State v. Horne
| Decision Date | 27 November 1906 |
| Parties | STATE v. HORNE. [*] |
| Court | Florida Supreme Court |
In Banc. Error to Circuit Court, Gadsden County; John W. Malone Judge.
Application by S. Peter Horne for a writ of habeas corpus. From an order granting the writ, the state brings error. Reversed.
Syllabus by the Court
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 condition, 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 so much thereof as he had not suffered at the time of his release.
A conditional pardon may, by its express terms, provide that upon violation of the conditions, 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 in the manner and by or through the officials authorized as stipulated in the pardon.
Under a statute which provides that, 'in all cases, the court shall award the sentence and shall fix the punishment or penalty prescribed by law,' the power of the court extends to fixing the punishment; that is, the length of time within the given maximum a prisoner should be imprisoned. The law does not contemplate that the court, in fixing the punishment, shall also fix the beginning and end of the period during which the imprisonment shall be suffered. The time fixed for executing a sentence or for the commencement of its execution is not one of its essential elements, and strictly speaking, is not a part of the sentence at all. The essential part of the sentence is the punishment, including the kind of punishment and the amount thereof without reference to the time when it shall be inflicted. The sentence with reference to the kind of punishment and the amount thereof should, as a rule, be strictly executed. But an order of the court, with reference to the time when the sentence shall be executed, is not so material. Expiration of time without imprisonment is in no sense an execution of the sentence.
Where reference is made in a conditional pardon to the sentence to be affected by the pardon, the sentence is to be taken in its legal and proper aspect, without reference to the words.
Where a conditional pardon contains a provision that, upon the breach of the condition on which the pardon is granted, 'it shall be the duty of the sheriff of any county of this state to immediately arrest him and return him to the penitentiary to serve out the remainder of his term,' the reference is to the material terms of the sentence, viz., to the length of imprisonment fixed by the sentence, and not to the particular period of time mentioned in the sentence during which it was to be executed, since the latter is not a material or effective part of the sentence.
Under a constitutional provision that the pardoning power 'may upon such conditions and with such limitations and restrictions as they may deem proper * * * grant pardon after conviction, in all cases except treason and impeachment subject to such regulations as may be prescribed by law relative to the manner of applying for pardons,' the pardoning power may, in granting a pardon after conviction impose any condition, limitation, or restriction that is not illegal, immoral, or impossible of performance, and the acceptance of the pardon binds the person accepting it to all such conditions, limitations, and restrictions contained therein that are legal, moral, and possible of performance.
The condition of a pardon that requires reimprisonment for the original sentence of imprisonment after the expiration of the particular period of time fixed by the court within which the sentence imposed should be executed is not immoral or impossible of performance during the life of the convict, nor is it illegal, since the particular period of time within which the sentence is to be suffered by the convict as specified in the sentence is not a part of the legal sentence except so far as it fixes the quantum of time that he must suffer such penalty, and the condition imposed is not forbidden by law and does not increase the punishment imposed by the court in the sentence.
If the condition of a pardon upon which the convict secures his release from imprisonment is violated, the pardon becomes void and the convict may be arrested to undergo so much of the original sentence as he had not suffered at the time of his release. When the conditions of a pardon are violated, the pardon is thereby rendered in law void, and, if the sentence of imprisonment has not been fully executed, the law imposes the obligation to complete the service of imprisonment fixed in the judgment of conviction and sentence of punishment. The pardon may, as one of its restrictions and limitations, designate a time for the observance of its conditions, but, when the conditions are violated, the pardon becomes void in law, and the party is subject to the unsatisfied portion of his sentence as though no pardon had been granted.
When a convict has been released upon a conditional pardon, his rearrest and recommitment cannot be had upon the mere order of the Governor alone unless such a course is provided by statute or by the express terms of the pardon. Unless a statute or the express terms of the pardon provide otherwise, the convict is entitled to a hearing before a court of general criminal jurisdiction in order that he may show, if he can, that he has performed the conditions of the pardon, or that he has a legal excuse for not having done so, or that he was 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 convict is not entitled to a jury trial as a matter of right except upon the question as to whether he is the same person who was convicted.
W. H. Ellis, Atty. Gen., for the State.
T. L Clarke and W. C. Hodges, for defendant in error. On July 25, 1906, the defendant in error by counsel presented to the Chief Justice of this court a petition for a writ of habeas corpus sworn to by the petitioner in which it is stated that 'the petitioner is unlawfully, as he apprehends, restrained of his liberty by' the sheriff of Leon county, Fla., who 'holds petitioner in custody by virtue of a revocation of pardon or commitment, * * *' and does not hold him by virtue of any other writ or process; that on April 15, 1898, in the Circuit Court for Gadsden county petitioner was convicted of the offense of assault with intent to murder, and on April 22, 1898, was sentenced to five years imprisonment from the date of the sentence; that on January 5, 1901, he was granted a conditional pardon by the pardoning board of Florida, and was thereby restored to his liberty, and he returned to Leon county; that on July 18, 1906, 'long after the terms of years of his original sentence had expired, and without giving him an opportunity to be heard by himself or counsel,' the Governor of the state of Florida, without authority of law, revoked the pardon granted to petitioner and ordered that he be recommitted to the state prison; that by reason thereof the sheriff of Leon county is detaining the petitioner in the county jail at Tallahassee, Fla., for the purpose of surrendering him to the state prison authorities. The verdict and sentence of conviction, the conditional pardon, the executive order for reimprisonment, and the return of the sheriff thereon are as follows:
'It is considered by the court that you, Peter Horn, for your said offense of assault with intent to murder of which you now stand convicted, be imprisoned by confinement in the state prison at hard labor for the period of five years, to begin and run from this day, and that you do pay the costs of this prosecution.' April 22, 1898.
'State of Florida:
'Whereas, at a meeting this day held at the capitol in the city of Tallahassee, at which were present His Excellency William D. Bloxham, Governor of said state, John L. Crawford, Secretary of State, William H. Reynolds, Comptroller, -----, Commissioner of Agriculture, and William B. Lamar, Attorney General of said state, who under the Constitution of said state, have full power to remit fines and forfeitures, commute punishments and grant pardons after convictions, it was determined that Peter Horn, who was convicted at the Spring term, A. D. 1898, of the circuit court of Gadsden county, Fla., of an assault with attempt to murder, and was sentenced therefor to imprisonment at hard labor in the penitentiary for the term of five years, should now, upon petitions signed by numerous citizens of Gadsden and Wakulla counties, members of the Legislature and other prominent citizens, be granted a pardon conditioned upon his abstaining hereafter from all intoxicating liquors and other beverages, and shall lead a peaceable, law-abiding life, failing in which it shall be the duty of any sheriff of this State to at once arrest him and return him to complete his term.
'Therefore be it known, that the said Peter Horn, is hereby granted a conditional pardon, it being a condition of this pardon that if the said Horn shall break the peace, take a drink of intoxicating liquor or other beverage,...
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