                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2013-CA-00415-SCT

FRANK SANDERS TIPTON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        02/06/2013
TRIAL JUDGE:                             HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED:               JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 THOMAS M. FORTNER
                                         ROSS PARKER SIMONS
ATTORNEYS FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                         BY: MALISSA WINFIELD
                                             JOHN R. HENRY, JR.
NATURE OF THE CASE:                      CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                             AFFIRMED - 03/20/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      COLEMAN, JUSTICE, FOR THE COURT:

¶1.   The instant matter is a case of first impression, asking the Court whether one

wrongfully convicted of a crime and placed in the Intensive Supervision Program, commonly

known as house arrest, is entitled to compensation under Mississippi Code Sections 11-44-1

to -7. Frank Sanders Tipton was convicted of extortion and served time in Mississippi

Department of Corrections (MDOC) facilities as well as in the Intensive Supervision

Program. After the Court vacated his judgment, Tipton filed a claim for compensation for

wrongful conviction and incarceration. The State agreed to pay Tipton for his time served
in prison but not for his time in the Intensive Supervision Program. After both sides filed for

summary judgment, the Jackson County Circuit Court granted summary judgment for the

State, which Tipton appealed. We affirm the circuit court’s grant of summary judgment.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Frank Sanders Tipton, a former employee of a private company that provided

probation monitoring services, offered to pay the monthly fine of a female probationer if she

would shower in front of him. On November 14, 2007, Tipton was convicted of extortion

under Mississippi Code Section 97-11-33 in the Circuit Court of Jackson County,

Mississippi. As a result, Tipton was sentenced to serve a term of five years, with one year

to be served in the custody of MDOC and two years to be served in the Intensive Supervision

Program (ISP), commonly referred to as “house arrest.” Upon completion of the ISP, the

remainder of his sentence would be suspended and followed by two years of post-release

supervision.

¶3.    Subsequently, Tipton spent three hundred days in MDOC facilities, with sixty days

awarded for his trusty status. Tipton then successfully completed his time with the ISP.

During the course of serving his sentence, Tipton prosecuted an appeal. On June 24, 2010,

the Court reversed and vacated Tipton’s conviction, holding that probation monitoring and

ISP-related services do not qualify as “incarceration services” but rather “alternatives to

incarceration;” thus Tipton did not violate the extortion statute, Mississippi Code Section 97-

11-33, as he was not an “employee of any contractor providing incarceration services.”

Tipton v. State, 41 So. 3d 679, 681-82 (¶ 9) (Miss. 2010); see Miss. Code Ann. § 97-11-33

(Rev. 2006).

                                              2
¶4.    Having already served the entirety of his sentence prior to the Court’s ruling, Tipton

filed a complaint seeking compensation for his wrongful incarceration under Mississippi

Code Section 11-44-1. See Miss. Code Ann. §§ 11-44-1 to -7 (Rev. 2012). The State agreed

that Tipton was entitled to compensation of $41,097 for the three hundred days he was

physically housed in state facilities. However, the State rejected Tipton’s argument that he

should be compensated for the time he spent in the ISP, which would amount to an additional

$100,000.

¶5.    After a hearing on both parties’ motions for summary judgment, the trial court agreed

with the State that Tipton was entitled to compensation for his time spent in MDOC custody

but not for time spent in the ISP. Thus, the trial court granted the State’s motion for

summary judgment, which Tipton appeals.

                                       DISCUSSION

¶6.    A circuit court’s grant or denial of a motion for summary judgment is reviewed under

a de novo standard. Poppenheimer v. Estate of Coyle, 98 So. 3d 1059, 1062 (¶ 7) (Miss.

2012) (citing Whitaker v. Limeco Corp., 32 So. 3d 429, 433-34 (¶ 10) (Miss. 2010)).

Additionally, “when questions of law are raised the applicable standard of review is de

novo.” Presley v. State, 48 So. 3d 526, 529 (¶ 10) (Miss. 2010) (quoting Brown v. State, 731

So. 2d 595, 598 (¶ 6) (Miss. 1999)).

