IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-CA-01759-SCT JASON HALL a/k/a JASON LADELL HALL a/k/a JASON L. HALL

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 07/09/2014 TRIAL JUDGE: HON. L. BRELAND HILBURN TRIAL COURT ATTORNEYS: SAMUEL S. McHARD MARCUS McLELLAND LEE D. THAMES, JR. MALISSA W ILSON COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: CORY NATHAN FERRAEZ SAMUEL STEVEN McHARD MARCUS ALAN McLELLAND ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LEE DAVIS THAMES, JR. NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: REVERSED AND REMANDED - 03/17/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., KING AND BEAM, JJ. BEAM, JUSTICE, FOR THE COURT: ¶1. Jason Hall appeals f rom the Forrest County Circuit Court’s dism issal of h is petition
f or s t atutory com

p ensation under Mississippi’s C om pensation Act f

or W rongf

ul Conviction and I m prisonm ent. W e f

ind error in the trial court’s ruling that Hall had f ailed to establish his innocence as r equired by Mississippi Code Section 11-44-7(1)( b ) b e c a u s e the Order Passing to Inactive Files was n either a dism issal nor a nolle prosequi (“nol p ross”) pursuantto Section 11-44-3(1)(c). Accordingly , we r everse the trial c o urt’s judgm ent and rem and the

m atter f o r f urther proceedings consistent with this opinion.

BACKGROUND ¶2. On April 8, 2011, Hall and two others were indicted f or b urglary of a building. Hall

was tried separately bef

ore a jury on July 10, 2012. A t the conclusion of the trial, the State requested, over Hall’s objection, a jury instruction f or accessory af

ter the f act to burglary (in addition to the burglary instruction). T he jury acquitted Hall of burglary but convicted h im of accessory af

ter the f a ct. The trial court sentenced Hall as a habitual of f ender to f ive y ears’ im p risonm ent in the custody of Mississippi D epartm ent of Corrections (MDOC) to be served day f o r day

. ¶3. Hall appealed his crim inal conviction to th i s C o urt. W e reversed Hall’s conviction and vacated his sentenc e , f i n d i ng that Hall w a s convicted of a c rim e f or which he was not indicted, and that Hall did not w aive indictm ent. Hall v. State , 127 So. 3d 202 (Miss. 2013). ¶4. On January 30, 2 014, Hall f iled a com

p laint against the State, seeking com p ensation under the W rongf

u l C onviction Act, Mississippi Code S ection 11-44- 1 t o -15. The Mississippi Attorney G eneral was served with the com plaint on February 11, 2014. And the Attorney General’s Of

f i c e f i led a m otion to dism iss pursuant to Rule 12(b)(6) of the Mississippi Rules of Civi l P r o c e d u re, on the ground that Hall had f ailed t o m eet the prerequisites of Section 1 1-44-3, specif ically Section 1 1-44-3(1)(c). See Miss. Code Ann. § 11-44-3(1)(a) (Rev. 2012).

2¶5. S u b s e q u e nt t o the State’s Rule 12(b)(6) m o tion f iling, the Forrest County D i s t r i c t A t t o rney entered a Pass Order on March 10, 2014, in the underly ing crim inal m att e r . T h e circuit court heard the State’s m otion on J une 30, 2014. At the hearing, the S tate asked that the P ass Order be considered regarding the State’s m otion to dism i ss. The State argued that the P a s s O r der showed that the charges against Hall had neither been dism i ssed nor nol prossed as required by

Section 11-44-3(1)(c). ¶6. O n J u l y 1 1 , 2 0 1 4 , the circuit court entered an order dism issing the m atter w i t h prejudice. The circuit court essentially f ound that Hall had f

ailed t o establish his innocence

as required by Section 11-44-7(1)(b), because the Order Passing to Inactive Files w as neither a dism issal nor a nol pross pursuant to Section 11-44-3(1)(c). ¶7. Hall f

iled a m otion to reconsider. Thereaf ter, the circuit c o urt entered an agreed order setting aside the Order Passing to Inactive Files a nd stating that, pur s u a nt to this Court’s decision in Hall v. State , “there r em ains n o charging d ocum ent/ i n d i c t me n t to pass to the
f ile.” The agreed order f

urther stated that the State agreed that no f urther action would be taken to prosecute Hall i n connection with burglary or f or accessory af

ter the f act to burglary ,

or any charges based on the acts and occurrences described in this Court’s decision in Hall
v. State

