Randall v. Florida Dept. of Law EnforcementRandall v. Florida Dept. of Law Enforcement
Leonard David RANDALL, Petitioner,
v.
FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Respondent.
District Court of Appeal of Florida, First District.
*1239 Sheldon Zipkin of Law Offices of Sheldon Zipkin, P.A., North Miami Beach, for Petitioner.
William L. Camper, General Counsel, Florida Parole Commission; John P. Booth, Assistant General Counsel, Florida Department of Law Enforcement, Tallahassee, for Respondent.
WEBSTER, J.
Leonard Randall seeks review by certiorari of the trial court's denial of a petition for a writ of mandamus which sought to compel the Florida Department of Law Enforcemеnt to issue a certificate of eligibility for expunction of his criminal history record pursuant to section 943.0585, Florida Statutes (Supp.1998). In essence, we are asked to decide whether a full pardon signed by the Governor of Florida (and approved by three members of the Cabinet) has the effect of wiping out guilt, so that the conviction is treated as though it had never occurred; or whether the pardon merely removes all lеgal punishment for the offense, forgiving, but not vitiating, the fact of guilt. We conclude that the latter is the correct view. Accordingly, we hold that the trial court did not depart from the essential requirements of law, and deny the petition.
I.
The pertinent facts are undisputed. Randall was convicted of falsely or fraudulently making a certificate as a notary public, a third-degree felony, in 1985. He was granted a full pardon by Governor Buddy MacKay (which was approved by the entire Cabinet) on December 21, 1998. On April 7, 1999, Randall applied to the Department of Law Enforcement for a certificate of eligibility to have his criminal history record expunged. On the application, he noted the conviction and the subsequent pardon. The Department of Law Enforcement denied the application on August 10, 1999, on the ground that "[t]he criminal history record reflect[ed] аn adjudication of guilty of the charge[ ] from the arrest or alleged criminal activity to which the application pertain[ed]." Randall then filed in the trial court a petition seeking a writ of mandamus to compel the Department of Law Enforcement to issue the certificate of eligibility.
In his mandamus petition, Randall recited the foregoing facts. He then cited the decision in Doe v. State,
II.
The scope of our review on such a petition for certiorari is limited to determining whether the trial court (1) afforded due process and (2) observed the essential requirements of law. Sheley,
Mandamus is an extraordinary remedy. State ex rel. Haft v. Adams,
III.
Section 943.0585, Florida Statutes (Supp.1998), authorizes "[a]ny court of competent jurisdiction [to] order a criminal justice agency to expunge the criminal history record of a minor or an adult who complies with the requirements of th[at] section." However, a court may not order a criminal history record expunged until the person seeking such action has applied for and received a "cеrtificate of eligibility for expunction" from the Department. The requirements for a certificate of eligibility are set out in section 943.0585(2). Upon receipt of an application which satisfies the statutory requirements, the Department has a legal duty to issue a certificate. Id. Among other things, a person seeking a certificate of eligibility must establish that he or she "[h]as not been adjudicated guilty of, or adjudicated delinquent fоr committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition to expunge pertains." § 943.0585(2)(e), Fla. Stat. (Supp.1998). Relying principally on *1241 the decision in Doe v. State,
The Florida Constitution provides that, "[e]xcept in cases of treason and in cases where impeachment results in conviction, the governor may, ... with the approval of three members of the cabinet, grant full or conditional pardons." Art. IV, § 8(a), Fla. Const. This is a discretionary power vested exclusively in the executive, with which neither the legislature nor the judiciary may interfere. Sullivan v. Askew,
A.
As previously noted, Randall relies principally on Doe v. State,
Reversing the trial court, the Fifth District rejected the state's argument "that a full and unconditional pardon does not remove the adjudication itself but only removes the disabilities which flow from such an adjudication." Id. It held that "[b]ecause a full and unconditional pardon legally blots out the finding of guilt, the pardоn removes all the attendant legal consequences which flow from an adjudication of guilt. The pardonee is no longer *1242 legally considered `convicted' or `adjudicated guilty' of that crime." Id. In doing so, it relied on four casesAdvisory Opinion to the Governor,
The Department argues that Doe is inapplicable because of changes in the controlling statutes since it was decided. It is true that the pertinent statutes have been amended since Doe. However, the fact remains that the language pertinent in Doe is substantively identical to that which is pertinent for our purposes. The Doe court was concerned with section 943.058(2)(b), Florida Statutes (1989), which precluded a court from expunging a criminal history record if the person who was the subject of the record had "been adjudicated guilty of any of the charges stemming from the arrest or alleged criminal activity to which the records expunction petition pertains." We are concerned with section 943.0585(2)(e), Florida Statutes (Supp. 1998), which precludes the Departmеnt from issuing a certificate of eligibility for expunction if the person who is the subject of the criminal history record has "been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition to expunge pertains." Just as in Doe, we must determine the effect of a "full pardon" by the Governor of Florida on an adjudication of guilt. Accordingly, we are unable tо distinguish Doe in any meaningful way. However, we conclude that the Doe court failed to consider the impact of certain relevant Florida Supreme Court decisions and, because of that, reached an incorrect result.
B.
In Advisory Opinion to the Governor, the Governor had asked "the opinion of the Judges of the Supreme Court upon the question whether the pardon of an individual, after conviction, restores the rights forfeited by the conviction."
"[A] pardon reaches both the punishment prescribed for the offеnce, and the guilt of the offender. When the pardon is full, it remits the punishment and blots out of existence the guilt, so that in the eyes of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights. It makes him as it were a new man, and gives him a new credit and capacity. There is only this limitation to its operation: it does not restore offices forfeited or property or interests vested in others in consequence of the conviction and judgment." (Ex parte Garland, [71 U.S. (]4 Wallace[)], [at] 380).
