Ex Parte Alvarez

• Decision Date: 24 October 1905
• Citation: 50 Fla. 24,39 So. 481
• Parties: Ex parte ALVAREZ.
• Court: Florida Supreme Court

39 So. 481

50 Fla. 24

Ex parte ALVAREZ.

Florida Supreme Court, Division B.

October 24, 1905

Error to Circuit Court, Bradford County; R. M. Call, Judge.

Application by Edward Alvarez for writ of habeas corpus. From an order denying a motion to quash the return of the sheriff plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

The law is settled 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 thereof, but has violated or failed to perform the conditions, or any of them the pardon in case of a condition precedent does not take effect, and in case of a condition subsequent becomes void and the criminal may thereupon be rearrested and compelled to undergo the punishment imposed by his original sentence, or as much thereof as he had not suffered at the time of his release.

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 rearrest and recommitment upon the terms imposed, and 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 rearrest and recommitment to his original sentence cannot be had upon the mere order of the Governor or board of pardons alone, unless such course is provided by 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. Such proceeding and inquiry is preferably to be had before the court that originally tried and convicted the criminal, but may properly be had before any court of the state of general criminal jurisdiction.

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 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 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 noncompliance 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 his 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 impaneled 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 determination. If it be found upon such investigation that there has not been a violation of or noncompliance with the condition or conditions of the pardon, or if the convict shall show to the satisfaction of the court some valid reason or excuse for such violation or noncompliance, he should be discharged from custody; but if the violation of or noncompliance with the condition or conditions of the pardon be established to the satisfaction of the court, without any legal reason or excuse therefor, the convict should be remanded to custody and ordered to have the original sentence imposed upon him duly executed, or so much thereof as has not been already suffered by him. Such inquiry and proceedings may properly be had on the trial of a habeas corpus proceeding instituted by the convict himself to test the validity of his arrest and detention by the sheriff for an alleged violation of the conditions of his pardon.

COUNSEL

Long & Fielding, for plaintiff in error.

W. H Ellis, Atty. Gen., Benj. P. Calhoun, State Atty., and D. M. Gornto, for the State. The plaintiff in error, Edward Alvarez, was convicted at the spring term, 1899, of the circuit court for Bradford county of the crime of murder in the second degree, and sentenced to life imprisonment in the penitentiary, and upon such sentence was so imprisoned until the 6th day of April, A. D. 1904, when he was released from custody upon the following conditional pardon granted him by the state board of pardons:

'Whereas, at a meeting this day held at the Capitol at the city of Tallahassee, at which were present His Excellency W. S. Jennings, Governor of said state, A. C. Croom, Comptroller, B. E. McLin, commissioner of Agriculture, who under the Constitution of said state have full power to remit fines and forfeitures, commute punishments, and grant pardons after conviction, it was determined that the Edward Alvarez who was convicted at the spring term of the circuit court of Bradford county Fla., A. D. 1899, of the crime of murder in the second degree, and sentenced therefor to the state prison for the period of his national life, should now, upon the recommendation of a very strong petition, be granted a conditional pardon upon the conditions that he hereafter lead a sober, peaceable, and law-abiding life, failing in which the sheriff of any county is to rearrest him and return him to the state prison to complete the sentence so imposed. Therefore, be it known, that the said Edward Alvarez is hereby granted a conditional pardon upon the stipulated conditions mentioned and enumerated herein.

'In testimony whereof we have, at the Capitol at Tallahassee, hereunto set our hands this sixth day of April, A. D. 1904.

'[Signed] W. S. Jennings, Governor.

A. C. Croom, Comptroller.

'[Seal]

'B. E. McLin, Commissioner of Agriculture.'

He remained at large by virtue of the provisions of said conditional pardon until on or about the 17th day of June, A. D. 1905, when he was arrested by the sheriff of Bradford county and confined in the jail of said county under and by virtue of the following order of the state board of pardons, made on the 15th day of June, A. D. 1905:

'Whereas at a meeting held this day at the Capitol at the city of Tallahassee, at which were present His Excellency N. B. Broward, GOVERNOR OF FLORIDA, H. CLAY CRAWFORD, seCretary of STate, a. C. Croom, Comptroller, B. E. McLin, Commissioner of Agriculture, W. H. Ellis, Attorney General of said state, having full power to remit fines and forfeitures, commute punishments, and grant pardons after conviction, it was made to appear that Edward Alvarez, who was convicted at the spring term of the circuit court, A. D. 1899, held in and for Bradford county, Florida, of the crime of murder in the second degree, and sentenced therefor to the state penitentiary for the full term and period of his natural life, and who was later, to wit, on the 6th day of April, 1904, by the board of pardons of the state of Florida granted a conditional pardon from said sentence on account of good behavior, said pardon being conditional upon the said Edward Alvarez leading, after the granting of the same, a sober, peaceable and law-abiding life, failing in which any sheriff was authorized and directed to rearrest the said Edward Alvarez and return him to the state prison to complete the remainder of said sentence; and it now appearing that the said Edward Alvarez has not kept and observed the conditions and obligations of the said conditional pardon as above granted him, but that he has been charged with the crime of continuous drunkenness, disorderly conduct, a menace to society, etc., in said state: It is now, therefore, ordered that the conditional pardon...