Per Curiam
(after statmg the facts) : 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 re-arrested 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.
Sometimes conditional pardons expressly provide that, upon violation of the condition, the offender shall be liable to summary arrest and re-commitment for the unexpired portion of his original sentence. Such stipulations upon acceptance of the pardon become binding upon the convict and authorize his re-arrest and re-commitment in the manner and by or through- the official authority as stipulated in the pardon. Alvarez v. State, 50 Fla. 24, 39 South. Rep. 481; 24 Am. & Eng. Ency. Law (2d ed). 595; 6 Current Law, 876.
The questions presented by counsel are whether the [134]*134conditional pardon provides for the arrest and re-imprisonment of the petitioner after the expiration of the period of time mentioned in the sentence of imprisonment; and if it does so provide, whether such a provision is legal and enforceable.
Section 2106 of the Revised Statutes of 1892 provides that “whoever commits an assault on another with intent to commit any felony punishable with death or imprison ment for life, shall be punished by imprisonment in the State Prison not exceeding twenty years.” The commission of murder in the first degree is punishable by death, or by imprisonment for life upon a recommendation of a majority of the trial jury in their verdict; the commission of murder in the second degree is punishable by imprisonment for life; and the commission of murder in the third degree is punishable by imprisonment not exceeding twenty years. Section 2380 and 2921 Rev. Stats. of 1892.
Section 2923 of the Revised Statutes provides that “in all cases the court shall award the sentence and shall fix the punishment or penalty prescribed by law.” Section 2939 Revised Statutes provides that “when punishment by imprisonment in the State Prison is awarded against any convict, the form of the sentence shall be that he be imprisoned by confinement at hard labor.” The judgment and sentence of the court pronounced against the petitioner on April 22, 1898, was as follows: “It is considered by the court that you, Peter Horne, for your said offense of assault with intent to murder, of which you now stand convicted be imprisoned in the State Prison at hard labor for the period of five years to begin and run from this day.”
Under the statute above quoted, that in all eases the [135]*135court shall award the sentence and shall fix the punishment or penalty prescribed by law, the effective part of the sentence awarded- and punishment fixed in the sentence set out above is that the petitioner “be imprisoned in the State Prison at hard labor. for the period of five years.” The period or cycle of time during which he wouid be required to be imprisoned for the length of time fixed by the court is to be determined by law. The power of the court extends to fixing the punishment, that is the length of time within the given maximum the peitioner shall be imprisoned. The law does not contemplate that the court in fixing the punishment shall also fix the beginning and ending 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 portion of the sentence is the punislvment, including the hind 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 the 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. Hollon v. Hopkins, 21 Kan. 638; Dolan’s Case, 101 Mass. 219; State v. Cockerham, 2 Ired. (N. C.) 204; Ex-parte Bell, 56 Miss. 282; In re Edwards, 43 N. J. L. 555. While as a general rule the imprisonment begins with the sentence, and the sentence is subject to existing valid laws, the imprisonment may be suspended by appellate or other judicial proceedings dr by reprieve or otherwise; and the period during which the imprisonment [136]*136may be suffered may be interrupted by escape or be changed by the pardoning power so long as the change does not increase the penalty imposed by the sentence or is not otherwise illegal. See Fite v. State ex rel. Snider, 114 Tenn. 646, 88 S. W. Rep. 941.
The condition contained in the pardon refers to the'sentence to be affected by it in its legal and proper aspect without reference to its words.
The terms of the pardon provide “that if the said Horne shall break the peace, take a drink of intoxicating liquor or other beverage, or become intoxicated, then this conditional pardon shall be null and void, and 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.” This provision should be considered with the previous portion of the pardon in which the word hereafter is used in expressing the conditions on which the pardon was asked; and so considered the observance of the condition is not limited to the term of the sentence as in Arthur v. Craig, 48 Iowa 264, S. C. 30 Am. Rep. 395. The provision authorizing any sheriff of the State to “arrest him and return him to the penitentiary to serve out the remainder of his term,” has reference to the material terms of the sentence of the court, viz: To the length of imprisonment fixed by the sentence, and not to the particular period of time mentioned in the sentence during which the sentence was to be executed, which latter we have seen is immaterial and not really an effective part of the sentence.
