50 Fla. 24 | Fla. | 1905
(after stating the facts.) This cause being, one of first impression in this court, and involving as it does the law governing the effect of a conditional pardon and its acceptance by the convict, and of a violation of its conditions, and the proper procedure upon a violation “thereof, we have given it exhaustive consideration, and find the law on the subject so concisely and accurately stated at page 595 et seq. of Vol. 24 Am. & Eng. Ency. of Law (2nd ed.) that we cannot do better than to quote what is there said as being the law: “It is settled law that, where a criminal accepts a pardon, he accepts it subject to all its valid conditions and limitations, and will be held' bound to a compliance therewith.”
“Where a conditional pardon has been granted and accepted, and the convict has fulfilled the conditions thereof, the effect of the pardon becomes the same as though it were by its terms full and absolute.”
“Before delivery and acceptance a pardon may be revoked by the officer or body granting it; but if the pardon is not void in its inception, it cannot be revoked for any cause after its delivery and acceptance are complete, for then it has passed beyond the control of the officer or body who granted it, and becomes a valid and operative act, of the benefits of which its recipient can be deprived only in some appropriate legal proceeding.”
“Where a prisoner has accepted a conditional pardon and has been released from imprisonment by virtue there
“Sometimes conditional pardons expressly provide that, upon violation of the condition, the offender shall be liable to summary arrest and recommitment for the unexpired portion of his original sentence. Such stipulations upon acceptance of the pardon become binding upon the convict and authorize his re-arrest and recommitment upon the terms imposedand we will add, authorize such arrest and recommitment in the manner and ~by or through the official authority as stipulated in the pardon.
“Where a convict has been released under a conditional pardon, his re-arrest and recommitment to his original sentence cannot be had upon the mere order of the Governor (or Board of Pardons) alone, unless such a course is provided hy statute, or by the express terms of the pardon.
“The convict (in the absence of a statute or of express provisions in the. pardon to the contrary,) is entitled to a hearing before some court of general criminal jurisdiction in order that he may show that ‘he has performed the condition of the pardon, or that he has a legal excuse for not having done so, or that he is not the same person who was convicted; and on such a hearing the court may, in its discretion, take the verdict of a jury as to the facts involved. But the criminal is not entitled to a jury trial as a matter of right, except upon the question whether he is the same person who was convicted.”
“In the absence of a statute, and unless the act constituting the violation of a condition in a pardon is in itself a criminal offense, the violation of the condition is not a ground for a prosecution by indictment.”
The proceeding to test the question whether or not there has been a violation of, or noncompliance with, the condition or conditions of a pardon is purely informal. The established practice at the common law and in the American States, in the absence of statutory regulation and in the absence from the pardon itself of express stipulations for that purpose, is for some court of general criminal jurisdiction upon having its attention called, ¡by affidavit or otherwise, to the fact that a pardoned convict has violated, or failed to comply with, the condition or conditions of his pardon, to issue a rule, reciting the original judgment of conviction and sentence, the pardon and its conditions and the alleged violation of, or non-compliance with, the condition or conditions thereof, and requiring the sheriff to arrest the convict and bring him before the court to show cause, if any he can, why the original sentence imposed upon him should not be executed. A copy of such rule should be served upon the convict at the time of bis arrest. When brought before the court upon such rule if the prisoner denies that he is the same person who was convicted, sentenced and pardoned, he is entitled to have a jury summarily empanelled to try such issue, but if his identity is not denied all the other facts and issues can be heard and tried by the Judge alone unless the Judge, solely within his discretion, shall see proper, for his own satisfaction, to submit the facts to a jury for
In the absence from the statutes of Florida of any provision authorizing the State Board of Pardons to ascertain and determine whether or not there has been a violation of, or non-compliance with, the condition or conditions of a pardon, and to order the re-arrest of the convict and the execution upon him of the original sentence, and in the absence from the pardon itself of express stipulations so authorizing such board, it has no authority to enquire into or pass upon the question of a violation of the condition or conditions of such pardon or to order the re-arrest of the convict, or to subject him to the execution of the original sentence imposed, and the order of the Board of Pardons made in this case under the circumstances here, undertaking to adjudge a violation of the conditions of his pardon by the plaintiff in error and revoking such pardon, and ordering the recommitment of the plaintiff in error in execution of his original sentence is a nullity. The return of the sheriff to the writ of habeas corpus, however, sets up and exhibits the original sentence and the conditional pardon as well as the subsequent order of the Board of Pardons revoking same, and
The record before us does not show whether or not the judge below in the habeas corpus proceeding instituted rny inquiry into the truth of the alleged violation by the plaintiff in error of the conditions of his pardon, such inquiry could have been done and should have been done, under the circumstances of the case in the habeas corpus proceeding , and inasmuch as the plaintiff in error has the right to have such inquiry made and determined by the proper authority the judgment of the court below must be reversed and remanded in order that such inquiry may be properly made and passed upon.
