Vandewalle, Gerald W

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North Dakota Law Review Volume 32 Number 3 Article 7 1956 Criminal Law - Habitual Offender Statute - Effect of Unconditional Pardon on Prior Conviction Gerald W. Vandewalle Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Vandewalle, Gerald W. (1956) "Criminal Law - Habitual Offender Statute - Effect of Unconditional Pardon on Prior Conviction," North Dakota Law Review: Vol. 32 : No. 3 , Article 7. Available at: https://commons.und.edu/ndlr/vol32/iss3/7 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESCRIMINAL LAW-HABITUAL OFFENDER STATUTE-EFFECT OF UNCONDITIONALPARDON ON PRIOR CoNvICTsON.-Defendant was convicted of breaking andentering and was sentenced to one year imprisonment. Judgment was set asideand defendant resentenced to twenty years imprisonment under an habitualoffender statute. On appeal, the Supreme Court of Florida reversed thejudgment and held that since the offender had-received a full and uncondi-tional pardon from a prior felony conviction, it could not be counted as aprior conviction under the provisions of the Florida habitual offender statute.,,Fields v. State, 85 So. 2d 609 (Fla. 1956).It appears that a majority of courts hold that a pardon from: a prior con-viction does not exempt an accused from increased punishment under habitualoffender statutes.2 The reasoning of these courts is based on the idea thatthe increased sentence for a second, third or fourth conviction is not addedpunishment for the prior crime or crimes, but rather, the prior convictionis only an element in determining the amount of increased punishment forthe present offense.3 These courts hold, in effect, that an unconditional pardondoes not remove all remaining consequences of a prior conviction.4The minority view, holding that an unconditional pardon removes all suchconsequences, is shared by Florida and a few other states. 5 One reason forthe division of authority is the judicial construction of the word "pardon"'!The minority jurisdictions appear to follow an early decision of the UnitedStates Supreme Court, which viewed a pardon as a removal of all guilt,"...so that in the eyes of the law the offender is as innocent as if he had nevercommitted the offense."It seems that the holdings of the minority jurisdictions are predicated uponan intent to prevent increased subsequent sentences where the prior convic-tion has been removed by a pardon for innocences Therefore, no rational rulestating the effect of a pardon can be made without distinguishing clearlybetween pardons granted for innocence and pardons granted for other reasons.Where a pardon was granted because of after-discovered innocence, it isarguable that since the party was mistakenly convicted he should not sufferhuther consequences from that conviction. Normally, if a man is innocent ofthe offense charged, his remedy is found in the courts.' 0 Occasionally, however,use of the executive pardon may be necessary to exonerate one who was1. Fla Statutes §775.09 (1953).2. State v. Webb, 36 N.D. 235, 244, 162 N.W. 358, 360 (1917) (dictum); Deanv. Skeen, 137 W. Va. 105, 70 S.E.2d 256, 258, (1952) (dictum).3. People v. Brophy, 287 N.Y. 132, 38 N.E.2d 468 (1941); People v. Carlesi 233U.S. 51, 34 S. Ct. 576 (1941) (dictum); State v. Webb, 36 N.D. 235, 244, 162 N.W. 358360 (1917) (dictum).4. People V. Biggs, 9 Cal.2d 508, 71 P.2d 214 (1937); Dean v. Skeen, 137 W.Va.105, 70 S.E.2d 256 (1952).5. Kelley v. State, 204 Ind. 612, 85 N.E.2d 453 (1933); State v. Lee, 171 La. 744,132 So. 219 (1931).6. Dean v. Skeen, 137 W. Va. 105, 70 S.E.2d 256, 259 (1952) (dictum).7. Ex parte Garland, 71 U.S. (4 Wall) 33 (1866). But see Williston, Does a PardonBlot Out Guilt?, 28 Harv. L. Rev. 647 (1915).8. Williston, 28 Harv. L. Rev. 647, 661 ("The fact that a pardon may infrequentlybe the only redress whicIN is open to an innocent man operates as an injustice to theinnocent, but, as has been said, probably exerts a retroactive influence towards continuanceof the notion that a pardon makes a convict into a man of good character.").9. 