General Provisions

ORS 161.610
Enhanced penalty for use of firearm during commission of felony

  • pleading
  • minimum penalties
  • suspension or reduction of penalty


(1)

As used in this section, “firearm” has the meaning given that term in ORS 166.210 (Definitions).

(2)

The use or threatened use of a firearm, whether operable or inoperable, by a defendant during the commission of a felony may be pleaded in the accusatory instrument and proved at trial as an element in aggravation of the crime as provided in this section. When a crime is so pleaded, the aggravated nature of the crime may be indicated by adding the words “with a firearm” to the title of the offense. The unaggravated crime shall be considered a lesser included offense.

(3)

Notwithstanding the provisions of ORS 161.605 (Maximum terms of imprisonment for felonies) or 137.010 (Duty of court to ascertain and impose punishment) (3) and except as otherwise provided in subsection (6) of this section, if a defendant is convicted of a felony having as an element the defendant’s use or threatened use of a firearm during the commission of the crime, the court shall impose at least the minimum term of imprisonment as provided in subsection (4) of this section. Except as provided in ORS 144.122 (Advancing initial release date) and 144.126 (Advancing release date of prisoner with severe medical condition including terminal illness or who is elderly and permanently incapacitated) and subsection (5) of this section, in no case shall any person punishable under this section become eligible for work release, parole, temporary leave or terminal leave until the minimum term of imprisonment is served, less a period of time equivalent to any reduction of imprisonment granted for good time served or time credits earned under ORS 421.121 (Reduction in term of incarceration), nor shall the execution of the sentence imposed upon such person be suspended by the court.

(4)

The minimum terms of imprisonment for felonies having as an element the defendant’s use or threatened use of a firearm in the commission of the crime shall be as follows:

(a)

Except as provided in subsection (5) of this section, upon the first conviction for such felony, five years, except that if the firearm is a machine gun, short-barreled rifle, short-barreled shotgun or is equipped with a firearms silencer, the term of imprisonment shall be 10 years.

(b)

Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection or subsection (5) of this section, 10 years, except that if the firearm is a machine gun, short-barreled rifle, short-barreled shotgun or is equipped with a firearms silencer, the term of imprisonment shall be 20 years.

(c)

Upon conviction for such felony committed after imprisonment pursuant to paragraph (b) of this subsection, 30 years.

(5)

If it is the first time that the defendant is subject to punishment under this section, rather than impose the sentence otherwise required by subsection (4)(a) of this section, the court may:

(a)

For felonies committed prior to November 1, 1989, suspend the execution of the sentence or impose a lesser term of imprisonment, when the court expressly finds mitigating circumstances justifying such lesser sentence and sets forth those circumstances in its statement on sentencing; or

(b)

For felonies committed on or after November 1, 1989, impose a lesser sentence in accordance with the rules of the Oregon Criminal Justice Commission.

(6)

When a defendant who is convicted of a felony having as an element the defendant’s use or threatened use of a firearm during the commission of the crime is a person who was waived under ORS 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court) (5)(b)(A), 419C.349 (Grounds for waiving youth to adult court) (1)(b), 419C.352 (Grounds for waiving youth under 15 years of age), 419C.364 (Waiver of future cases) or 419C.370 (Waiver of motor vehicle, boating, game, violation and property cases), the court is not required to impose a minimum term of imprisonment under this section. [1979 c.779 §2; 1985 c.552 §1; 1989 c.790 §72; 1989 c.839 §18; 1991 c.133 §3; 1993 c.692 §9; 1999 c.951 §3; 2005 c.407 §1; 2009 c.610 §5; 2019 c.634 §7]

Notes of Decisions

Under Former Similar Statute (Ors 166.230)

Enhanced penalty is applicable only to armed person, not to unarmed co-felon. State v. Hicks, 38 Or App 97, 589 P2d 1130 (1979)

