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Understanding the Florida Clemency Process

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Clemency is a process that allows the chief executive officer of a government to set aside a resident’s criminal conviction or penalty. Clemency is sometimes referred to as a “pardon,” although, at least as it applies to Florida law, a pardon is just one type of clemency. The Florida Constitution actually recognizes the following forms of executive clemency:

  • A pardon, which forgives a person’s conviction and sentence. A pardon may be unconditional or carry certain conditions.
  • A commutation, which reduces the severity of a convicted defendant’s sentence but does not affect the underlying conviction or restore any lost civil rights.
  • A remission, which suspends, reduces, or otherwise removes any fines or asset forfeitures attached to a criminal sentence.
  • A restoration of civil rights, which returns any civil rights lost by the recipient due to a prior conviction, such as the right to vote, except for the right to possess a firearm.

The governor and the members of the Florida Cabinet–a three-member body composed of the state’s Attorney General, Commissioner of Agriculture, and Chief Financial Officer–review and decide any applications for clemency. While the governor has the unilateral power to deny clemency for any reason, he must have the approval of at least 2 of the 3 Cabinet members to grant clemency.

First District: Applicant Entitled to Free Copies of Documents Needed to Complete Clemency Application

The Florida First District Court of Appeal recently issued a notable decision that affects the rights of individuals applying for clemency. The issue before the Court in Mobley v. Fussell was whether or not a county clerk had the right to charge a clemency applicant for access to his criminal records.

Some additional background is helpful. When applying for clemency, a person must include a certified copy of the “charging instrument” related to their conviction. These records are held by the court clerk in each county. Normally, the clerk may charge a fee for making such copies. But under Florida law, “In the event any applicant for executive clemency is required to supply a certified copy … said document shall be furnished by the clerk of court to the applicant free of charge and without delay.”

The Mobley case arose because the Duval County clerk took the position that it only had to provide a free copy of a person’s records after they completed and signed their application for clemency. An applicant objected to this, pointing out he needed the records in question to complete his application. The applicant asked a Circuit Court judge to order the clerk to provide the necessary copies for free. When the judge declined to do so, the applicant appealed to the First District.

The First District sided with the applicant. It interpreted the law to mean that a person who attests that he is “applying for or has applied for clemency” is entitled to free copies of the records necessary to complete their application. To require they complete the application first would essentially create a “chicken and egg” dilemma.

Contact Florida Criminal Defense Lawyer Jose Baez Today

The First District noted that its opinion conflicts with a prior decision of another Florida appeals court. So this legal question may need to be settled by the state Supreme Court. In the meantime, if you have additional questions about the clemency process and need to speak with an experienced Orlando criminal attorney, contact the Baez Law Firm today to schedule a consultation.

 

Resource:

CLEMENCY/PARDONS

https://www.flsenate.gov/Laws/Statutes/2011/940.04

https://www.baezlawfirm.com/do-the-police-need-a-warrant-to-search-your-business-website/

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