Sandlin v. Criminal Justice Standards and Training Com'n, BJ-283

• Decision Date: 11 August 1987
• Docket Number: No. BJ-283,BJ-283
• Citation: 518 So.2d 1292,12 Fla. L. Weekly 1938
• Parties: 12 Fla. L. Weekly 1938 Benjamin U. SANDLIN, Appellant, v. CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.
• Court: Florida District Court of Appeals

Page 1292

518 So.2d 1292

12 Fla. L. Weekly 1938

Benjamin U. SANDLIN, Appellant, v. CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.

No. BJ-283.

District Court of Appeal of Florida,

First District.

Aug. 11, 1987.

Elizabeth L. White and William J. Sheppard, of Sheppard and White, Jacksonville, for appellant.

Joseph S. White, Asst. General Counsel, Florida Dept. of Law Enforcement, Tallahassee, for appellee.

BARFIELD, Judge.

Benjamin U. Sandlin appeals an order of the Criminal Justice Standards and Training Commission refusing to certify him as a law enforcement officer because of his past criminal record, pursuant to section 943.13(4), Florida Statutes (1985), notwithstanding a pardon and an exemplary record thereafter. At issue is the legal significance and effect of a pardon under Florida law. We affirm.

Section 943.13(4) precludes any person who has been convicted of any felony from being employed or appointed as a law enforcement officer in Florida. In the early 1960's, when appellant was in his teens, he was convicted of robbery, escape and assault. He was paroled in 1965 and has not been arrested or convicted of any offenses since that time. In 1968, upon recommendation of the Florida Parole and Probation Commission, appellant was granted a full pardon for the offenses, pursuant to chapter 940, Florida Statutes (1968).

Appellant is employed by the Jacksonville Sheriff's Office as a correctional officer and has since 1971 served as the chief bailiff for Circuit Court Judge Hudson Olliff. He has been commended for his diligence and professionalism in carrying out his duties both with the sheriff's office and the court system. In 1985, the Jacksonville Sheriff's Office requested that the Criminal Justice Standards and Training Commission certify him as a police officer, including in its request a letter from Sheriff Dale Carson stating that the sheriff's office is aware of his past arrest and conviction record, but "after fifteen years of loyal, dedicated service to the department as a Correctional Officer, we have no reservation in our desire to now employ him as a Police Officer".

At the hearing on the certification request, appellant presented uncontroverted evidence of his good moral character, his outstanding reputation in the law enforcement field, and his continuing education since his pardon. Judge Olliff spoke in his behalf, characterizing him as "a young man who got into trouble at an early age, saw the error of his ways, and is now a good solid law-abiding and respected citizen." Appellant also presented letters of reference from judges, assistant state attorneys, public defenders, private attorneys, and a probation officer. Although some members were sympathetic to appellant, the Commission voted to deny certification, finding that section 943.13, Florida Statutes (1985), precluded it from certifying a person who has been convicted of a felony, even though he has been granted a pardon.

According to the rules promulgated by the Office of Executive Clemency, "A full pardon unconditionally releases from punishment, forgives guilt and entitles an applicant to all the rights of citizenship enjoyed by him before his conviction. It freely and unconditionally absolves the offender from all legal consequences of the conviction under Florida law."

Appellant asserts that section 943.13(4) should not be interpreted as an absolute disqualification of all felons, regardless of a full pardon and regardless of present moral character, because such an interpretation ignores the power of a full pardon and nullifies the restoration of civil rights and the removal of disqualifications granted by the executive branch of government under chapter 940. He contends that a full pardon, by its terms, has the effect of removing the disabilities created by the conviction and allows the pardoned felon to hold office, to vote, and to serve on a jury in a court of law.

Appellant argues that the removal of the consequences of conviction should include reinstatement of eligibility for certification as a police officer, citing Commissioner of the Metropolitan District Commission v. Director of Civil Service, 348 Mass. 184, 203 N.E.2d 95 (1964), involving a similar Massachusetts statute, and Slater v. Olson, 230 Iowa 1005, 299 N.W. 879 (1941), in which the court reasoned that an interpretation denying a civil service position to a pardoned felon would render an Iowa statute unconstitutional as an encroachment upon the exclusive pardoning power of the executive branch of government. He asserts that by denying him certification as a police officer, the Commission imposed upon him a "legal disability," which is precisely what the clemency board sought to remove when it granted him a full pardon.

