Opinion
January 29, 1952. Rehearing Denied February 18, 1952.
Appeal from the Circuit Court for Union County, John A.H. Murphree, J.
Ray Sandstrom, Macclenny, for appellant.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
On April 3, 1936, the appellant, Leroy Chastain, and James Bacchus, upon arraignment to an indictment charging each of them with the crime of armed robbery contrary to the laws of the State of Florida, a criminal prosecution then pending in the Circuit Court of Sarasota County, Florida, and each at the time being required to plead to the aforesaid indictment, did then and there each enter a plea of guilty to the crime or offense of armed robbery, as alleged or charged in the indictment. The trial Court thereafter adjudged James Bacchus and Leroy Chastain to be guilty of the offense to which they had each previously entered a plea of guilty, and the trial Court did then and there impose against the said James Bacchus and Leroy Chastain a sentence and judgment of imprisonment in the State Prison for and during a period of thirty years at hard labor.
On April 3, 1936, a commitment based on the aforesaid sentences and judgments issued out of the Circuit Court of Sarasota County, Florida, and the terms thereof commanded the Sheriff of said County to safely deliver Chastain and Bacchus to the Custodian of the State Prison of the State of Florida, with directions that the State Custodian keep and imprison in the State Prison Chastain and Bacchus for the crime of armed robbery to which each had entered a plea of guilty, for the term or period of thirty years, according to the terms and provisions of the sentences and judgments previously entered against each of them by a Court of competent jurisdiction. We are only interested here in the appeal of Leroy Chastain as presented by the record.
The Board of Pardons of the State of Florida, pursuant to Section 12 of Article 4 of the Constitution of Florida, as amended at the General Election of 1896, F.S.A., on the 17th day of December, 1940, granted Leroy Chastain a conditional pardon effective December 17, 1940, and pertinent language thereof is viz.: "* * * it was determined that LeRoy Chastain, who was convicted in the Circuit Court of Sarasota County, at the Spring Term thereof, A.D. 1936, of the offense of Armed Robbery and sentenced therefor to Serve Thirty Years In The State Prison, Should now, upon showing made, be granted a conditional pardon; it being shown to the Board that applicant has rendered exceptional meritorious conduct at the State Prison, cooperating with Prison Officials at all times in a highly efficient manner; and that his opportunities at this time for re-habilitation are good. It was therefore, ordered that the said, LeRoy Chastain be granted a condition pardon, upon conditions that he hereafter lead a sober, peaceable and law-abiding life. This pardon is granted to and accepted by the said LeRoy Chastain upon the express understanding and condition that if anytime hereafter any person shall make complaint before the State Board of Pardons or the Governor of this State, that the said LeRoy Chastain has violated any of the above conditions, the said Board of or the Governor shall have full power and authority, without notice to the said LeRoy Chastain to investigate and inquire into such alleged breach of conditions, and if satisfied, after such investigation, that any of the conditions hereof have been violated, may order the said LeRoy Chastain, arrested by any sheriff or constable and immediately deliver to the State prison authorities, and he shall thereafter suffer such part of said original sentence of said Court as has not already been suffered by him at the date of this pardon."
On July 17, 1941, the Board of Pardons, by an appropriate order, withdrew or revoked the conditional pardon previously granted to Leroy Chastain, and ordered that he be immediately returned to custody at the State Prison and required to serve such part of the sentence of the Court not served at the date of granting the conditional pardon. Pertinent here is the following language of said order: "Whereas, the Board has been officially notified that the said LeRoy Chastain is now in the custody of the Sheriff of Alachua County, Florida, pending trial on a charge of Concealed Weapon; that at the time he was arrested in the town of Micanopy on said charge, Thomas L. Hayes, alias Fred Kellogg, an d ex-convict, was also arrested with him and confessed to the plot of the said LeRoy Chastain, himself, and a third party who escaped prior to their arrest, to rob a store in the town of Micanopy; and that the Sheriff of Alachua County considers LeRoy Chastain a very dangerous character and an habitual law violator, and requests the Board to revoke his condition pardon."