88 U. Pa. L. Rev. 177 (1939).10. E.g., Fla. Statutes § 924.01 (1953); N.D. Rev. Code J 29-2402 (Supp. 1953).262 NORTH DAKOTA LAW REVIEWwrongfully convicted. t At least two states have expressly provided by statutethai preyious conviction will not be considered if pardon was granted forreasons of innocence t2It is unjust to give a pardon granted for innocence the same limitedapplication as i now generally given to pardons granted for other reasons.There is no logical reason why pardons granted for innocence should notconclusively prevent consideration of the pardoned conviction in an attemptto apply an habitual offender statute. Recognizing that the executive andjudicial- power of a state should be separated as much as possible, exerciseof the pardoning power for reasons of innocence may be criticizable as anexecutive review of a judicial decision.13 The principle of separation of powerscould be better adhered to by instituting an extraordinary judicial remedywhich would only lie whenever such evidence is discovered as would pre-sefitly result in a pardon for innocence. If such a remedy were available andmade exclusive, all subsequently granted pardons would be granted for reasonsother than innocence. Where that is true, there appears to be no valid reasonwhy pardoned convictions should be considered in applying habitual offenderstatutes.* It is submitted, that if the pardon in the instant case was grantedsolely on the basis of innocence, the decision of the court is correct.GERALD W. VANDEWALLEEVIDENCE-PRIVILEGED COMMUNICATION BETWEEN ATTORNEY AND CLIENT-ATTORNEY PRAM TING IN STATE OTHER THAN ONE WHERE LICENSED.-Ina discovery proceeding,' plaintiff moved under Rule 34, Federal Rules ofCivil Procedure2 for an orjier requiring the defendant to produce variousdocuments relating to prior patent litigation. The defendant excepted, con-tending that certain of the documents were privileged as communicationswith its attorney. The plaintiff contested the privileged status of the docu-ments on the grounds that defendant's counsel was not licensed to practicein New York where the communications and litigation took place. It was con-ceded that counsel was a merisber of the District of Columbia and PennsylvaniaBars. The court held that a lawyer regularly employed by a corporation aslegal counsel who actively participates in litigation qualifies as an "attorney"within the rule of privileged communication between attorney and client,though he is not licensed to practice in the state. Georgia-Pacific PlywoodCo. v. U.S. Plywood Corp., 18 F.R.D. 463 (S.D. N.Y. 1956).11. 28 Harv. L. Rev. 647, 659 (1915).12. Iowa Code § 747 (1950); N. Y. Code of Crim.' Proc. § 697 (1953).13. The Federalist No. 47 at 373 (Hamilton ed. 1885) (Madison).1. See: Sundeland; Discovery Before Trial Under the New Federal Rules. 15 Tenn. L.Rev. 737 (1939).2. Fed. R. Civ. P. 34, "Discovery And Production of Documents And Things ForInspection, Copying, or Photographing. Upon motion of any party showing good causetherefore and upon notice to all other parties, and subject to the provisions of Rule 30 (b),the court in which an action is pending may (1) order any party to produce and permitthe inspection and copying or photographing, by or on behalf of the moving party, of anydesignated documents, papers, book abcounts, letters, photographs, objects or tangible things,not privileged, which constitute or contain evidence relating to any of the matters withinthe scope of the examination permitted by Rule 26 (b) and which are in his possession,Custody, or control; . . .The order shall specify the time, place, and manner of makingthe inspection and taking the copies and photographs and may prescribe such terms andconditions as are just." (Italics added)

Criminal Law - Habitual Offender Statute - Effect of Unconditional Pardon on Prior Conviction

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Criminal Law - Habitual Offender Statute - Effect of Unconditional Pardon on Prior Conviction

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