. ¶8. Hall then f

iled an am ended com

plaint, attaching as exhi b i t s d o c u m entary evidence including: (1) the i ndictm ent; (2) the j ury verdict and s entenc i n g o r d e r ; (3) The MDOC inm ate t i me s h e e t , this court’s m andate and MDOC discharge certif icate; (4) This Court’s opinion in Hall v. S

tate ; (5) The a g r e e d o r der o f the F orrest County Circuit Court that no

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urther action would b e take n against Hall in connection with the acts or occurrences described in Hall v. State

. A ccording to Hall, the S tate n ever f iled a n answer either to Hall’s initial com

plaint or to his am ended com plaint. ¶9. The c ircuit c ourt a c c e p t e d H a l l ’ s am ended com plaint but denied Hall’s m otion to reconsider, based on the sam e grounds as in its previous order. The court also dism issed both Hall’s com

plaint and his am ended com plaint with prejudice. ¶10. H a l l a p p e a l s f

r o m t h i s f

inal judgm e nt, raising a num ber of issues, all of w h i c h interrelate and correspond to one another t o a n extent that they m ay be discussed together. Accordingly , we do so under Hall’s f irst issue.
Whether t he trial c ourt erred by holding Hall’s com plaint and am ended com plaint to the h eightened requirem ents of Mississippi Code Section 1 1- 44-7 before analy z ing w h e t h er Hall m et the requirem ent o f Mississippi Code Section 11-44-3. ¶11. Hall argues that the trial court erred in this instance b y holding Hall’s c om plaint to the standard set f

orth in Section 11-44-7 f or p urpos e s o f t h e State’s Rule 12(b)(6) m otion to dism iss. He contends that the order structure a nd the sequence and language o f the statutes
at issue leave no question t h a t S ection 11-44-3 was intended f or the initial pleading f

or presentm e nt of t h e c l a i m, whereas Section 11-44-7 was intended to establish the requisite proof at trial needed to obtain a f inal judgm ent. For support, H all cites Jefferson v. State , 95 So. 3d 709, 711 ( Miss. Ct. App. 2012), in which the court s et out the order of procedure
f or claim s under the Com

pensation Act as f

o llows: Mississippi Code Annotated section 11-44-3 (Supp. 2 011) s e ts f orth what a claim ant m

ust establish in order to survive dism issal by the circuit court. If a claim ant establishes a claim under section 11-44-3, he m u s t t h e n m e e t the

4burden of proof under Mississippi Code Annotated section 11-44-7(1) (Supp.

2011). If a claim ant m eets this burden, he o r she i s entitled to “Fif ty Thousand Dollars ($50,000.00) f

or each y ear of

incarceration regardless of the num ber of f elonies fo r w h ich a claim ant was convicted” a nd reasonable attorney ’s f ees. Miss. Code Ann. § 11-44-7(2) (Supp. 2011). ¶12. The State argues that Hall f ails to m eet al l t h e p r e r e q u i s i t e s f o r a c l a i m

f or

com pensation pursuant to Section 11-44-3(1). Nam ely , Hall m e ets prerequisite Section 11- 44-3(1)(a) in that he was convicted of a f e lony and s erved tim e, and Hall m eets prerequisite Section 11-44-3(1)(b)(ii), as he attached this Court’s m andate i n Hall v. S tate , reversing his conviction a nd vacating his s entence. However, Ha l l f a iled to establish by docum entary evidence that the charge has been “dism issed or nol prossed, or if a n ew tr i a l w a s held the def endant was f

ound not guilty ,” pursuant to Section 1 1-44-3(1)(c). A ccordingly , the State

m aintains that the trial court properly dism issed the claim

. F or support, the S tate also relies

on Jefferson , 95 So. 3d 709. ¶13. In Jeff

e r s o n , D e n n i s J e f

f e r s o n p etitioned the State f or com pensation under the
W r ongf ul Conviction A ct, af

ter the Court o f A ppeals had r eversed Jef f erson’s burglary conviction o n appeal in Jefferson v. State , 977 So. 2d 431, 437-38 (Miss. C t. App

