Vess, 031894 MSAGO, AGO 94-124

• Case Date: March 18, 1994
• Court: Mississippi

Honorable Charles L. Vess AGO 94-124 No. 94-0124 Mississippi Attorney General Opinions March 18, 1994          Honorable Charles L. Vess          Justice Court Judge, Adams County          P.O. Box 1048          Natchez, Mississippi 39121-1048          Re: Preliminary Hearing in Justice Court.           Dear Judge Vess:          Attorney General Mike Moore has received your letter of request and has assigned it to the undersigned for research and reply. In your letter you ask the following questions:

Question (1) If a preliminary hearing is requested by a citizen after his arraignment, can that right be taken away from him unless it is waived by his attorney? Response: This office would invite your attention to Rule 1.04 of the Uniform Criminal Rules of Circuit Court Practice, which is applicable to justice court judges serving as conservators of the peace, and reads in part as follows: “The preliminary hearing shall be heard on the set date, unless it is waived in writing or in open court and upon advice of counsel. If preliminary hearing is waived by the defendant, the judicial officer shall bind the defendant over to the next grand jury.” It is the opinion of this office, that a defendant looses his right to a preliminary hearing only under the conditions stated in the above rule or upon indictment as set forth in Mayfield v State, 612 So.2d 1120 (1992) . Question (2) After a probable cause hearing is conducted and a judge determines the matter should be reviewed by the grand jury can the judge release a person on a personal recognizance and leave him under our bond returnable to justice court until either he is indicted or dismissed? Response: It is the opinion of this office, that a justice court judge acting as a conservator of the peace has the authority to set a bond or release on recognizance pending action of the grand jury or circuit court. However, the bond or recognizance must be returned to the circuit court before its next term. See Rule 1.04 Uniform Criminal Rules of Circuit Court Practice and Section 99-15-3, of the Mississippi Code of 1972 . Question (3) If a judge sends a mittimus to the sheriff and sets bail after determining probable cause that a defendant committed a crime, can that defendant be released by the sheriff before posting bond? Response: It is the opinion of this office that once a justice court judge, issues the sheriff a mittimus setting forth the amount of bail, and the number of sureties required, the sheriff can

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