EX PARTE EDWARD ALVAREZ, PLAINTIFF IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

Taylor, J.,

(after stating the facts.) This cause being, one of first impression in this court, and involving as it does the law governing the effect of a conditional pardon and its acceptance by the convict, and of a violation of its conditions, and the proper procedure upon a violation “thereof, we have given it exhaustive consideration, and find the law on the subject so concisely and accurately stated at page 595 et seq. of Vol. 24 Am. & Eng. Ency. of Law (2nd ed.) that we cannot do better than to quote what is there said as being the law: “It is settled law that, where a criminal accepts a pardon, he accepts it subject to all its valid conditions and limitations, and will be held' bound to a compliance therewith.”

“Where a conditional pardon has been granted and accepted, and the convict has fulfilled the conditions thereof, the effect of the pardon becomes the same as though it were by its terms full and absolute.”

“Before delivery and acceptance a pardon may be revoked by the officer or body granting it; but if the pardon is not void in its inception, it cannot be revoked for any cause after its delivery and acceptance are complete, for then it has passed beyond the control of the officer or body who granted it, and becomes a valid and operative act, of the benefits of which its recipient can be deprived only in some appropriate legal proceeding.”

“Where a prisoner has accepted a conditional pardon and has been released from imprisonment by virtue there of, 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 as 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 recommitment 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 recommitment upon the terms imposedand we will add, authorize such arrest and recommitment in the manner and ~by or through the official authority as stipulated in the pardon.

“Where a convict has been released under a conditional pardon, his re-arrest and recommitment to his original sentence cannot be had upon the mere order of the Governor (or Board of Pardons) alone, unless such a course is provided hy statute, or by the express terms of the pardon.

“The convict (in the absence of a statute or of express provisions in the. pardon to the contrary,) is entitled to a hearing before some court of general criminal jurisdiction in order that he may show that ‘he has 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 criminal is not entitled to a jury trial as a matter of right, except upon the question whether he is the same person who was convicted.” Such proceeding and enquiry is preferably to be had before the court that originally tried and convicted the 'Criminal, but may properly be had before any court of the ¿State of general criminal jurisdiction.

“In the absence of a statute, and unless the act constituting the violation of a condition in a pardon is in itself a criminal offense, the violation of the condition is not a ground for a prosecution by indictment.”

The proceeding to test the question whether or not there has been a violation of, or noncompliance with, the condition or conditions of a pardon is purely informal. The established practice at the common law and in the American States, in the absence of statutory regulation and in the absence from the pardon itself of express stipulations for that purpose, is for some court of general criminal jurisdiction upon having its attention called, ¡by affidavit or otherwise, to the fact that a pardoned convict has violated, or failed to comply with, the condition or conditions of his pardon, to issue a rule, reciting the original judgment of conviction and sentence, the pardon and its conditions and the alleged violation of, or non-compliance with, the condition or conditions thereof, and requiring the sheriff to arrest the convict and bring him before the court to show cause, if any he can, why the original sentence imposed upon him should not be executed. A copy of such rule should be served upon the convict at the time of bis arrest. When brought before the court upon such rule if the prisoner denies that he is the same person who was convicted, sentenced and pardoned, he is entitled to have a jury summarily empanelled to try such issue, but if his identity is not denied all the other facts and issues can be heard and tried by the Judge alone unless the Judge, solely within his discretion, shall see proper, for his own satisfaction, to submit the facts to a jury for determination. If it be found upon sncb investigation that there' has not been a violation of, or non-compliance with, the condition or conditions of the pardon, or if the convict 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 convict 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 by him.

In the absence from the statutes of Florida of any provision authorizing the State Board of Pardons to ascertain and determine whether or not there has been a violation of, or non-compliance with, the condition or conditions of a pardon, and to order the re-arrest of the convict and the execution upon him of the original sentence, and in the absence from the pardon itself of express stipulations so authorizing such board, it has no authority to enquire into or pass upon the question of a violation of the condition or conditions of such pardon or to order the re-arrest of the convict, or to subject him to the execution of the original sentence imposed, and the order of the Board of Pardons made in this case under the circumstances here, undertaking to adjudge a violation of the conditions of his pardon by the plaintiff in error and revoking such pardon, and ordering the recommitment of the plaintiff in error in execution of his original sentence is a nullity. The return of the sheriff to the writ of habeas corpus, however, sets up and exhibits the original sentence and the conditional pardon as well as the subsequent order of the Board of Pardons revoking same, and alleges that he, the sheriff, detains the plaintiff in error tn custody under and by virtue of the judgment and all of such orders. The conditional pardon granted to the plaintiff in error in. express terms authorizes any sheriff of the State to re-arrest him upon his violating the conditions of the pardon. It became the duty then of the sheriff to arrest the plaintiff in error upon its 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 enquired 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 h.e disposed of. It having been brought to the attention of the sheriff in this case by the order of the Board of Pardons that the plaintiff in error had violated the conditions of his pardon, the sheriff acted within his authority in arresting and detaining him in custody notwithstanding the fact that the order of the Board of Pardons expressly ordering such arrest was, of ítsélf, a nullity, because the terms and stipulations of the pardon itself, by which the plaintiff in error was completely bound, expressly authorized such arrest and detention.

The record before us does not show whether or not the judge below in the habeas corpus proceeding instituted rny inquiry into the truth of the alleged violation by the plaintiff in error of the conditions of his pardon, such inquiry could have been done and should have been done, under the circumstances of the case in the habeas corpus proceeding , and inasmuch as the plaintiff in error has the right to have such inquiry made and determined by the proper authority the judgment of the court below must be reversed and remanded in order that such inquiry may be properly made and passed upon. Inasmuch as it appears from the record in the case that the Judge of the Circuit Court for Bradford county in the Eighth Judicial Circuit is disqualified: to hear or determine the questions involved, by reason of which disqualification the habeas corpus proceedings from which this writ of error was taken, were heard and disposed of by the Judge of the Fourth Judicial Circuit in and for Duval county, it is ordered that the judgment of the court below in this cause be and the same is hereby reversed, and the cause is hereby remanded to the Judge of the Circuit Court of the Fourth Judicial Circuit with directions that in such habeas corpus proceeding he. shall make inquiry into the truth of the alleged violation by the plaintiff 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 plaintiff in error be remanded to custody and that the original sentence imposed upon him 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 such violation he shall be discharged from further custody; and it is further ordered that the plaintiff in error shall be detained in custody or under the conditions of his supersedeas and appearance bond until such inquiry can be made and determined, and that the State Attorney for the Eighth Judicial Circuit shall be notified by the Judge of the Fourth Judicial 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 plaintiff in error be accorded the like privilege of producing witnesses to refute such alleged violation if he can. The cost of this writ of error proceeding to be taxed against the county of Bradford. See the authorities both English and American collated in the notes to Vol. 24 Am. & Eng. Ency. Law (2nd ed.) on pp. 595, et seq,

Hocker and Parkhil, JJ. concur. Shackleford, C. J. and Cockrell and Whitfield, JJ. concur in the opinion.