       Whether the trial court erred in denying Tipton’s compensation claim
       under the Mississippi Wrongful Conviction and Imprisonment statutes,
       Mississippi Code Sections 11-44-1 to -7, for the two years he participated
       in the Intensive Supervision Program.




                                             3
¶7.    Tipton argues that he should be compensated for the full length of his sentence,

including the two years he spent under house arrest in the ISP. In short, he argues that time

served in the ISP should be considered “imprisonment” and “incarceration” as used in the

compensation statutes, Mississippi Code Sections 11-44-1 to -7. On the other hand, the State

would limit Tipton’s compensation to the three hundred days he spent in a “brick and mortar”

MDOC facility.      Tipton’s argument fails for two reasons: (1) the language of the

compensation statutes and (2) the language of the ISP statute.

       1. The Compensation Statutes – Mississippi Code Sections 11-44-1 to -7

¶8.    “It is not the function of the court to determine and announce what, in its judgment,

[a] statute should provide, but to ascertain, if there be ambiguity in its terms, what it does

provide.” Russell v. State, 231 Miss. 176, 189, 94 So. 2d 916, 921 (1957). “Whether the

statute is ambiguous, or not, the ultimate goal of this Court in interpreting a statute is to

discern and give effect to the legislative intent.” City of Natchez, Miss. v. Sullivan, 612 So.

2d 1087, 1089 (Miss. 1992) (citing Anderson v. Lambert, 494 So. 2d 370, 372 (Miss. 1986)).

“If the words of a statute are clear and unambiguous, the Court applies the plain meaning of

the statute and refrains from using principles of statutory construction.”         Lawson v.

Honeywell Int’l, Inc., 75 So. 3d 1024, 1027 (¶ 7) (Miss. 2011). Thus, the first step in

analyzing Tipton’s compensation claim is to look at the statutes in question and ask whether

they are ambiguous.

¶9.    Mississippi Code Sections 11-44-1 to -7 create a statutory scheme designed to

compensate “innocent persons who have been wrongly convicted of felony crimes and

subsequently imprisoned.” Miss. Code Ann. § 11-44-1 (Rev. 2012) (emphasis added). The

                                              4
Legislature’s stated intent for the statute is that “innocent people who are wrongfully

convicted . . . receive monetary compensation” . . . “[i]n light of the particular and substantial

horror of being imprisoned for a crime one did not commit.” Id. (emphasis added).

¶10.   The elements required to prove a claim for compensation are listed in Mississippi

Code Section 11-44-3, which requires that the claimant be convicted of a felony and

“subsequently sentenced to a term of imprisonment” and released “[o]n grounds not

inconsistent with innocence,” which includes a vacated judgment, as here. Miss. Code Ann.

§ 11-44-3 (Rev. 2012) (emphasis added). The remaining elements, including that the

accusatory instrument was dismissed, that the claim is not time-barred, that the claimant did

not intentionally waive any appellate or post-conviction remedy otherwise available, and that

the claim shall be verified by the claimant, all were agreed to by both parties in their Agreed

Statement of Uncontested Facts. Miss. Code Ann. § 11-44-3.

¶11.   Mississippi Code Section 11-44-7 details how compensation is to be awarded. Miss.

Code. Ann. § 11-44-7 (Rev. 2012). The statute states that, in order to obtain a judgment, a

claimant must prove by a preponderance of the evidence that he was “convicted of one or

more felonies and subsequently sentenced to a term of imprisonment.” Id. (emphasis added).

It then states that if “the court finds that the claimant was wrongfully convicted and

incarcerated,” the court shall award $50,000 “for each year of incarceration.” Id. (emphasis

added).

¶12.   The plain language of the compensation statutes, which use the words “imprisonment”

and “incarceration,” should be interpreted as allowing compensation only for each year spent

in an actual prison. Merriam-Webster defines “imprison” as “to put in . . . prison.”

