.

(1) Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that the person had committed a felony, with intent to enable the felon to escape or to avoid arrest, trial, conviction or punishment after the commission of the felony, on conviction thereof shall be imprisoned in the custody of the Department of Corrections as follows:

(a) If the felony was a violent crime:
(i) If the maximum punishment was life, death or twenty (20) years or more, for a period not to exceed twenty (20) years; or
(ii) If the maximum punishment for the violent felony was less than twenty (20) years, for a period not to exceed the maximum punishment.
(b) If the felony was a nonviolent crime:
(i) If the maximum punishment for the nonviolent felony was ten (10) years or more, for a period not to exceed ten (10) years; or
(ii) If the maximum punishment for the nonviolent felony was less than ten (10) years, for a period not to exceed the maximum punishment.

In the Mississippi case of White v. State, the Court held that to be found guilty of accessory after the fact, the State must prove that the defendant knew that the person committed a felony, and that the defendant intended to help the person escape or avoid capture and prosecution.  id. 851 So.2d 400 (2003).

Further, if the defendant intended to assist the felon in avoiding arrest, the State must prove that the efforts made to help the felon actually assisted him. id. 851 So.2d 400 (2003).  Put differently, if the defendant provided assistance or aid to the felon, but the aid did not actually help him, then the defendant is not guilty of accessory after the fact in Mississippi.  Under Mississippi criminal law, a person can not be convicted of both committing the underlying crime, and as an accessory after the fact.

Additionally, the help given to the felon must have been given after the crime was committed, not before.  If the assistance was given prior to the crime being completed, then the person giving the assistance is guilty of accessory before the fact and is a principal to the crime.  Of course, the guilt or innocence of a defendant charged with accessory after the fact will depend on the specific facts of each case.  Accessory after the fact is often difficult for the State to prove, and can be defended with relative ease.

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Often when probating an estate, the disposition of the decedent’s property to a third party, non-heir will be necessary.  The executor may accomplish such a sale through the execution of an executor’s deed.  An executor’s deed is a deed used by an executor to convey or transfer property out of the estate of a person who died with a will.  An executor’s deed should contain the following information:

  • Executor’s name;
  • Language that the executor is conveying the property in his capacity as executor;
  • The name of the decedent (the person who died and left the will);
  • Language that the deed is being executed pursuant to the terms of the will;
  • Language that the will has been offered for probate;
  • The legal description of the property being conveyed; and
  • The signature of the executor.

The heirs of the decedent should also execute a Quitclaim Deed deed in conjunction with the executor.  This will prevent future challenges to the conveyance by the heirs. An executor’s deed should be recorded in the real estate records of the county in which the property being conveyed is located.

Mississippi Code Ann § 91-7-187. Sale of land in preference to personalty provides that the executor must petition the court for the authority to sell decedents property holding that:

When the estate of any deceased person consists of real and personal property and it shall be necessary to sell a portion thereof, the chancery court, on petition of the executor, administrator, legatees or distributees, being satisfied that it would be to the interest of the distributees or legatees, may decree a sale of the real estate in preference to the personal estate.

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 When a person dies with a will, that person has died “testate” which means that a “probate estate” must be opened in the Chancery Court.  In Mississippi, chancery courts have jurisdiction over estate matters.  The probate attorney will initiate the probate process by filing a “Petition to Open Estate”.

If the court finds the Petition meets all requirements imposed by law, letters testamentary are granted to the person who will administer the estate or, the  “executor”.  The letters testamentary are documents evidencing the executor’s power to act on behalf of the estate.   At this time, the executor must execute a statutorily prescribed oath known as the “Oath of Executrix”.

The Executor must then place a “Notice to Creditors” in a publication circulated in the decedent’s county of residence.  Notice to creditors must be published once a week for three consecutive weeks.  If no creditors register a claim against the estate within 90 days, the claim is barred.

Once it is determined that no claims were registered, the estate attorney, will then petition the court to distribute assets and close the estate.  Upon completion of all probate matters, the attorney will then file a “Statement of Compliance” with court.