. 2 0 0 8).
In the crim inal appeal, the Court of Appeals f ound there was insuf

f icient evidence to support Jef f erson’s burglary c onviction. Id

. at 437. But, as f ound by the Court of Appeals, there was suf f i cient evidence to support the of f ense o f w illf

ul trespass. Jefferson , 977 So. 2d at 438. Accordingly , Jef

f erson was resentenced under Mississippi’s direct-rem and r ule to the lesserincluded o f

f ense of willf

ul t r e s p a s s . Id

. In Jef

f erson’s civil appeal, the Court of Appeals af f irme d t h e circuit court’s dism issal of Jef f erson’s petition on the basis that it f ailed to

5com

ply with the prerequisites p rescribed by S ection 11-44-3. Jefferson , 95 So. 3d at 710-14. In construing the W rongf ul Conviction Act, the Court of Appeals explained that: Section 11-44-3 ( 1 ) ( c) clearly and unam b iguously r equires, “[ i]f there w as a vacatur or reversal,” the claim ant m u st also establish by docum entary evidence that “ either the accusatory instrum ent was dism issed or nol prossed[ ,] o r if a new t r i al w as held, the def endant was f

ound not guilty [ .]” As written, this is an express additional requirem ent that Jef f erson has f

ailed to m eet. Id . at 714. ¶14. In speaking to Jef

f erson’s argum e nt that he m e t Section 11-44-3(1)(c)’s requirem ents because ( according to Jef f erson) the ef

f ect of the court’s exercise of the direct-rem and rule was that his indictm ent was nol prossed, the Court of Appeals said as f

ollows: Indeed, our g oal in apply ing section 11–44–3(1) is “to give ef f ect to the intent of the Legislature.” Lawson v. Honeywell I nt’l, Inc. , 7 5 So. 3d 1024, 1027 (¶ 7) (Miss. 2011) (citing City of Natchez, Miss. v. Sullivan , 6 1 2 So. 2d 1087, 1089 (Miss. 1992)). But we do this by looking to the language of the statute and apply ing its plain m ean i n g when the w ords are clear a nd u nam b iguous. Id. It i s not our f

unction “to decide what a st atute should provide, but to determ ine what it does provide.” Id . (citing Russell v. State , 231 Miss. 176, 181, 94 So. 2d 9 16, 917 (1957)) (em phasis adde d )

. A nd while section 11–44–3(1)(c) d oes p rovide a viable claim f or c o mp ensation when an accusatory instrum e n t w a s nol prossed f o llowing reversal or a not-guilty verdict was obtaine d , it d o es not provide f or a viable claim when a reversal was part of

a direct rem and f

o r sentencing on a lesser-included crim e. Id

. ¶15. This case is distinguishable f rom Jefferson

. Here, Hall was acquitted of the charged crim e of burglary , but he was convicted of the f elony of f ense of accessory af

ter the f act. As

m entioned, this Court reversed Hall’s conviction and va c a t ed Hall’s sentence because the
State was not perm itted to seek a conviction f o r an uncharged o f

f ense w hose elem ents are

6not included of the o f f ense charged in the indictm ent. Hall , 127 So. 3d a t 207. 1 F ollowing this Court’ s ruling in H all’s crim inal appeal, and af ter Hall petitioned f

or wrongf

ulconviction com

pensation, the district attorney passed the case to the f

iles. ¶16. The State is correct that passing a case to the f iles is dif f erent f r om a nolle prosequi action. As noted in Walton v. C i t y o f Tupelo , 229 Miss. 193, 1 96, 90 S o. 2 d 193, 194 (1956), “[ t]he usual practice is that when a case is m e rely p assed t o the f iles at the instance of the p rosecution, i t m ay be later revived on m otion and tried on its m erits in the sam e court, but where a nolle prosequi is entered the particular case is at an end on the docket

. . . . ” In Gordon v. State , 127 Miss. 396, 90 So. 95 (1921), this Court explained: The district attorney m ay be willing to pass an i ndictm ent t o the f iles pending good behavior, or f

or other cause, when he would be unwilling to recom m end a nolle prosequi, a nd it of ten happens that a def

endant i s willing t o accept this arrangem ent as the b est settlem ent available. It m ay b e that the passage of an indictm ent to the f

iles is usually the end o f the m atter, but it is in no sense an acquittal of the charge. It sim ply postpones the evil day if the d istrict attorney shall, in the f

u ture, elect to withdraw it and proceed to trial. ¶17. Here, though, what the d istrict a ttorney passed to the f iles was t h e i n d i c t me n t f o r

cause num

ber 11

- 1 7 8CR, which is what com prised Hall’s burglary -of -a-building charge. Based on double-jeopardy grounds, because Hall was a cquitted of the burglary charge by a