Relying on several Florida Supreme Court cases ¹, appellant contends that although the Florida Supreme Court has not yet had the opportunity to determine the effect of a full pardon on a felon's eligibility for police service, case law supports the conclusion that a full pardon removes the disqualification in such a case, where the applicant otherwise demonstrates his good moral character.

The Commission contends that its interpretation of the statute is in furtherance of the intent of the Florida Legislature, noting that although section 112.011(1)(b), Florida Statutes (1985), specifies that a person who has been convicted of a crime and has had his civil rights restored shall not be disqualified from the practice of a profession for which a state-issued certificate is required unless the crime directly relates to the practice of the profession, section 112.011(2)(a) specifically provides that this provision "shall not be applicable to any law enforcement or correctional agency." The Commission asserts the legislative intent is clear that a law enforcement officer candidate with a felony conviction shall not be certified and allowed to be employed in this state, regardless of the existence of a pardon. The Commission urges this Court to uphold its interpretation of section 943.13(4), which it asserts was made in deference to the Florida Supreme Court, ² the Florida Attorney General, ³ and the Florida Legislature.

The administrative construction of a statute by the agency charged with its administration is entitled to great weight and should not be overturned unless "clearly erroneous", Department of Insurance v. Southeast Volusia Hospital District, et al., 438 So.2d 815, 820 (Fla.1983), appeal dismissed, 466 U.S. 901, 104 S.Ct. 1673, 80 L.Ed.2d 149 (1984). The burden is upon appellant to show that the Commission's interpretation of section 943.13(4) is clearly erroneous, not merely that another interpretation would lead to a more just result in this litigation.

While we sympathize with appellant's situation, we are unable to say that the Commission's interpretation of section 943.13(4) is clearly erroneous, in light of Florida case law ⁴ and the language of sections 112.011 and 943.13(4). We are not inclined to give the statute a contrary interpretation on the strength of authorities from other jurisdictions. ⁵

In his dissent, Judge Ervin admits that he cannot fault the Commission's interpretation of the statute, but concludes, admittedly on the basis of an incomplete record and arguments by counsel that only obliquely suggested the issue, ⁶ that the Commission's order must be reversed because it is based upon an unconstitutional statute. Judge Ervin concedes that sections 943.13(4) and 112.011, when considered together, clearly reflect the legislature's intent that a prior felony conviction is a complete bar to a person's certification as a police officer, notwithstanding his later receipt of a pardon, and that section 112.011(2)(a) removes from the Commission any discretion to act favorably on such an application. He also concedes the legislature's authority, in the exercise of its police powers, to regulate or restrict any business, trade, or occupation in order to protect the public health, morals, or general welfare. We are in agreement up to this point.

However, we cannot agree with Judge Ervin's conclusion that the legislature's preclusion of any discretion by the Commission to consider such an applicant's request for certification unconstitutionally violates the separation of powers doctrine set out in Article II, section 3 of the Florida Constitution. While we agree that the power of pardon is vested exclusively in the executive branch, it does not follow that the legislature's legitimate exercise of its police power to protect the public welfare by precluding employment as police officers those who have been convicted of crimes, because it may affect persons who have been pardoned by the executive branch, thereby becomes an encroachment upon the exercise of the pardon power.

Denial of the privilege of employment by the State of Florida as a law enforcement officer is not a part of the punishment imposed upon one convicted of a felony, but a legitimate restriction aimed at safeguarding the general welfare of Florida's citizens. A pardon may relieve a person from the legal disabilities attendant upon a conviction, but it does not erase the fact of the conviction.

The Florida Legislature has apparently concluded that the fact that a person has been convicted of a felony, whether or not he has been pardoned, and notwithstanding his record thereafter, reflects unfavorably upon that person's ability to carry out the duties of a law enforcement officer, or that employment of such a person in such a position would seriously affect the public perception and functioning of the criminal justice system and the enforcement of law in this state. The wisdom of this conclusion, and the wisdom of the means chosen by the legislature to protect the public and the law enforcement system from officers whose bad moral character, real or perceived, might adversely affect the enforcement of the laws of this state,...