With these principles in view the pardon granted by the pardoning power and accepted by the petitioner under which he secured his release clearly contemplates that the breach of the conditions thereof at any time would render [137]*137the pardon void and subject tbe petitioner to re-imprisonment during tbe remainder of tbe time he bad not been actually imprisoned under tbe sentence without reference to tbe expiration of tbe particular period of time mentioned in tbe sentence.' This being ascertained to be the purport and effect of tbe terms of the conditional pardon it must now be determined if tbe condition is binding upon tbe petitioner after tbe expiration of five years from tbe date of bis sentence to five years’ imprisonment.
Free access — add to your briefcase to read the full text and ask questions with AI
Per Curiam
(after statmg the facts) : 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 re-arrested 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.
Sometimes conditional pardons expressly provide that, upon violation of the condition, the offender shall be liable to summary arrest and re-commitment for the unexpired portion of his original sentence. Such stipulations upon acceptance of the pardon become binding upon the convict and authorize his re-arrest and re-commitment in the manner and by or through- the official authority as stipulated in the pardon. Alvarez v. State, 50 Fla. 24, 39 South. Rep. 481; 24 Am. & Eng. Ency. Law (2d ed). 595; 6 Current Law, 876.
The questions presented by counsel are whether the [134]*134conditional pardon provides for the arrest and re-imprisonment of the petitioner after the expiration of the period of time mentioned in the sentence of imprisonment; and if it does so provide, whether such a provision is legal and enforceable.
Section 2106 of the Revised Statutes of 1892 provides that “whoever commits an assault on another with intent to commit any felony punishable with death or imprison ment for life, shall be punished by imprisonment in the State Prison not exceeding twenty years.” The commission of murder in the first degree is punishable by death, or by imprisonment for life upon a recommendation of a majority of the trial jury in their verdict; the commission of murder in the second degree is punishable by imprisonment for life; and the commission of murder in the third degree is punishable by imprisonment not exceeding twenty years. Section 2380 and 2921 Rev. Stats. of 1892.
Section 2923 of the Revised Statutes provides that “in all cases the court shall award the sentence and shall fix the punishment or penalty prescribed by law.” Section 2939 Revised Statutes provides that “when punishment by imprisonment in the State Prison is awarded against any convict, the form of the sentence shall be that he be imprisoned by confinement at hard labor.” The judgment and sentence of the court pronounced against the petitioner on April 22, 1898, was as follows: “It is considered by the court that you, Peter Horne, for your said offense of assault with intent to murder, of which you now stand convicted be imprisoned in the State Prison at hard labor for the period of five years to begin and run from this day.”
Under the statute above quoted, that in all eases the [135]*135court shall award the sentence and shall fix the punishment or penalty prescribed by law, the effective part of the sentence awarded- and punishment fixed in the sentence set out above is that the petitioner “be imprisoned in the State Prison at hard labor. for the period of five years.” The period or cycle of time during which he wouid be required to be imprisoned for the length of time fixed by the court is to be determined by law. The power of the court extends to fixing the punishment, that is the length of time within the given maximum the peitioner shall be imprisoned. The law does not contemplate that the court in fixing the punishment shall also fix the beginning and ending 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 portion of the sentence is the punislvment, including the hind 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 the 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. Hollon v. Hopkins, 21 Kan. 638; Dolan’s Case, 101 Mass. 219; State v. Cockerham, 2 Ired. (N. C.) 204; Ex-parte Bell, 56 Miss. 282; In re Edwards, 43 N. J. L. 555. While as a general rule the imprisonment begins with the sentence, and the sentence is subject to existing valid laws, the imprisonment may be suspended by appellate or other judicial proceedings dr by reprieve or otherwise; and the period during which the imprisonment [136]*136may be suffered may be interrupted by escape or be changed by the pardoning power so long as the change does not increase the penalty imposed by the sentence or is not otherwise illegal. See Fite v. State ex rel. Snider, 114 Tenn. 646, 88 S. W. Rep. 941.
The condition contained in the pardon refers to the'sentence to be affected by it in its legal and proper aspect without reference to its words.