                                                5
Merriam-Webster Collegiate Dictionary 584 (10th ed. 1993); see also Black’s Law

Dictionary 757 (6th ed. 1990) (defining “imprison” as “To put in a prison”). Similarly,

“incarcerate” is defined as “to put in prison” and comes from the Latin “incarceratus,” the

past participle of “incarcerare,” from “in” plus “carcer,” which is Latin for “prison.”

Merriam-Webster Collegiate Dictionary 587 (10th ed. 1993). The plain meaning of these

words is that one who is imprisoned or incarcerated is restrained in an actual prison.

       2. The ISP Statute – Mississippi Code Section 47-5-1003

¶13.   The ISP program, better known as “house arrest,” was created by Mississippi Code

Section 47-5-1003. The statute expressly states that the “intensive supervision program may

be used as an alternative to incarceration for offenders who are low risk and nonviolent . .

. .” Miss. Code Ann. § 47-5-1003 (Rev. 2011) (emphasis added). Such language would

appear to preclude Tipton’s argument that his time in the ISP qualified as “incarceration” or

“imprisonment.”

¶14.   In fact, the Court construed the ISP as an alternative to incarceration, rather than

incarceration in the very case in which Tipton’s extortion conviction was vacated. Tipton

v. State, 41 So. 3d 679 (Miss. 2010). Justice Dickinson, writing for the Court, wrote that

“[s]ince the terms ‘incarceration’ and ‘alternative to incarceration’ are mutually exclusive,

we reverse and vacate the conviction.” Id. at 680 (¶ 1). Tipton was an employee of a private

company that provided probation monitoring and ISP-related services when he was convicted

of violating Mississippi Code Section 97-11-33 for offering to pay a probationer’s monthly

fine if she would shower in front of him. Id. at 680 (¶¶ 2-3). Tipton’s conviction was

vacated because he was not an “employee of any contractor providing incarceration services”

                                             6
as defined in Mississippi Code Section 97-11-33. Id. at 680 (¶¶ 2-3). The Court found that

Tipton worked for a company that provided an alternative to incarceration services, so he

could not have violated the statute in question. Id. at 682 (¶ 13).

¶15.   While Tipton v. State is strong authority for the ISP not to be considered

incarceration, there is precedent inconsistent with such a finding. See Lewis v. State, 761 So.

2d 922 (Miss. Ct. App. 2010); Brown v. Miss. Dep’t of Corr., 906 So. 2d 833 (Miss. Ct.

App. 2004), overruled on other grounds by Johnson v. State, 77 So. 3d 1152, 1155 (¶ 10)

(Miss. Ct. App. 2012); Ivory v. State, 403 So. 2d 1284 (Miss. 1981). In Lewis, Lewis argued

that house arrest was a form of probationary release from which he could not be removed

without a preliminary hearing identical to a parole or probation revocation proceeding.

Lewis, 761 So. 2d at 923 (¶ 2). The State argued that an inmate in the ISP remains a

prisoner; “[t]herefore, . . . removing a prisoner from the [ISP] and returning him to the

general prison population is nothing more than an internal reclassification matter for which

the inmate enjoys no liberty interest that would trigger the need for the kind of due process

hearing necessary to revoke probation or parole.” Id. at 923 (¶ 3). The Court of Appeals

ultimately agreed with the State. Id. at 923 (¶ 5). However, Lewis is distinguished from the

instant case in that Lewis dealt with due process rights, while the instant case revolves around

the compensation statutes and their application. Further, the Lewis court held that being

placed in the ISP is not the equivalent of being placed on parole, rather than equating the ISP

with incarceration, as Tipton argues.

¶16.   Additionally, in Brown v. Mississippi Department of Corrections, the Court of

Appeals stated, “[w]hether participating in the ISP or confined in a correctional facility,

                                               7
Brown was confined as a prisoner under the jurisdiction of the MDOC. Therefore, Brown

is entitled to receive credit for the time spent in the intensive supervision program.” Brown,

906 So. 2d at 836 (¶ 11) (citations omitted). Brown is distinguished from the instant case

because Brown dealt with the treatment of time served in the ISP for the purpose of MDOC

sentencing calculations instead of the purpose of wrongful-conviction compensation as

controlled by Sections 11-44-1 to -7.

