Branch v. State

• Citation: 163 So. 48,120 Fla. 666
• Parties: BRANCH v. STATE.
• Decision Date: 29 August 1935
• Court: United States State Supreme Court of Florida

163 So. 48

120 Fla. 666

BRANCH v. STATE.

Florida Supreme Court

August 29, 1935

Action by Talton A. Branch against the State of Florida. From a decree dismissing a petition seeking an order reinstating petitioner as a practicing attorney in the courts of the State of Florida, plaintiff appeals.

Decree affirmed, without prejudice. Appeal from Circuit Court, Hillsborough County; Harry N. Sandler, judge.

COUNSEL

Martin & Martin, of Plant City, for appellant.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD Justice.

The appeal in this case brings before us for review a decree of the circuit court of the Thirteenth judicial circuit in and for Hillsborough county dismissing petition of appellant which petition sought an order reinstating the petitioner in the court below, appellant here, as a practicing attorney in the courts of the state of Florida. It is shown by the petition that the appellant Branch was admitted to the bar of the courts of Florida by an order entered by the Chief Justice and Justices of the Supreme Court of Florida on the 10th day of June, 1921. On the 24th day of October, 1925 information was filed in the criminal court of record of Hillsborough county against Branch charging him with the offense of assault with intent to commit murder in the first degree. Said assault was alleged to have been committed upon the person of Harry C. Beaty.

The judgment appearing in the record here fails to show the degree of unlawful assault of which Branch was convicted, but the sentence was that he be confined in the State Prison at hard labor for a period of ten years. That sentence appears to have been entered October 2, 1926.

On the 9th day of October, 1929, an order was entered by the circuit court of Hillsborough county, Fla., wherein and whereby the said Branch was disbarred and deprived of the right to practice as an attorney or counselor at law in any and all of the courts of the state of Florida. The order of disbarment recites:

'And the court, being fully advised in the premises, finds that the evidence proves that the said Talton A. Branch has been guilty of unlawfully and feloniously, from a premeditated design to effect the death of one Harry C. Beaty, making an assault on the said Harry C. Beaty with a deadly weapon, to-wit, a pistol, which said pistol was then and there loaded with gun powder and metallic bullets and which said pistol, he, the said Talton A. Branch, then and there held in his hand in furtherance of the said assault the said Talton A. Branch, from a premeditated design to effect the death of the said Harry C. Beaty, did then and there shoot off and discharge said pistol, so loaded as aforesaid, at and toward him, the said Harry C. Beaty, and by so doing did, with the metallic bullets so shot off and discharged from the said pistol, strike him, the said Harry C. Beaty, in his body and limbs, thus and thereby inflicting divers severe and serious wounds in, on and upon the body and limbs of him, the said Harry C. Beaty; and so the said Talton A. Branch, in manner and form aforesaid, did unlawfully and from a premeditated design to effect the death of the said Harry C. Beaty make an assault upon him, the said Harry C. Beaty, with intent, him the said Harry C. Beaty, in manner and form aforesaid, then and there to kill and murder on the 10th day of September, A. D. 1925, as alleged and set forth in the said Amended Motion for Disbarment filed herein.'

On the 26th day of June, 1933, the State Board of Pardons, then composed of D. M. Sholtz, Governor, R. A. Gray, Secretary of State, Cary D. Landis, Attorney General, J. M. Lee, Comptroller, and Nathan Mayo, Commissioner of Agriculture granted to the said Branch a full and complete pardon of the offense of which he was convicted as hereinabove stated.

It is contended by the appellant that the pardon granted him by the board of pardons entitles him to an order of reinstatement as an attorney at law. The circuit judge entering the decree from which this appeal is taken in the said decree says:

'The order of disbarment is not based upon the conviction of the petitioner in the criminal court, but resulted from the hearing and proceedings in the circuit court. The pardon does not automatically restore to the petitioner his right to practice law and the petitioner upon his application for reinstatement should furnish, at least, the same evidence as to his moral character that is required from an applicant for admission to practice law in the first instance. The petitioner having declined to amend his petition so as to set forth that he is a person of good moral character, which leave was offered him by the Court, it is upon consideration thereof * * *'

That the several circuit courts of the state of Florida and the Supreme Court each has the power to make and enter effective orders and decrees reinstating to the rolls attorneys who have theretofore been disbarred, and thereby granting to them the privilege of again pursuing the profession of the practice of law in the state, cannot be successfully questioned.

Where an attorney at law has been disbarred because of misconduct, it is the province of the courts to determine whether or not he should be reinstated in his position as an attorney at law, and it is not material that he may have been tried and convicted because of a criminal offense involved in the same conduct and have been afterwards pardoned and restored to his full rights of citizenship by the State Board of Pardons.

The disbarment of a practicing attorney is not a part of the punishment inflicted for the commission of crime, but it is the withdrawing from him of an acquired right because of misconduct on his part which has been made to appear to a court of competent jurisdiction investigating that particular matter with a view to determining the propriety of such person continuing in the practice of law. He does not forfeit his right to practice law because of the conviction, but because of the adjudication that he had been guilty of conduct which shows him to be a person unfit to engage in the profession of practicing law. The pardon wiping out the conviction of the criminal offense will no more reinstate the attorney who has been disbarred (not because of conviction but because of the commission of a particular act) than would the refusal to grant the pardon preclude such person upon a...