In setting the test for reinstatement to the bar, this Court stated that it would look at the life and conduct of the attorney prior to disbarment, and the reasons for the disbarment, and would consider whether the attorney's life and conduct since that time satisfy the Court that, if restored to the bar, he will be upright, honorable, and honest in his dealings. In 1958, this Court effectively reversed its holding in Hogan when it affirmed the decision of the Court of Appeals in Mason v. State, 39 Ala. App. 1, 103 So.2d 337 (1956), aff'd, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959). In Mason, the defendant was convicted of owning or possessing a pistol after his previous conviction of second degree murder, for which he had been pardoned.
" Mason v. State, 39 Ala. App. 1, 5, 103 So.2d 337, 341 (1956), affirmed, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959). III.
On certiorari review, this Court has determined that the April 28, 2000, opinion released by the Court of Criminal Appeals correctly identified and applied the controlling precedents. The judgment of the trial court and the opinion of the Court of Criminal Appeals on rehearing relied on Mason v. State, 39 Ala. App. 1, 103 So.2d 337 (1956), aff'd, 267 Ala. 507, 103 So.2d 341 (1958), cert.denied, 358 U.S. 934 (1959), which was overruled by State ex rel. Sokira v. Burr, 580 So.2d 1340 (Ala. 1991), and on Johnson v. State, 421 So.2d 1306 (Ala.Crim.App. 1982), which was based solely on the later-rejected rationale of Mason. In its initial opinion, written by Presiding Judge McMillan, the Court of Criminal Appeals provided the following well-reasoned and clearly written analysis of the effect of a pardon upon the use of the pardoned convictions for sentence-enhancement purposes:
"We are, therefore, of the opinion the State Board had the authority to issue the order restoring citizenship rights to the contestee [who had been convicted of a federal offense] and that the argument to the contrary is without merit." While, as is discussed later in this opinion, the statement of the law made in Hartwell concerning the effect of a pardon as to the restoration of specific civil and political rights, e.g., the right to hold public office, was, in effect, overruled by this Court's decision in Mason v. State, 267 Ala. 507, 103 So.2d 341 (1958), affirming 39 Ala. App. 1, 103 So.2d 337, the decision as to the above point of law was not overruled. We continue to hold to that statement of the law.
The trial court summarily denied the petition, finding that the appellant's claims lacked merit. Citing Mason v. State, 39 Ala. App. 1, 103 So.2d 337 (1956), aff'd, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934 (1959), and Johnson v. State, 421 So.2d 1306 (Ala.Crim.App. 1982), the trial court held that a pardon does not eliminate a conviction and that the convictions as to what the appellant had been pardoned had been properly used to enhance his sentence as a habitual offender. The trial court also held that the issues raised in the petition were precluded because the petition was successive and because those issues could have been, but were not, raised at trial or on appeal.
" The Alabama Supreme Court affirmed. 39 Ala. App. 1, 103 So.2d 337 (1956), aff'd 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959).Mason v. State, 103 So.2d at 341.
At the time the quo warranto action was filed, Sumbry had qualified to run for a third term, which, had he won, would have begun in October 1989.Randolph County quoted from and relied on Mason v. State, 39 Ala. App. 1, 103 So.2d 337 (1956), affirmed, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959), which was decided after Hogan. Randolph County stated: "The general effect of a pardon was exhaustively discussed in Mason v. State, 39 Ala. App. 1, 103 So.2d 337 (1956), affirmed, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959).
Moreover, even if it were a full pardon it would not, in our judgment, preclude those convictions from being used to enhance appellant's punishment. See Mason v. State, 39 Ala. App. 1, 103 So.2d 337 (1956), affirmed, 267 Ala. 507, 103 So.2d 341 (1958). In Mason, the sole question raised was whether the appellant's possession of a pistol, after conviction for a crime of violence was illegal in view of the pardon that Mason had been granted.
Prior to January 29, 1979, Alabama's courts had made quite clear that this code section cannot be obviated or avoided by any pardon or restoration of political and civil rights no matter how broad its terms. See Mason v. State, 39 Ala. App. 1, 103 So.2d 337 (1956), aff'd 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959). Furthermore, the crime of manslaughter, for which Swanson had been convicted in 1970, is a "crime of violence" under the law of Alabama, and if manslaughter were not a "crime of violence", Swanson's subsequent conviction of larceny in 1974 qualifies as a "crime of violence" under the law of Alabama.
The trial judge's ruling was based upon the Court of Criminal Appeals' holding in Johnson v. State, 620 So.2d 661 (Ala.Crim.App. 1991). In Johnson, the Court of Criminal Appeals cited Mason v. State, 39 Ala. App. 1, 103 So.2d 337 (1956), as supporting the proposition that a pardon does not destroy the effect of ยง 13A-11-72. The holding in Mason has now been specifically overruled by State ex rel. Sokira v. Burr, 580 So.2d 1340, 1344-45 (Ala. 1991).