The terms of the pardon provide “that if the said Horne shall break the peace, take a drink of intoxicating liquor or other beverage, or become intoxicated, then this conditional pardon shall be null and void, and 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.” This provision should be considered with the previous portion of the pardon in which the word hereafter is used in expressing the conditions on which the pardon was asked; and so considered the observance of the condition is not limited to the term of the sentence as in Arthur v. Craig, 48 Iowa 264, S. C. 30 Am. Rep. 395. The provision authorizing any sheriff of the State to “arrest him and return him to the penitentiary to serve out the remainder of his term,” has reference to the material terms of the sentence of the court, viz: To the length of imprisonment fixed by the sentence, and not to the particular period of time mentioned in the sentence during which the sentence was to be executed, which latter we have seen is immaterial and not really an effective part of the sentence.
With these principles in view the pardon granted by the pardoning power and accepted by the petitioner under which he secured his release clearly contemplates that the breach of the conditions thereof at any time would render [137]*137the pardon void and subject tbe petitioner to re-imprisonment during tbe remainder of tbe time he bad not been actually imprisoned under tbe sentence without reference to tbe expiration of tbe particular period of time mentioned in tbe sentence.' This being ascertained to be the purport and effect of tbe terms of the conditional pardon it must now be determined if tbe condition is binding upon tbe petitioner after tbe expiration of five years from tbe date of bis sentence to five years’ imprisonment.
Section 12 of Article 4 of the Constitution as amended in 1895, reads as follows: “The Governor, Secretary of State, Comptroller, Attorney General, and Commissioner of Agriculture, or a major part of them, of whom tbe Governor shall be one, may, upon such conditions and with such limitations and restrictions as they may deem proper, remit fines and forfeitures, commute punishment and 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.” All tbe authorities agree- that under a constitutional provision like this tbe 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 that tbe 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. Ex parte Hawkins, 61 Ark. 321, 33 S. W. Rep. 106; State v. Smith, 1 Bailey’s Law (S. C.) 283, S. C. 19 Am. Dec. 679; Arthur v. Craig, 48 Iowa 264; People v. Potter, 1 Parker’s Cr. Rep. (N. Y.) 47; I Edmonds’ Select Cases 235; Fravell’s Case, 8 Watts and Sergeant’s 197; Lee v. Murphy, 22 [138]*138Gratt. (Va.) 789; In re Conditional Discharge of Convicts, 73 Vt. 414, 51 Atl. Rep. 10.
The condition of the pardon in this case that requires re-imprisonment for the remainder of 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, cannot be said to be immoral or to be impossible of performance during the life of the petitioner, nor can it be 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 its sentence. The case of State ex rel. Davis v. Hunter, 124 Iowa, 569, 100 N. W. Rep. 510, does not conflict with this rule, as in that case a condition imposed was held to be illegal. 4 Current Law, 872.
If the particular period of time fixed by the court within which the execution of the sentence of imprisonment was to be fully performed or suffered, is extended, or held in abeyance, or postponed, the time or duration of imprisonment is not thereby increased; and the interruption of the execution of the sentence during the time the petitioner enjoyed his liberty under the conditional pardon was secured by him by his acceptance of the conditional pardon and the petitioner cannot complain of it.
If the condition of the pardon upon which the petitioner secured his release from imprisonment has been violated by him the pardon is void and the petitioner may be arrested and compelled to undergo so much of the original sentence a® he had not suffered at the time of his release. [139]*139Alvarez v. State, 50 Fla. 24, 39 South. Rep. 481; State v. Barnes, 32 S. C. 14, 10 S. E. Rep. 611; 12 Cyc. 968; People v. Potter, 1 Parker’s Cr. Rep. (N. Y.) 47; In re Conditional Discharge of Convicts, 73 Vt. 414, 51 Atl. Rep. 10; Arthur v. Craig, supra; Fuller v. State, 122 Ala. 32, 26 South. Rep. 146, S. C. 45 L. R. A. 502; State v. Chancellor, 1 Strobhart’s Law (S.C.) 347, S. C. 47 Am. Dec. 557; Ex parte Marks, 64 Cal. 29, 28 Pac. Rep. 109.
There is undoubted wisdom in the policy of conferring upon responsible constitutional officers the power to grant conditional pardons by which persons convicted of crime may be encouraged and prompted to again become useful citizens. Should the opportunity thereby afforded a convict to reform be not appreciated and the restraining and salutary conditions of the pardon be violated at any time during the convict’s life, or during the time fixed by the pardon for their observance, the pardon becomes void and there is both punishment for the lapse of conduct an! protection, to society in the exercise of the power given by law to enforce the unsatisfied portion of the original sentence.
