TITLE FIVE — EXPUNGEMENT PROCEEDINGS
Rule 38.1. Clemency; Restoration of Rights
The Clemency Power. Except in cases of treason and in cases where impeachment results in conviction, the Governor may, by decree filed with the Secretary of State, suspend the collection of fines and forfeitures, grant full or conditional pardons, restore civil rights, and commute punishment, as 6 R. Stat. § 131.609 provides.
Treason. The Governor has power to grant reprieves, but not to pardon, in treason, until after the end of the next session of the Senate, as Const. art. IV, § 1 provides. The exception stated in 6 R. Stat. § 131.609 withdraws treason from the statutory clemency power; it does not and cannot withdraw the constitutional power of reprieve, which is unaffected by statute.
Impeachment. In cases of impeachment the Governor shall not grant a reprieve or a pardon, and there shall be no remission or mitigation of punishment but by act of legislation, as Const. art. IV, § 1 provides. Judgment in a case of impeachment extends no further than to removal from office and disqualification, and the person convicted remains liable to indictment, trial, judgment, and punishment according to law, as Const. art. VI, § 5 provides.
Legislative Power Excluded. No person shall be declared guilty of treason or felony by the Legislature, nor shall a sentence upon conviction for felony be commuted, remitted, or mitigated by the Legislature, as Const. art. VI, § 6 provides.
Clemency Is Not Expungement. Executive clemency shall not be interpreted to act as the expungement of a criminal offense, as 6 R. Stat. § 131.609(a) provides. A person who has received clemency and who seeks the removal of a record shall petition under Rule 36. Conversely, an expungement is not clemency and restores no right.
Application.
Where a person seeks to apply for executive clemency, that person shall request an application from the Justice Department’s pardon attorney, as 6 R. Stat. § 131.610 requires. The Pardon Attorney’s Office, headed by an Assistant Attorney General, receives and refers applications for clemency to the Governor, as 2 R. Stat. § 122.101 provides.
The application may require the submission of a copy of the indictment or information, a copy of the judgment, and that the applicant transmit notice to the Clerk of the Superior Court of the application for clemency.
The Court Has No Jurisdiction Over Clemency.
Clemency is an executive act. No court shall grant, deny, condition, review, compel, or recommend clemency, and no petition, motion, or application for clemency shall be filed in any court.
A notice transmitted under Rule 38.1(6)(c) is a notice and not a motion. The clerk shall docket it. The court shall take no action upon it and shall enter no order upon it.
The pendency of an application for clemency does not stay any sentence, does not toll any period prescribed by these rules or by statute, does not affect the running of a period imposed under 6 R. Stat. § 131.312, and does not suspend, continue, or otherwise affect any proceeding.
Restoration of Rights. Any person who has been convicted or arrested may be entitled to the complete restoration of all the rights of citizenship enjoyed by that person before conviction upon the transmission of executive clemency, unless otherwise specified by statute, as 6 R. Stat. § 131.611 provides.
Civil Service Excepted. No person who has been convicted of a criminal offense and who is a recipient of executive clemency shall have the right to employment within the civil service restored, except where such person successfully has such record expunged by the courts, as 6 R. Stat. § 131.612 provides. Restoration of the right to civil-service employment therefore requires both executive clemency and an expungement granted under Rule 38.
Fugitive Status Not Relieved. Clemency does not relieve a person of the status of a fugitive from justice or of the penalties attaching to that status under 6 R. Stat. § 131.508. Relief from fugitive status is obtained only as Rule 33(11) provides.
Effect Upon the Records of the Court.
A decree of clemency filed with the Secretary of State may be transmitted to the Clerk of the Superior Court and docketed in the criminal case as a notice.
The court shall not alter, vacate, amend, or annotate the judgment. The judgment stands as entered, and the decree operates upon the punishment and upon the rights of the person, not upon the record of the court.
Where punishment is commuted or the collection of a fine or forfeiture is suspended, the clerk shall transmit the decree to the Department of Corrections, which has custody of the person under 6 R. Stat. § 132.002, and to any officer charged with collection.
Sentence of Death. The execution of a death sentence may be stayed by the Governor, as 6 R. Stat. § 131.404 provides. The Clerk of the Superior Court shall inform the Governor that a person has been sentenced to death and shall allow thirty (30) days for the Governor to issue a warrant of execution, as 6 R. Stat. § 131.403 requires. No court shall stay the execution of a sentence of death, and Rule 31(15) governs.