182 So. 2d 397 | Miss. | 1966
Petitioner, Ollie Riley, was convicted in the Circuit Court of Leake County on an indictment under Mississippi Laws of 1958 Chapter 281, Mississippi Code Annotated section 2412.5 (1956), and was sentenced to serve a term of two years in the Mississippi State Penitentiary. He appealed to this Court, and the case was affirmed on November 22, 1965, 180 So.2d 321.
He now has filed in this Court a motion which we consider as an application which states that it is filed pursuant to Mississippi Code Annotated section 1992.5 (1956), and he seeks leave to file a petition for the writ of error coram nobis in the trial court. The motion is both a motion and a brief of five pages in length. It does not comply with the requirements of the statute or the rules of proper pleading. The petition that is proposed to be filed in the trial court does not accompany the motion. Paragraph 2 of section 1992.5 provides :
In all cases wherein a judgment of conviction in a criminal prosecution has been affirmed on appeal by the supreme court, no petition for the writ of error coram nobis shall he allowed to be filed or entertained in the trial court unless and until the petition for the writ shall have first been presented to a quorum of the justices of the supreme court, convened for said purpose either in term time or in vacation, and an order granted allowing the filing of such petition in the trial court.
It is apparent that this paragraph provides that the petition proposed to be filed in the trial court be presented to this Court in order for this Court to determine from the
In order for us to expeditiously and intelligently pass upon applications for the writ of error coram nobis when presented to this Court, we have deemed it necessary and appropriate to adopt Rule 38 of this Court setting out the procedure for application for leave to file petition of writ of error coram nobis in the trial court. The rule adopted by this Court is as follows:
PROCEDURE FOR APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF ERROR CORAM NOBIS UNDER MISSISSIPPI CODE ANNOTATED SECTION 1992.5
Every application for leave to file in the lower court a petition for writ of error coram nobis shall have attached the original and two executed counterparts of the petition proposed to be filed in the lower court, which shall be sworn to by petitioner. Petitioner’s affidavit shall designate specifically what facts, if any, alleged in the petition are within the personal knowledge of petitioner. When the petition contains allegations of fact not within the personal knowledge of petitioner, it shall have attached affidavit or affidavits of some other person or persons having knowledge of the facts which are not within the personal knowledge of petitioner. The failure to attach such affidavits of persons other than petitioner may be excused upon good cause shown. The petition shall state when the facts relied upon for issuance of the writ came to petitioner’s knowledge, and shall state sufficient facts to show that there was no want of reasonable diligence on the part of petitioner or his counsel. The petition shall be endorsed by a statement by petitioner’s counsel, if any, that he believes the petition for a writ of error coram nobis' is well taken, and’ should be issued. The application shall be supported by a brief, and failure to file a supporting brief may be ground for dismissal. In the event leave is granted to file the petition, the original and one executed counterpart of the petition shall be withdrawn and filed in the lower court.
For the reasons stated, the application for leave to file petition for writ of error coram nobis in the circuit court must be dismissed, but without prejudice to petitioner’s right to file a corrected application in accordance with the statute and our rule herein set out.
Motion overruled and application dismissed without prejudice.