This is the language of the Supreme Court of the United States when determining the effect of a full pardon by the President of the United States. There is nothing in the Constitution or laws of this State to vary its effect here.
Id. at 319.
"[A]dvisory opinions to the Governor are not binding judicial precedents." Lee v. Dowda,
C.
In State v. Snyder,
When a disbarment proceeding is instituted predicated on the fact of a charge and conviction of embezzlement and bеfore final judgment, the defendant is granted a full and complete pardon restoring him to all rights of citizenship, does such pardon and restoration also restore him to his status as attorney at law and thereby warrant an abandonment of the disbarment proceedings then pending against him?
Answering the question in the negative, the court said that "[t]he pardon does not blot out the fact of having committed the crime for which disbarment is imposed." Id. at 382. It "does not reach and purge [one] of th[e] stigma" "attached to the fact of having been charged with and convicted of embezzlement." Id. "It merely restores civil rights that were forfeited for having committed and been convicted of the crime." Id. See also State v. Evans,
In Page v. Watson,
"When a full and absolute pardon is granted, it exempts the individual upon which it is bestowed from the punishment which the law inflicts for the crime which he has committed. The crime is forgiven and remitted, and the individual is relieved from all of its legal consequences. The effect of a full pardon is to make the offender a new man. While a pardon has generally been regarded as blotting out the existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense, it does not so operate for all purposes and as the very essence of a *1244 pardon is forgiveness or remission of penalty, a pardon implies guilt; it does not obliterate the fact of the commission of the crime and thе conviction thereof; it does not wash out the moral stain; as has been tersely said; it involves forgiveness and not forgetfulness."
Id. at 208. According to the court, the effect of the pardon was merely to "restore[ ] one to the customary civil rights which ordinarily belong to a citizen of the State, which are generally conceded or recognized to be the right to hold office, to vote, to serve on a jury, to be a witness." Id. at 207-08. The court acknowledged Advisory Opinion and Singleton, but concluded they were inapposite because they stood only for the proposition that a pardon remits all punishment attributable to the offense pardoned. Id. at 210.
Finally, in what appears to be its most recent pronouncement on the topic, in Sandlin v. Criminal Justice Standards & Training Commission,
We read Snyder, Page and Sandlin as intended by the court to limit the effect of the extremely broad language regarding the effect of a pardon found in Advisory Opinion, Singleton, and Marsh. More particularly, we read the former cases as intended to recede from any suggestion in the latter cases that a pardon has the effect of wiping out guilt, so that the conviction is treated as though it had never occurred. We read the latter cases as standing for the proposition that, while a full pardon restores one's civil rights and remits all punishment associated with the conviction, "`it does not obliterate the fact of the commission of the crime and the conviction thereof;'" nor does it "wash out the moral stain." Page,
IV.
Federal decisions appear to reach a similar conclusion regarding the effect of a full presidential pardon. (Such decisions would appear particularly persuasive considering that our supreme court relied in Advisory Opinion on what it understood to be the United States Supreme Court's interpretation of the effect of a pardon under federal law, as expressed in Ex parte Garland,
The unspokеn predicate of Noonan's argument is that a Presidential pardon has the force of wiping out guilt. He relies on dictum set forth in Ex Parte Garland,71 U.S. (4 Wall.) 333 , 380,18 L.Ed. 366 (1866): "A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he *1245 had never committed the offense."71 U.S. at 380 .
By 1915, however, the Court made clear that it was not accepting the Garland dictum that a pardon "blots out of existence the guilt." In Burdick v. United States,236 U.S. 79 ,35 S.Ct. 267 ,59 L.Ed. 476 (1915), the Court reaffirmed its reasoning in United States v. Wilson,32 U.S. (7 Pet.) 150 ,8 L.Ed. 640 (1833), and concluded that there is a "confession of guilt implied in the acceptance of a pardon." Burdick,236 U.S. at 91 ,35 S.Ct. at 269 . The Court explained that "[a pardon] carries an imputation of guilt; acceptance a confession of it." Id. at 94,35 S.Ct. at 270 .
Id. at 958. Following a lengthy analysis of the historical effect of a pardon, the Noonan court concluded:
[O]n the basis of long-held traditional views on the effect of a pardon, covering diverse periods and sources from Bracton and Blackstone to Professor Williston, from seventeenth century English cases to those in contemporary courts of Great Britain and the British Commonwealth, from 1915 teachings of the Supreme Court, and the 1975 analysis of the Court of Appeals of the Seventh Circuit, we conclude that the Presidential pardon of 1977 does not eliminate Noonan's 1968 conviction and does not "create any factual fiction" that Noonan's conviction had not occurred to justify expunction of his criminal court record. Poena tolli potest, culpa perennis erit (The punishment can be removed, but the crime remains). BLACK'S LAW DICTIONARY 1040 (5th ed.1979).
Id. at 960. To similar effect are Bjerkan v. United States,
V.
We conclude from Snyder, Page and Sandlin that our supreme court has adopted the position that, while a full pardon has the effect of removing all legal punishment for the offense and restoring one's civil rights, it does not wipe out either guilt or the fact of conviction. The Doe court failed to сonsider the impact of these decisions on its analysis. As a result, we believe that the Doe court misinterpreted the state of Florida law on the issue, and arrived at an erroneous conclusion. Accordingly, we decline to follow Doe, with which we note direct conflict. Instead, because the retention of Randall's criminal history record does not constitute punishment of any sort but, rather, merely accurately reflects the historical fact of his arrest and subsequent conviction, we hold that the trial court did not depart from the essential requirements of law when it denied Randall's petition seeking a writ of *1246 mandamus. The petition for a writ of certiorari is denied.
MINER and KAHN, JJ., CONCUR.