In General

Since this section does not increase defendant's sentence in any way, but simply provides for minimum term of imprisonment, it does not punish exactly same conduct as that prohibited by robbery statute (ORS 164.415) and can apply to robbery conviction. State v. Warner, 52 Or App 987, 630 P2d 385 (1981), Sup Ct review denied

The mandatory minimum sentencing provisions of this section do not violate Article I Section 15 of Oregon Constitution, the reformation clause. State v. Warner, 52 Or App 987, 630 P2d 385 (1981), Sup Ct review denied

Sentence authorized and imposed pursuant to this section does not offend vindictive justice prohibitions of Oregon Constitution Article I, Section 15. State v. Lippert, 53 Or App 358, 632 P2d 28 (1981), Sup Ct review denied

Where the record shows no prior conviction and punishment under this section, the court is without authority to impose a ten-year minimum sentence for use or threatened use of a firearm. State v. Grant, 60 Or App 165, 653 P2d 242 (1982)

Where trial is by jury, enhanced sentence may not be imposed unless jury makes factual finding that defendant actually used or threatened to use firearm. State v. Wedge, 293 Or 598, 652 P2d 773 (1982); State v. Thiehoff, 169 Or App 630, 10 P3d 322 (2000), Sup Ct review denied

It was error for trial court to impose mandatory minimum sentence pursuant to this section after court had specifically found defendant did not personally use or threaten to use a firearm. State v. Thiesies, 63 Or App 200, 662 P2d 797 (1983)

This section and ORS 144.110 are intended to operate together and court may not impose consecutive minimum sentences under the two sections. State v. Walker, 68 Or App 561, 683 P2d 1006 (1984)

Under this section, consecutive minimum sentences cannot be imposed for series of felonies arising out of same criminal episode. State v. Browder, 68 Or App 723, 683 P2d 558 (1984), aff'd 298 Or 616, 695 P2d 569 (1985)

It was permissible for legislature, in enacting this section, to determine that person who has used firearm in commission of felony must serve minimum term of incarceration. State v. Earls, 69 Or App 75, 683 P2d 1387 (1984), Sup Ct review denied

Legislature intended that Board of Parole release date could set date as early as minimum term less good time expected to be accrued. Smith v. Board of Parole, 297 Or 184, 683 P2d 998 (1984)

This section does not authorize imposition of multiple minimum sentences for use of firearm in multiple crimes that are part of single criminal episode, even if such multiple minimum sentences are to run concurrently. State v. McCrea, 72 Or App 587, 696 P2d 1129 (1985), Sup Ct review denied

There can be only one "first" sentence whether it runs consecutively or concurrently with another sentence and trial court could not impose, for use of firearm, two concurrent minimum sentences under this section. State v. Pakulak, 75 Or App 418, 706 P2d 595 (1985)

Under circumstances, imposition of multiple minimum sentence for firearm use was not permissible. State v. Richardson, 77 Or App 64, 711 P2d 201 (1985)

This section does not authorize multiple mandatory terms of imprisonment when single trial results in convictions of more than one felony in which firearm was used or threatened to be used. State v. Hardesty, 298 Or 616, 695 P2d 569 (1985); State v. Dam, 111 Or App 15, 825 P2d 286 (1992), Sup Ct review denied

Under this section, defendant who commits two felonies in two separate criminal episodes and is convicted in two separate judicial proceedings, is subject to only one mandatory minimum gun sentence unless second felony was committed after punishment for first. State v. Wells, 82 Or App 283, 728 P2d 533 (1986)

Corrections Division may distinguish between time served and work performed, both of which entitle prisoner to sentence reduction under ORS 421.120 when determining "good time served" under ORS 161.610. Haffey v. Keeney, 84 Or App 607, 735 P2d 16 (1987), Sup Ct review denied

