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State v. Clifton3/4/1997
l.'" Brophy, 287 N.E.2d at 469-70 (quoting McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 312, 45 L. Ed. 542, 21 S. Ct. 389 (1901)); Carlesi v. People of State of New York, 233 U.S. 51, 58, 58 L. Ed 843, 34 S. Ct. 576 (1914); see United States v. Salas, 387 F.2d 121, 122 (2nd Cir. 1967). Another reason supporting this view is that the "ambit of the pardons statute must be confined to a restoration of civil rights; it cannot have the effect of eliminating consideration of a prior conviction in a subsequent judicial proceeding." 403 N.W.2d at 330. This logic raises serious concerns over the separation of powers of the judiciary and the executive branches of government.
In North Carolina a governor may issue two types of pardons: A pardon of innocence, a full pardon; and a pardon of forgiveness, a conditional pardon. Although N.C. CONST. art. III, § 5(6) provides the governor with the exclusive prerogative to issue pardons, G.S. 147-24 (1993) requires the governor to examine violations of a conditional pardon and to revoke the conditional pardon once the governor has determined that the conditions of the pardon have been violated. See State v. Lewis, 226 N.C. 249, 37 S.E.2d 691 (1946). A conditional pardon can be revoked only by the governor and only after the governor has performed his administrative duty of evaluating any violation of the conditions of the pardon. Here by taking judicial notice of the pardon of forgiveness and by finding that defendant's prior conviction constituted an aggravating factor, the trial court infringed upon the prerogatives of the governor. The reasoning that an increased punishment for the present offense due to a prior pardoned conviction is not punishment for the prior pardoned offense is a legal fiction that conflicts with logic and the administrative duties of the governor.
We hold that a pardoned prior conviction may not be considered as an aggravating factor during sentencing absent revocation of the pardon by the governor. Accordingly, we conclude that the trial court erred in taking judicial notice of defendant's prior conviction for purposes of enhancing the sentence.
No error in trial; remanded for resentencing.
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