Kellogg v. State

• Decision Date: 13 December 1972
• Docket Number: No. A--17129,A--17129
• Citation: 504 P.2d 440
• Parties: Clarence E. KELLOGG, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 440

504 P.2d 440

Clarence E. KELLOGG, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17129.

Court of Criminal Appeals of Oklahoma.

Dec. 13, 1972.

Paul D. Brunton, Public Defender, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Mike Jackson, Asst. Atty. Gen., for appellee.

OPINION

BRETT, Judge:

Appellant, Clarence E. Kellogg, hereinafter referred to as defendant, was convicted in the District Court of Tulsa County, Case No. CRF 71--1055, for carrying a firearm after a felony conviction in violation of 21 O.S.1971, § 1283. A suspended sentence of two years imprisonment was imposed on September 1, 1971, and this appeal, by writ of certiorari, was perfected therefrom.

It was charged by information that the defendant did on June 14, 1971, carry in an automobile a .38 caliber automatic pistol. The second page of the information alleged that the defendant was carrying said pistol subsequent to his conviction for robbery, a felony, in the State of Nevada, on January 7, 1948.

It is defendant's single contention that his Nevada conviction was pardoned by the State of Nevada, and that such pardon must be given full force and effect in Oklahoma, which would, argues the defendant, bar his prosecution for a violation of 21 O.S.1971, § 1283.

The record establishes that subsequent to the defendant's 1948 conviction for robbery in Washoe County, Nevada, the State of Nevada did 'Pardon and restore to the said Clarence E. Kellogg all rights heretofore enjoyed by him, including those of citizenship and sufferage.' This pardon was signed by the Governor, Justices of the Supreme Court, and Attorney General of Nevada.

United States Constitution, Article IV, § 1, requires 'Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.' Defendant contends that under Nevada law an 'unconditional pardon of an offense removes all disabilities resulting from conviction thereof.' State v. Foley, 15 Nev. 64, 69 (1880). Therefore, defendant argues that Nevada's pardon, removing all disabilities from his conviction, must be given full effect in Oklahoma.

As to the effect of a pardon, it is true in some jurisdictions that a pardon 'completely frees the offender from the control of the state and relieves him of all legal disabilities resulting from his conviction.' Taran v. United States, 266 F.2d 561, 566 (8th Cir. 1959). State v. Meyer, 228 Minn. 286, 37 N.W.2d 3, 13. Although Oklahoma may have once followed such a view, the present position in this jurisdiction is that a conviction 'is not wiped out by a pardon, as the pardon by the executive power does not blot out the solemn act of the judicial branch of the government.' Thus a pardoned felony conviction may be used to increase punishment on a subsequent conviction under the habitual criminal statute, 21 O.S.1971, § 51. Scott v. Raines, Okl.Cr., 373 P.2d 267 (1962). This view, that a pardoned prior conviction may be used for purposes of enhancing punishment on a subsequent conviction, appears to be...