¶17.   Finally, in Ivory v. State, the Court considered a claim by a prisoner removed from

the Supervised Earned Release (“SER”) program 1 in which he argued he was entitled to

credit for the time spent in that program outside an actual prison. Ivory, 403 So. 2d at 1285.

The Court contrasted the SER statute with the parole statutes, writing:

       In the absence of the clear statement of legislative intent, apparent in
       [Mississippi Code Section] 47-7-27 that a parole violator is not entitled to have
       his sentence diminished for the time he was on parole, we would be compelled
       to hold such time should be taken into account as credit on the appellant’s
       sentence. There being no similar penalty in the SER program, we cannot hold
       that Ivory, as a matter of law, must be denied credit on his sentence because
       he was terminated or apprehended for violation of his SER agreement.

Id. at 1286. Like Brown, Ivory is distinguished from the instant case because it deals with

credit as to the offender’s sentence rather than credit given under the compensation statutes.

Additionally, Ivory was not in the context of the ISP but its predecessor program, so its value

as precedent in the instant case is limited.




       1
       The SER program was established by Mississippi Code Section 47-5-171, repealed
in 1982. Like the ISP, the SER program allowed for certain offenders to be placed on a form
of house arrest in lieu of serving time in a prison.

                                               8
¶18.   Tipton should not be compensated under the compensation statute for time spent in

the ISP. In Tipton v. State, the Court expressly held that “the terms ‘incarceration’ and

‘alternative to incarceration’ are mutually exclusive.” Tipton, 41 So. 3d at 680 (¶ 1). Thus,

the ISP program, which the statute declares to be “an alternative to incarceration,” cannot be

construed as being the equivalent of incarceration. Miss. Code Ann. § 47-5-1003 (Rev.

2011). Accordingly, the compensation statutes are not applicable to the time Tipton spent

in the ISP, as the compensation statutes compensate for “each year of incarceration.” Miss.

Code Ann. § 11-44-7 (Rev. 2012).

                                       CONCLUSION

¶19.   The circuit court was correct in granting the State’s motion for summary judgment

denying Tipton compensation for his time in the ISP. The compensation statutes allow for

compensation for each year of “imprisonment” or “incarceration,” which plainly means time

spent in an actual prison. See Miss. Code Ann. § 11-44-1 to -7 (Rev. 2012). Taken in concert

with the ISP statute, which defines the program as an “alternative to incarceration,” it is clear

that Tipton is not entitled to compensation for time served in the ISP. See Miss. Code Ann.

§ 47-5-1003 (Rev. 2011). Accordingly, the Court affirms the judgment of the Jackson

County Circuit Court.

¶20.   AFFIRMED.

    DICKINSON AND RANDOLPH, P.JJ., LAMAR AND PIERCE, JJ., CONCUR.
KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER, C.J., AND CHANDLER, J. KING, J., NOT PARTICIPATING.

       KITCHENS, JUSTICE, DISSENTING:




                                               9
¶21.   Frank Tipton was convicted of a crime he did not commit. He spent 300 days in

prison. For the next two years, he was under house arrest in Mississippi’s Intensive

Supervision Program (ISP). For two years, he could not change his place of residence

without correctional officer approval; his home was subject to inspection and search without

warning or warrant; he was required to submit to random drug and alcohol tests at the request

of his correctional officer; and he was required to remain at his home except to go to work

or perform community service unless he was given explicit permission to do otherwise. The

State contends, and the majority agrees, that he is due no compensation for the two years in

which his rights to due process, liberty, and protection against unreasonable search and

seizure were wrongfully denied him. The majority finds that while Tipton was not in a “brick

and mortar” prison facility, he cannot be said to have been “imprisoned.” I respectfully

dissent.

