Procedure: Hearing.-The rules of the board of pardons provide further that applications must be filed at least 30 days before the date set for the meeting of the board at which the application is to be heard. Five days before the board meeting, the secretary prepares a calendar in alphabetical order of all cases to be presented at the meeting, setting forth the salient facts of each case. The applicant is notified 3 days before the board meeting of the time for his appearance. Excepting emergency cases, a case once denied will be reheard only after expiration of 12 months from the date of the meeting at which it was first heard.1o The board meets in open session semiannually. No special sessions are held for any purpose except for hearing commutation of death penalties where execution would take place before the next regular session of the board.11 Decisions are not arrived at immediately, as in some States, but some weeks after the hearing. Conditional pardon.-The pardoning board may grant a pardon "upon such conditions and with such limitations and restrictions as they may deem proper." 12 The pardons may contain any conditions that are not illegal, immoral, or impossible of performance.13 When the conditions of the pardon have been fulfilled, the effect of the pardon becomes the same as though it were by its terms full and absolute.11 Conditional pardons are extensively used, and are in fact, more common than paroles, which are themselves only a form of conditional pardon under the Florida law. Revocation of conditional pardon.-A conditional pardon, when accepted by a convict, becomes binding on the State as well as upon the convict, and hence cannot be revoked except in accordance with its terms.15 Where the conditional pardon itself expressly provides that upon violation of the conditions, the board may summarily have the convict arrested and recommitted, such stipulation upon acceptance becomes binding upon the con 10 Rules of the State Board of Pardons. 11 Ibid. 12 Fla. Const. art. IV, § 12. 1 See State v. Horne, 52 Fla. 125, 137, 42 So. 388, 392 (1906). vict, and he cannot later complain if he is summarily arrested and recommitted.10 However, in the absence of such express provision either in the pardon itself or in the statutes, the person is entitled to a judicial hearing on the question of whether he did or did not in fact violate the conditions, or if he did, whether he had a legal excuse for doing so; and if his defense is that he is not the person who was convicted, he is entitled as a matter of right to a jury trial on this issue. The board of pardons has no authority to determine whether the person has violated his pardon, or to order him recommitted for such violation. The proper procedure is for a court of general criminal jurisdiction (preferably the court that originally tried and convicted the criminal) upon having its attention called by affidavit or otherwise to the fact that a pardoned convict has failed to comply with the conditions of his pardon, to issue a rule, reciting the original judgment and sentence, the pardon and its conditions, and the alleged violation or noncompliance, and requiring the sheriff to arrest the convict and bring him before the court to show cause, if he can, why the original sentence should not be executed. A copy of such rule is to 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 and pardoned, he is entitled to a jury trial upon this issue, as already stated. But if he does not deny his identity, all other issues may be tried informally by the judge, who may, in his discretion, submit the facts to a jury.17 "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 he rearrested 16 However, even where there is such express provision for revocation by the board, this is not exclusive. Any court of criminal jurisdiction has power, upon being satisfied that the conditions have been breached, to declare the pardon null and void. Henderson v. State, 55 Fla. 36, 44 So. 151 (1908). 17 Ex parte Alcarez, 50 Fla. 24, 39 So. 481 (1905); State v. Horne, 52 Fla. 125, 42 So. 388 (1906); Carraway v. State, 58 Fla. 15, 51 So. 142 (1909). 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.18 When it is found that the conditions of a pardon have been violated, the convict is recommitted to serve the unexpired portion of his sentence. The time spent at liberty on conditional pardon is not counted as time served on the sentence. Apparently, conditions may be made to apply indefinitely, so that if at any time during his life time the person so pardoned violates the conditions, he may be arrested and recommitted to serve the remainder of his sentence.19 Commutation. The power of the board includes the power to "commute punishment." 20 The distinction between commutation and pardon has been stated by the Florida court as follows: "Pardon' exempts from punishment, bears no relation to term of punishment, and must be accepted or it is nugatory; while 'commutation' merely substitutes lighter for heavier punishment, removes no stain, restores no civil privileges, and may be effected without the consent and against the will of the prisoner." 