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A subpoena is a writ issued by the court in which a civil action has been filed.  Subpoenas are issued by the Circuit Clerk and served on a person or entity.  There are generally two types of Subpoenas:  the Subpoena Ad Testificandum, which seeks testimony from the person or entity, or the Subpoena Duces Tecum which seeks documents from the person or entity.

Generally speaking, when a subpoena is to be served upon an individual, the attorney directing the service will hire a process server for service.  As the information or testimony required is time sensitive, an affidavit of service from the process server is returned to the requesting attorney.  The affidavit is then filed with the clerk and made a part of the record.

Upon service of the Subpoena, the receiving party must respond in the manner and time period as ordered.  If the receiving party fails to respond with the requested testimony or document production, the serving party may file a Motion for Contempt and Sanctions.  The party serving the subpoenas can be sanctioned if the court finds that the power was exercised to harass or burden the recipient.

Although considered burdensome by the recipient, Subpoenas are an effective discovery tool in both civil and criminal cases.

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Tax sales take place when there are overdue taxes on real estate. Mississippi tax sales are generally held the last Monday in August with notice by publication.  At the tax sale, the the Chancery clerk utilizes an overbid system wherein taxes are auctioned by competitive bid. Successful bidders will pay the taxes due for the real estate.  Upon payment of those taxes, a lien is placed on the property for the buyer.  A tax lien certificate is issued to the buyer as proof of his claim against the property.

If the the original owner does not redeem the property after two years, the buyer will be given a sales deed making him the record title owner.  To redeem the property, the original owner must pay the amount he owed plus any taxes since paid on the property and interest and fees.

At the end of the redemption period, the county Chancery Clerk must send notice to the original owner that the final sale of the property will take place. By statute, the sheriff is required to serve notice on the original property owner.  Notice must also be sent by registered or certified mail.  Failure to give proper notice could be grounds for invalidating the tax sale.

[1] Miss. Code Ann. § 27-43-3 (Supp. 2009).

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Tax sales are disfavored by Mississippi courts.  And because the the Courts require strict adherence to Notice requirements, property owners who have lost property to tax sales have recourse to have tax sales set aside. Mississippi Code Annotated section 27-43-3 (Supp.2009) requires that “notice be given to property owners of a tax sale before a valid tax deed may be issued to the purchaser of the subject property. Under this statute, service of notice must be made by the sheriff, and notice must also be sent by registered or certified mail.” MS Code Ann 27-43-3 (Supp. 2009) requires proper notice be delivered to property owners informing them of a pending tax sale.  If that notice is returned undelivered, the Clerk is required to have notice delivered by the Sheriff.  If that notice is returned undelivered, the clerk must conduct additional search and inquiry to determine the owners address.  If additional search and inquiry does not produce an address for the owner, the clerk must make an affidavit detailing the steps taken to ascertain the owners address.  The affidavit must be made permanent part of the tax sale record.  If the clerk fails to follow these requirements, the land owner may present that evidence in his Petition to Set Aside Tax Sale. The Mississippi Court of Appeals held that ” In Mississippi, it is public policy to favor and protect landowners from [the sale of their land] for taxes.”C.F.P. Properties, Inc. v. Roleh, Inc., 56 So.3d 575 (Miss.App. 2010) citing  Lawrence v. Rankin, 870 So.2d 673, 676 (¶ 13) (Miss.Ct.App.2004). Further, section 27-43-3 ” must be given a strict construction, and its requirements fully satisfied.” Id. at (¶ 14). Failure of the chancery clerk to file the requisite affidavits renders a tax deed void. Id. In the case of Roleh the Chancery court found for the landowner that the lack of an affidavit by the court documenting attempts to provide notice was sufficient grounds to set aside the tax sale.  On appeal, the Court of Appeals affirmed the lower court’s holding and voided the final sale of the commercial property. The Court of Appeals stated that the policy in Mississippi is to favor and protect the original landowner from sale of land for failure to pay taxes.

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Court ordered visitation is obviously an important part of any Order of Child Support, Custody and Visitation Agreement.  While the custodial parent is obligated to allow visitation by the non-custodial parent, the non-custodial parent is not necessarily under an obligation to exercise visitation.