1 W hen Hall’s crim inal appeal was decided, Griffin v. State , 533 So. 2d 244 (Miss. 1988), controlled, which had instituted the s o-called lesser-nonincluded-of f ense doctrine. Under Griffin , crim inal def endants could seek convictions f or lesser of

f e n ses if the evidence supported it, despite whether the elem ents of the particular lesser of

f ense were included in the greater o f

f ense charged in the indictm ent. B u t only crim i nal def endants could request a lesser-nonincluded-of

f ense instruction, not the State. This was because c onstitu t i o n a l notice consider a t i o n s f

orbid the prosecution f

rom receiving an instruction on a n of f ense whose e lem ents w ere not i ncluded in the indictm ent. This C o urt overrule d Griffin and its progeny i n Hye v

. State , 1 62 So. 3 d 750 ( M iss. 2015), thereby disallowing crim inal def endants the right to request lesser-nonincluded-of f ense instructions. 7jury , Hall is e n t i t l e d t o a dism i ssal of the indictm ent with prejudice, as that was the only

charge contained in the indictm ent. Contrary to the State’s contention and the circuit court’s ruling, this particular case m eets the statutory prerequisites of

Section 11-44-3(1)(c). ¶18. This was not the c a s e i n J e f f e r s o n . T h e r e , the petitioner’s indictm e nt was not dism issed or n ol p rossed, because, as the Court of Appeals f ound, suf f icient evidence was presented at Jef

f erson’s crim inal t r ial to prove the o f f ense o f w illf

ul trespass, and Mississippi’s direct-rem and r ule was p ut into ef

f e ct. Under the direct-rem a nd rule, an appellate court m a y rem and a case to the trial court f or s e ntencing on a lesser-included of f ense where the greater of f e nse was not proved, but the e l e me n t s o f the lesser-included

o f f ense were suf

f iciently m et. See Shields v. State , 7 22 So. 2d 584, 5 87 ( Miss. 1 9 9 8 ) (explaining the logic behind the rule was that “guilt of true lesser-included of f ense is im p licitly f ound in the jur y ’ s v e r d i c t o f guilt on the greater of f ense”). Thus, the Court of Appeals f ound that J ef

f erson could not m eet the statutory prerequisites of Section 11-44- 3(1)(c). ¶19. In this instance, however, the of f ense f o r which H a ll was convicted a nd sentenced,
accessory af

ter the f act, is not a lesser-included of f ense o f burglary of b uilding, a s charged in the indictm ent f

or cause num

ber 11-178CR. S

ee Byrom v. S

tate , 863 So. 2 d 836, 874 ( M i s s. 2003) (“W e have repeatedly held that the c rim e of accessory af ter the f act i s an entirely separate and d i stinct of f ense and not a constituent part of a [ principal] of f ense so as
to be a lesser included of f ense.”). Thus, there is (or was) no indictm ent f or the accessory af ter-the-f act o f f ense f or which H all was c o nvicted and sentenced, to either d ism iss, nol

8pross, or pass to the f i les. And because Hall is entitled to have his indictm ent com prising his burglary charge dism issed with prejudice, Hall theref ore m eets the s tatutory prerequisites of Section 11-44-3(1)(c). Accordingly , the circuit c ourt’ s f inding that Hall had f

ailed to establish h is innocence as required b y Section 11-44-7(1)(b), on the basis that the Order Passing to Inactive Files was neither a dism issal n or a nol pross pursuant t o Section 11-44- 3(1)(c), was error. ¶20. Having f

ound that H all m e t Section 11-44-3’s p rereq u i s i t e s , w e r everse the circuit
court’s ruling and rem and the m atte r to the circuit court f or an evidentiary determ ination under S e c t i o n 1 1 -44-7, a f ter the parties have had an opportunity to conduct discovery in accordance with the Mississippi Rules of Civil Procedure.
CONCLUSION ¶21. For these reasons, we reverse the circuit court’s judgm ent and rem and the c ase to the Circuit Court of

Forrest County

f or f urther proceedings consistent with this opinion. ¶22. REVERSED AND REMANDED. WALLER, C.J., DICKINSON A N D R A N D O L P H , P . J J . , L A M A R, KITCHENS, KING, COLEMAN AND MAX WELL, JJ., CONCUR.

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