¶22.   The majority reaches its result, at least partially, by finding that the plain language of

the terms “imprisonment” and “incarceration,” as used in the compensation statutes,2 refer

only to detention inside an actual prison, and do not include house arrest. The definitions

quoted by the majority are somewhat incomplete. The full definitions reveal that the

meanings of “imprisonment” and “incarceration” are not as simplistic as one’s being

confined inside a “brick and mortar” prison. Webster’s dictionary defines “imprison” as “to

confine in or as if in prison.” Webster Random House Dictionary 963 (2001) (emphasis

added). Merriam-Webster defines “incarcerate” as “to imprison; confine.” Webster Random

House Dictionary 965 (2001). Can it be credibly argued that Tipton was not subjected to

       2
           Miss. Code Ann. §§ 11-44-1 to -7 (Rev. 2012).

                                              10
confinement while under house arrest in the ISP? Black’s Law Dictionary defines

“imprisonment” as “[t]he act of confining a person, esp. in a prison,” or “[t]he state of being

confined; a period of confinement.” Black’s Law Dictionary 825 (9th ed. 2009). House arrest

unarguably is a restraint upon the liberty of an individual. It entails confinement and

restriction to which a “free world” American is not subjected. Tipton’s liberty was restrained

in multiple ways, including his being required to remain either at home or at work. I conclude

that Tipton was imprisoned for the purposes of wrongful conviction compensation when he

was placed under house arrest.3

¶23.   The majority also looks to case law to determine whether Tipton was incarcerated for

the purpose of the compensation statutes. In reaching its conclusion, the majority relies, at

least in part, on the very case which exonerated Tipton, Tipton v. State, 41 So. 3d 679 (Miss.

2010). There, this Court found that Tipton, as an employee of a private company that

provided probation monitoring and house-arrest services, could not be criminally convicted

of extortion under Mississippi Code Section 97-11-33 because he was not an “employee of

any contractor providing incarceration services,” but instead was employed by a company

that provided alternatives to incarceration. Id. at 682 (¶ 13). The majority reasons that the

finding in Tipton that house arrest is an alternative to incarceration supports its holding that

a person who is under house arrest is not incarcerated.




       3
        The word “arrest” clearly entails confinement. Arrest is “actual or constructive
seizure or detention of the person arrested, or his voluntary submission to custody, and the
restraint must be under real or pretended legal authority.” Bearden v. State, 662 So. 2d 620,
623 (Miss. 1995) (quoting 5 Am. Jur. 2d Arrest § 1 (1962)).

                                              11
¶24.   The problem with the majority’s reliance on Tipton is that the criminal appeal

presented an entirely different question to this Court than the one now before us. In the

extortion case, this Court determined that an employee of a company that described itself as

a provider of alternatives to incarceration could not be criminally prosecuted for extortion

under a statute which prohibited certain conduct only if done by employees of companies

which provided incarceration services. Tipton, 41 So. 3d at 682 (¶ 13). At no point in that

opinion did this Court analyze the status of a person enrolled in a house-arrest program and

whether that status was sufficiently equivalent to “imprisonment” to render such a person

eligible for compensation if he or she were found to have been wrongfully convicted.

¶25.   Obviously, the 2010 Tipton v. State was a criminal case. The language of the relevant

extortion statute was reviewed under the “bedrock law in Mississippi that criminal statutes

are to be strictly construed against the State and liberally in favor of the accused.” Id. at 682

(¶ 11) (quoting Coleman v. State, 947 So. 2d 878, 881 (Miss. 2006)). Unlike the majority,

I do not find that Tipton v. State presents strong authority for house arrest to be considered

uncompensable under our civil wrongful-conviction-compensation statutes. Instead, I

conclude that, for the specific question now presented to this Court, the precedent of the line

of cases which actually address the custodial status of persons in the ISP should lead this

Court to find that Tipton should be compensated for his time wrongfully served under house

arrest. See Ivory v. State, 999 So. 2d 420, 426 (¶ 15) (Miss. Ct. App. 2008); Brown v. Miss.

Dep’t of Corr., 906 So. 2d 833 (Miss. Ct. App. 2004), overruled on other grounds by

Johnson v. State, 77 So. 3d 1152, 1155 (¶ 10) (Miss. Ct. App. 2012); Lewis v. State, 761 So.

