Sullivan v. Askew

Citation348 So.2d 312
Decision Date30 June 1977
Docket NumberNo. 51276,51276
PartiesRobert A. SULLIVAN, Gary E. Alvord and Learie L. Alford, Appellants, v. Reubin O'D. ASKEW, etc., et al., Appellees.
CourtUnited States State Supreme Court of Florida

Andrew A. Graham of the Law Offices of Charles M. Holcomb, Cocoa, and Tobias Simon and Elizabeth Du Fresne, Miami, for appellants.

Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., and Eleanor A. Mitchell, Asst. Gen. Counsel, Tallahassee, for appellees.

KARL, Justice.

We have for review by direct appeal an order of the Circuit Court, in and for Leon County, granting appellees' motion to dismiss and deny appellants' petition for temporary injunctive relief, in which the court construes provisions of the Constitution of Florida, thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Sullivan, Alford and Alvord, all convicted of capital felonies and sentenced to death (which convictions and sentences have been affirmed on appeal), filed a complaint for declaratory and injunctive relief and alleged that the Governor, along with three concurring members of the Cabinet, has the authority under Article IV, Section 8, Florida Constitution, to commute the death sentences by granting clemency; that a hearing is required; that minimal due process, including a fair and impartial tribunal, the right to be heard in person and by counsel, and written standards or guidelines setting forth factors to be considered in granting clemency, is required; and that the scheduled hearings deny due process. The trial court granted appellees' motion to dismiss the complaint on the basis that it lacked jurisdiction over appellees pursuant to Article II, Section 3, and Article IV, Section 8, Florida Constitution, and lacked jurisdiction of the cause, pursuant to the same constitutional provisions, and that the complaint failed to state a cause of action.

The Parole and Probation Commission conducted investigations into each of appellants' cases and made a negative recommendation relative to commutation.

Preliminarily, we consider the decision of the trial judge expressly finding that the court lacks jurisdiction over the parties and the subject matter. Article V, Section 5, of the Florida Constitution vests the circuit courts with plenary power and the jurisdiction to construe all sections of the Constitution. Cf. Curtis et al. v. Albritton, 101 Fla. 853, 132 So. 677 (1931). It is a judicial responsibility to interpret and construe provisions of the Constitution when there are ambiguities or conflicts. The court may determine constitutional intent to assist in the decision of whether a given responsibility lies exclusively with one branch, whether that branch has been granted restricted or unrestricted power to perform such duties and whether the constitutional provision fixing the responsibility is self-executing. Moreover, the Court may determine whether any constitutional grant of power is being exercised according to the specific grant and in a manner that does not violate any other provision of the Constitution. The trial judge was in error when he held that the court was without jurisdiction, but because, as explained below, the clemency power is exclusively in the executive branch, he was correct in determining that the complaint fails to state a cause of action.

The clemency power, which is the power to suspend collection of fines and forfeitures, to grant reprieves, to grant full or conditional pardons, restore civil rights, commute punishments, and to remit fines and forfeitures for offenses, reposes exclusively in the Chief Executive.

Historically, the pardoning power was a part of the royal prerogative in England. Defining a pardon, Chief Justice Marshall, in United States v. Wilson, 7 Pet. 150, 8 L.Ed. 640, stated:

"A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court."

This power flows from the Constitution and not from any legislative enactment, Advisory Opinion of the Governor, In Re: Administrative Procedure Act: Executive Clemency, 334 So.2d 561 (Fla.1976). The United States Supreme Court, in Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974), concluded:

"A fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by § 2, cl 1, was to allow plenary authority in the President to 'forgive' the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. If we were to accept petitioner's contentions, a commutation of his death sentence to 25 or 30 years would be subject to the same challenge as is now made, i. e., that parole must be available to petitioner because it is to others. That such an interpretation of § 2, cl 1, would in all probability tend to inhibit the exercise of the pardoning power and reduce the frequency of commutations is hardly open to doubt. We therefore hold that the pardoning power is an enumerated power of the Constitution and its limitations, if any, must be found in the Constitution itself. It would be a curious logic to We quote with approval the following excerpt from American Jurisprudence :

allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutations which he sought." (Emphasis supplied.)

"An executive may grant a pardon for good reasons or bad, or for any reason at all, and his act is final and irrevocable. Even for the grossest abuse of this discretionary power the law affords no remedy; the courts have no concern with the reasons which actuated the executive. The constitution clothes him with the power to grant pardons, and this power is beyond the control, or even the legitimate criticism, of the judiciary. Whatever may have been the reasons for granting the pardon, the courts cannot decline to give it effect, if it is valid upon its face, and no court has the power to review grounds or motives for the action of the executive in granting a pardon, for that would be the exercise of the pardoning power in part, and any attempt of the courts to interfere with the governor in the exercise of the pardoning power would be manifest usurpation of authority, no matter how flagrant the breach of duty upon the part of the executive, unless granted the power by competent authority or unless fraud has entered into the case."

Article IV, Section 8, Florida Constitution, provides:

"(a) Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.

"(b) In cases of treason the governor may grant reprieves until adjournment of the regular session of the legislature convening next after the conviction, at which session the legislature may grant a pardon or further reprieve; otherwise the sentence shall be executed."

By this self-executing constitutional provision, the people of this state chose to vest sole, unrestricted, unlimited discretion exclusively in the executive in exercising this act of grace. This Court, in In Re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla.1975), explained:

"We find that the well established principle of expressio unius est exclusio alterius applies sub judice. The people of this state through adoption of Article IV, Section 8, Florida Constitution expressed their will that the power of pardon and restoration of civil rights vest in the executive. As aforestated, this Court has previously determined that this method is exclusive. As this Court expressly declared in Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253, 256 (Fla.1927):

'The principle is well established that, where the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. Holland v. State, 15 Fla. 455, text 523. See, also, Grantham v. Board of Public Inst., 77 Fla. 540, 82 So. 52. Therefore, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision. (Cases cited.)' "

Article II, Section 3, Florida Constitution, divides government into three separate and distinct branches of government and provides that "(n)o person belonging to one branch shall exercise any powers...

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