21 An act of 1935 provides that if a person is convicted of a capital offense, and on appeal the supreme court is equally divided, the board of pardons must immediately commute the sentence to life imprisonment.22 Effect of pardon.-By statute, persons receiving a full pardon from the board of pardons are entitled to be restored to all rights of citizenship enjoyed before their conviction, whether the pardon is granted before or after the expiration of sentence. A pardon does not operate, however, 18 State v. Horner, 52 Fla. 125, 133, 42 So. 388, 391 (1906); Ex parte Alvarez, 50 Fla. 24, 32-33, 39 So. 481, 484 (1905). 10 State v. Horne, 52 Fla. 125, 42 So. 388 (1906). In this case, defendant was convicted and given a 5-year sentence in 1898. In 1891 he was given a conditional pardon. In 1906 he was ordered arrested and recommitted for the remainder of his sentence, because of alleged breach of conditions. Held, the fact that more than 5 years had elapsed since the original sentence was immaterial. He could still, upon breach, be recommitted to serve out the time not actually served in prison. 20 Fla. Const. art. IV, § 12. 21 See Stone v. Burch, 114 Fla. 460, 463, 154 So. 128, 129 (1934). 22 Fla. Laws 1935, ch. 16810, § 1. to "restore offices forfeited, and property and interests vested in others in consequence of the conviction and judgment." 28 A pardoned offense cannot be considered a prior offense under the laws providing increased punishment for a second offense. However, where the defendant was given a conditional pardon for his first offense, conditioned upon his leading a "sober, peaceable and law abiding life," his conviction for a later violent felony was itself a violation of the condition, rendering the pardon void, and therefore the defendant may be sentenced as a second offender.24 GOOD-TIME DEDUCTIONS History. The act of 1871 establishing the State prison provided that the warden should keep account of the conduct of prisoners and record a credit of 3 days per month for each prisoner who had not been punished for bad conduct and of 5 days per month for each prisoner who, besides behaving well, had done his work well. Credits accumulated when allowed by the commissioners in charge of the prison were to be deducted from a sentence.2 Under an act of 1877 a similar system of deduction was continued under the supervision of the adjutant general instead of the warden, except that credits were reduced to 2 days per month for ordinary good conduct and to 3 days per month if the prisoner's work was also done well. In 1889 provision was made for the supervision of the system by the superintendent of the prison.* 23 Fla. Comp. Gen. Laws Ann. (Skillman, 1927) § 8495. See In re Executive Communication, 14 Fla. 318 (1872) (a pardon "reaches both the punishment prescribed for the offense and the guilt of the offender. When the pardon is full, it remits the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense"); Singleton v. State, 38 Fla. 297, 21 So. 21 (1896). "Henderson v. State. 55 Fla. 36, 44 So. 151 (1908). The fact that the pardon in this case provided that upon breach it might be revoked by the board of pardons was held not to exclude the court from itself annulling the pardon if satisfied it had been breached. 1 Fla. Laws 1871, ch. 1835, § 26. Ibid. 3 Fla. Laws 1877, ch. 3033, § 26. Fla. Laws 1889 (extra sess.), ch. 3883, § 23. 73115-39-VOL. I-18 In 1911 a law providing for a graduated scale of deductions for good conduct was adopted. This law also, provided for a forfeiture of 1 month's credit for an ordinary act of misconduct, and of all good time credits for serious misconduct such as mutiny, escape or attempted escape. Convicts sentenced for life who had served 15 years with good behavior were to be recommended for a commutation of sentence, and, if the sentence should be commuted, credit was to accrue as on a definite sentence. In 1915 the previous act was amended to eliminate the provision allowing forfeiture of a month's good time for ordinary misconduct." The present law was enacted in 1937.7 8 9 By whom administered.-Under the 1937 statute good time deductions are to be allowed by the commissioners of State institutions and a record of conduct is to be kept by the commissioner of agriculture who is responsible for the administration of the State prison.10 In practice, however, the superintendent of the State prison keeps the records and entire credit for good conduct. The law is practically automatic in operation. Persons eligible.-All inmates of the prison, except those sentenced for life, may earn good time credit, and if a life sentence is commuted to a term of years, the prisoner affected may earn deductions.11 Prisoners sentenced for life who have actually served ten years and who have not been guilty of misconduct are Fla. Laws 1915, ch. 6917, § 1. This act also corrected the obvious omission in the previous act wherein no deduction was provided for the 5th year of a sentence. Fla. Laws 1937, S. B. No. 58, amending Fla. Comp. Gen. Laws Ann. (Skillman, 1927) § 8567. The commissioners are appointed by the Governor. This official is elected by the people. 10 Fla. Comp. Gen. Laws Ann. (Skillman, Supp. 1938) § 8567. 11 Ibid. |