2d 922 (Miss. Ct. App. 2000).

                                               12
¶26.   An inmate in the ISP is “confined as a prisoner under the jurisdiction of the

Mississippi Department of Corrections in the normally-understood sense of that term. . . .”

Lewis, 761 So. 2d at 923 (¶ 5) (emphasis added). “In other words, an offender in the ISP is

an inmate in the custody of the MDOC who is serving time on house arrest instead of being

housed in a MDOC facility.” Ivory, 999 So. 2d at 426 (¶ 15). Lewis and Ivory are, in my

view, solidly on point with the question presented to us and, unless overruled by a majority

of this Court, should control today’s decision. As far as the State is concerned, inmates in the

ISP are prisoners under the “complete jurisdiction of the [MDOC],” 4 and their status for the

purposes of administrative remedies and punishment is the same as that of any other prisoner

in a “brick and mortar” facility. This is a line of reasoning the State has pursued consistently

when fighting challenges to reclassification from ISP to an MDOC facility brought by

aggrieved inmates, and the State has argued that position successfully. In Lewis, the State

argued that “removing a prisoner from the house arrest program and returning him to the

general prison population is nothing more than an internal reclassification matter for which

the inmate enjoys no liberty interest that would trigger the need for the kind of due process

hearing necessary to revoke probation or parole.” Lewis, 761 So. 2d at 923 (¶ 3) (emphasis

added). The Court of Appeals agreed. Id. (¶ 4); see also Brown v. Miss. Dep’t of Corr., 906

So. 2d 833, 835 (¶ 6) (Miss. Ct. App. 2004), overruled on other grounds by Johnson v. State,

77 So. 3d 1152, 1155 (¶ 10) (Miss. Ct. App. 2012). Because no liberty interest is involved

when an inmate is removed from house arrest and placed in an MDOC facility, and an inmate




       4
           Miss. Code Ann. § 47-5-1003(3) (Rev. 2011).

                                              13
in the ISP is a prisoner “in the normally understood sense of that term,” 5 I find that Tipton,

being a prisoner, was “imprisoned” in the ISP in the same way that he would have been at

an MDOC facility, and that he should be compensated for that imprisonment because he was

put there wrongfully.

¶27.   The State consistently has argued that prisoners in the ISP receive inmate

classifications the same as all other prisoners in the MDOC. If Tipton’s ISP status had been

revoked, and if he had challenged his lack of a hearing, the State would have contended, as

it did in Lewis and Brown, that he was an inmate under the jurisdiction of the MDOC and

his removal was merely an administrative reclassification that involved no liberty interest.

If the State sees no significant reduction in liberty when an inmate is moved from house

arrest to prison, how can it credibly argue that the limited freedoms an individual is granted

under house arrest are so superior to being in a prison as to be uncompensable if he or she

was wrongly convicted and wrongly punished? Incarceration is a matter of degrees, or levels,

i.e., maximum versus minimum security, or trusty status granting special privileges to some

prisoners given assignments inside and outside of prison walls. The MDOC treats house

arrest as just another tier in its system of custodial hierarchy.

¶28.   Frank Tipton may not be seen as a sympathetic plaintiff. Many will lament his having

“gotten off” on a technicality. However, the day will come when a factually innocent person

will serve time in the ISP and suffer the ignominy and harsh restrictions on liberty that such

a sentence entails. Such a person’s ability to be compensated should not be foreclosed or




       5
           Lewis, 761 So. 2d at 923 (¶ 5).

                                              14
compromised because of widespread revulsion at the disgusting conduct attributed to Tipton

during his extortion trial. The State consistently has argued that prisoners in the ISP are, for

all intents and purposes, prisoners with the same liberty interests as those in actual prisons.

House arrest required Tipton to submit completely to the MDOC, giving the State access to

his home and his body, and to forego several significant constitutional rights enjoyed by free

Americans. Because I would find that wrongful incarceration under the ISP is compensable

under our compensation statutes, I respectfully dissent.

       WALLER, C.J., AND CHANDLER, J., JOIN THIS OPINION.




                                              15