Leroy Chastain was returned to the State Prison, pursuant to the above order of the Board of Pardons and has remained there continuously since, and his imprisonment or detention is based exclusively on the sentence and judgment as entered by the Circuit Court of Sarasota County, which ordered Chastain to serve a period of thirty years in the State Prison at hard labor. On May 31, 1951, Leroy Chastain filed a petition for a writ of habeas corpus in the Circuit Court of Union County, Florida, and contended that the order of the Board of Pardons dated July 17, 1941, for various reasons, was unlawful and that he was being restrained of his liberties and unlawfully detained by the Custodian of the State Prison.
The Board of Pardons, under date of May 29, 1951, after the filing of a petition for writ of habeas corpus and after the writ issued out of the Circuit Court of Union County, Florida, entered the second order of withdrawal or revocation of the conditional pardon as previously entered, and the second order recited that Leroy Chastain did unlawfully carry a concealed weapon, to-wit, a pistol back in 1941, and for this reason there existed sufficient legal cause or grounds for the withdrawal or revocation of the conditional pardon previously issued to Chastain.
It was contended in the lower Court and here that the order of the Board of Pardons dated July 17, 1941, which withdrew or revoked the conditional pardon previously granted, was legally insufficient because: (1) Chastain had never been convicted or found guilty of the violation of any criminal laws of the State of Florida, as recited in the aforesaid revocation order; (2) the order was entered by the Board of Pardons without notice of a hearing or an opportunity to defend against the charge or charges and to adduce testimony to sustain his innocence and to be heard by counsel: (a) that he was implicated in a plot to rob a store at Micanopy; (b) that he was a dangerous character; and (c) that he was a habitual law violator as then reported by the Sheriff of Alachua County, Florida. For these reasons the order of revocation dated July 17, 1941, so entered was invalid, unenforceable and deprived him of fundamental rights vouchsafed by both the Federal and State Constitutions. It was the duty of the Courts to set aside and hold for naught the aforesaid order of revocation and discharge the petitioner from custody.
As to the second order of revocation dated May, 1951, the points were made: (1) that the order was entered after the lower Court issued its writ; (2) that no evidence was adduced before the Board of Pardons to sustain the allegation that Chastain, on July 10, 1941, in Alachua County, Florida, carried a concealed weapon contrary to law; (3) that there was no evidence before the Board to show that Chastain had violated the conditions of his pardon; (4) that although Chastain, for a period of approximately ten years, had been serving his thirty year sentence in the State Prison for armed robbery had never raised the question of the illegality of the first revocation order was not, as a matter of law, estopped now from so doing; (5) the State of Florida had invaded the constitutional rights of Chastain and he was entitled to an order of discharge. The lower Court held against these several contentions but entered an order permitting an appeal here, as provided by statute.
Section 12 of Article 4 of the Constitution of Florida, since its adoption in 1896, has been construed on several occasions. See Ex parte Alvarez v. State, 50 Fla. 24, 39 So. 481, 111 Am.St.Rep. 102, 7 Ann.Cas. 88; State v. Horne, 52 Fla. 125, 42 So. 388, 7 L.R.A., N.S., 719; Stone v. Burch, 114 Fla. 460, 154 So. 128; Wallace v. Chapman, 130 Fla. 67, 177 So. 228, and other cases. The general trend of these cases is to the effect that when a conditional pardon is accepted, the pardonee accepts it subject to all its conditions and limitations and is bound to comply therewith. If the conditions and limitations set out in the conditional pardon are violated by the pardonee, then he may be rearrested and recommitted to the State Prison.
The case on appeal here fails to present the issues that the law authorizes to be raised when a conditional pardon is by an appropriate order revoked by the Board of Pardons. Our decisions on the point at issue were designed to protect the constitutional rights of a pardonee accepting a pardon containing certain conditions and limitations. It is not disputed that the appellant made no effort and took no steps whatsoever, for a period of approximately ten years after the revocation order entered by the Board of Pardons, to assert certain alleged legal rights. The lack of diligence or the failure of the appellant to assert his legal rights, if any, incident to the revocation order entered by the Board for a ten year period, in law, constitutes a waiver of such alleged rights and he cannot now be heard to raise said issues. We fail to find error in the record.
Affirmed.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.