The defendant in error accepted the conditional pardon, thereby securing his release from imprisonment, and he is bound by its legal conditions and limitations. The provisions of the pardon are in effect that if at any time during his life the defendant in error shall fail to observe its conditions, the pardon shall be null and void and he shall be arrested to serve out the remainder of his sentence of imprisonment that he has not already actually suffered. The violation at any time of the conditions of the pardon renders it by its terms null and void and the status of the defendant in error is as though he-had never received the conditional pardon. If, Svhen the conditions [140]*140of the pardon are violated, a portion of the quantum of imprisonment fixed by the sentence has not been suffered or served, the party should be returned to serve the remainedr of his time of imprisonment, as stipulated in the terms of the pardon; and, besides this, the pardon, by the breach of its conditions, is 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 the time for the observance of its condition®, but when the conditions are violated the pardon becomes void in law and the party is subject to the unsatisfied portion of the sentence as though no pardon had been granted.
When a convict has been released upon a conditional pardon, his re-arrest and re-commitment to his original sentence cannot be had upon the mere order of the Governor alone, unless such a course is provided by statute, or by the empress terms of the pardon. The petitioner (in the absence of statute or of express provisions in the pardon to the contrary) is entitled to a hearing before the court having jurisdiction of the writ under which he is held in order that he may show that he as performed the condition of the pardon, or that he has a legal excuse for not having done so, or that he is 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 petitioner is not entitled to a jury trial as a matter of right, except upon the question wheher he is the same person who was convicted. If it be found upon such investigation that there has not been a violation of, or non-compliance with, the condition or conditions of [141]*141the pardon, or if the petitioner shall show to the satisfaction of the court some valid reason or excuse for such violation, or non-compliance, he should be discharged from custody; but if the violation of, or non-compliance with, the condition or conditions of the pardon be shown to the satisfaction of the court, without any legal reason or excuse therefor, the petitioner should be remanded to custody and ordered to have the original sentence imposed upon him duly executed, or so much thereof as has not been already suffered. The conditional pardon granted to t'he defendant in error in express terms authorizes any sheriff of the State to arrest him upon his violating the conditions of the pardon. It became the duty then of the sheriff to arrest the defendant in error upon it being made known to him from any responsible source that he had violated, or was violating, the conditions of. his pardon, and to detain 'him in custody until such alleged violation could be inquired into and determined in the proper manner by the proper authority, and to bring such alleged violation promptly to the attention of some court of general criminal jurisdiction to be disposed of. It having been brought to the attention of the sheriff in this case by the executive order that the defendant in error had violatetd the conditions of his pardon, the sheriff acted within his authority in arresting and detaining him in custody, notwithstanding the fact that the executive order expressly ordering the arrest was of itself a nullity, because such order was not authorized by the pardon or by the statute. The terms and stipulations of the pardon itself, by which the defendant in error was completely bound, expressly authorizes such arrest and detention, though they did not authorize the executive order. Alvarez v. State, 50 Fla. 24, 39 South. Rep. 481.
[142]*142It appearing that the arrest of tthe defendant in error was warranted under the conditions of the pardon by which he secured his release from imprisonment, and that t'he order of the court discharging him from custody is erroneous, it is ordered that the judgment of the court below in this cause be and the same is hereby reversed at the cost of the defendant in error, and the cause is remanded with directions that in the habeas corpus proceedings the court to make inquiry into the truth of the alleged violation by the defendant in error of the conditions of his pardon in the manner herein pointed out, and if such alleged violation of the conditions of such pardon shall be therein established to his satisfaction, that then the defendant in error be remanded to custody, and that the remainder of the original sentence imposed upon him, but not suffered, shall be fully executed; but if the alleged violations of the conditions of such pardon shall not be established, or if there be shown any satisfactory legal excuse for suc'h violation he shall be discharged from further custody; and it is further ordered that the State Attorney for the Second Judicial Circuit shall be notified by the Judge of said Circuit of the time and place when and where he will hear and determine the matter, and that he be given an opportunity to produce witnesses to establish, if he can, the truth of the alleged violation of the conditions of the pardon, and that the defendant in error be accorded the like privilege of producing witnesses to refute such alleged violation, if he can. Alvarez v. State, 50 Fla. 24, 39 South. Rep. 481.
An order will be entered accordingly.
Shackleford, C. J., Taylor, Cockrell, Hocker, Whitfield and Parkhill, JJ., concur.