The custodial parent may prevent visitation only under appropriate circumstances or for reasons detailed per court order.  A valid reason would be if the visiting parent was under the influence of drugs or alcohol or if the child was ill.  An invalid reason would be to withhold visitation because of failure to pay child support or bad weather.

Non-custodial parents seeking a modification in custody due to interference with visitation will have great difficulty.  The Mississippi Court of Appeals has stated that, only in ” extraordinary cases,” will ” the interference with a non-custodial parent’s visitation ris[e] to the level where it constitutes a material change in circumstances.” Ellis v. Ellis, 952 So.2d 982, 990 (Miss.Ct.App.2006) (” Ellis II ” ) (quoting Ash, 622 So.2d at 1266) (emphasis added). The parent seeking modification must show that the interference was “continued and obstinate” A.M.L. v. J.W.L., 98 So.3d 1001 (Miss. 2012);Potter v. Greene, 973 So.2d 291, 293 (Miss.Ct.App.2008).

What is considered “continued and obstinate” will depend on the evidence and the judge hearing the case.  A most likely scenario would be continued interference for months at a time.  The courts in general take a dim view of visitation interference regardless of the frequency.  A custodial parent found abusing the visitation provisions would at the very least be admonished or sanctioned by the Court.

 

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In Mississippi, the definition of “motor vehicle” under the statute for drunk driving includes but is not limited to cars, four wheelers, golf carts and even lawn mowers.  Basically any vehicle which is motorized qualifies as a vehicle for DUI purposes.

However, the motor vehicle must have been operated on a public highway, street, or sidewalk to be in violation of Mississippi drunk driving laws.    

 

 

 

Its beautiful Saturday afternoon, you’re mowing your lawn and having a few beers.   There’s no way you could be arrested for Driving Under Influence right?  Wrong.  Mississippi drunk driving statute   you think your’e okay having a few beers while operating that lawnmower, think again.

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In family law practice, the non-custodial parent of a child may petition the court for a change of custody.  To accomplish this, the non-custodial parent must file a Petition for Custody Modification in the court that granted the custody agreement.  In Mississippi, a parent demandng a change in custody must prove that there “has been a material change in circumstances adverse to the best interest of the child”.  Often in these matters, the allegation involves a claim of abuse and neglect perpetrated by the custodial parent against the child.  Thus, the appointment of a Guardian Ad Litem, or GAL is mandated.

Mississippi Code § 93-5-23 provides that: The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121 , who shall be an attorney.

Mississippi courts have interpreted the “shall” language to insure an appointment in a case where a charge of neglect/abuse is raised. Sanford v. Arinder, 800 So.2d 1267 (Miss.App. 2001);  Foster v. Foster, 788 So.2d 779 (Miss.App. 2000).

The Guardian Ad Litem serves an important function by investigating the claims and defenses of the parties and then making a recommendation to the court.  The Guardian conducts interviews with the minor children, the parents, witnesses, and visits the respective homes of the parents.  Upon completion of their report, the GAL then makes a recommendation to the Judge as to whether custody modification is warranted.  However, the judge is not bound by the recommendation and is under no obligation to accept it.

Regardless of whether the court accepts the recommendation, a GAL report is an important finding that can be used in latter proceedings or an appeal.

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I have defended clients charged with the crime of shoplifting who had no real appreciation for the seriousness of the offense.  While the punishment may seem extreme to some, shoplifting laws can have long term consequences.  In Mississippi the punishment for shoplifting is as follows:

(a) Upon a first shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00), or punished by imprisonment not to exceed six (6) months, or by both such fine and imprisonment.

(b) Upon a second shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00) or punished by imprisonment not to exceed six (6) months, or by both such fine and imprisonment.

(6) Upon a third or subsequent shoplifting conviction the defendant shall be guilty of a felony and fined not more than Five Thousand Dollars ($5,000.00), or imprisoned for a term not exceeding five (5) years, or by both such fine and imprisonment.

MS Code Ann. SEC. 97-23-93

Whether the defendant will receive the maximum punishment available depends on the county or municipality where the offense occurred.