Mandatory minimum term of imprisonment that must be imposed under this section for use or threatened use of firearm during commission of felony is not limited in duration to that of minimum term that trial court may impose under ORS 144.110, which provides that trial court may impose minimum term of up to one-half of sentence it imposes. State v. Stelljes, 84 Or App 637, 735 P2d 24 (1987), Sup Ct review denied

Under this section, only one minimum sentence may be imposed for use or threatened use of firearm during criminal episode. State v. Moore, 88 Or App 159, 744 P2d 1006 (1987)

Mandatory minimum sentence under ORS 144.110 is not reduced for statutory good time in same way minimum sentence for use of firearm in commission of felony in this section is reduced for statutory good time. Watts v. Maass, 88 Or App 317, 746 P2d 220 (1987)

This section requires that court impose designated minimum term of imprisonment whenever defendant has used or threatened to use firearm during commission of felony and trial court lacked authority to impose lesser minimum term than that mandated by this section. Wallace v. Maass, 90 Or App 166, 750 P2d 1210 (1988)

One who points gun at victim and pulls trigger without gun firing and then hits victim with gun has used firearm within meaning of this section. State v. Hallinan, 92 Or App 125, 757 P2d 446 (1988), Sup Ct review denied

Caption need not include allegation that crime was committed with firearm if allegation is included in body of indictment. State v. Cesario II, 94 Or App 262, 764 P2d 981 (1988)

This section requires that sentencing court impose gun minimum sentence unless there are mitigating circumstances and post-conviction court lacks authority to require sentencing court to impose sentence other than that required by statute. State v. Grimm, 95 Or App 369, 769 P2d 238 (1989), Sup Ct review denied

Trial court properly imposed minimum term sentence under this section based upon finding that defendant had threatened use of firearm while committing felony of being ex-convict in possession of firearm under ORS 166.270. State v. Gilbert, 99 Or App 116, 781 P2d 389 (1989)

Minimum sentence based on possession of firearm may be imposed only on individual who personally uses or threatens to use firearm, not on aider and abetter. State v. Pies, 104 Or App 646, 802 P2d 702 (1990); State v. Thiehoff, 169 Or App 630, 10 P3d 322 (2000), Sup Ct review denied

Trial court erred by sentencing defendant both to presumptive sentence and to minimum term described in this section. State v. Stalder, 117 Or App 289, 844 P2d 225 (1992)

Limitations on incarceration term in ORS 137.637 do not limit application of other provisions of this section. State v. Stalder, 117 Or App 289, 844 P2d 225 (1992)

Separate finding that defendant used or threatened to use firearm was not needed where jury returned guilty verdict on charge having as element the use or threatened use of firearm. State v. Akin, 125 Or App 351, 865 P2d 461 (1993), Sup Ct review denied

Where imposing both gun minimum and consecutive sentences subject to restrictions of ORS 137.121, court must first determine primary offense, then determine length of terms for consecutive sentences by imposing gun minimum term or, if greater, by electing to impose term allowed for consecutive sentences under sentencing guidelines. State v. Johnson, 125 Or App 655, 866 P2d 1245 (1994)

Where use of firearm is element of crime charged, indictment need not allege that crime was committed with firearm in order to make defendant subject to enhanced penalty. State v. Wimberly, 152 Or App 154, 952 P2d 1042 (1998)

"Use" of firearm means discharging of firearm. State v. Harris, 174 Or App 105, 25 P3d 404 (2001)

Exemption of minimum term of imprisonment from maximum sentence provisions of ORS 161.605 does not exempt minimum term from sentencing guidelines restriction on length of post-prison supervision term. Layton v. Hall, 181 Or App 581, 47 P3d 898 (2002)

Out-of-state conviction for previous gun crime does not make defendant subject to higher gun minimum sentence as repeat offender. State v. Hilton, 187 Or App 666, 69 P3d 779 (2003), Sup Ct review denied

Under version of statute in effect in 2001, defendant could not collaterally attack validity of predicate conviction. State v. Jacob, 208 Or App 62, 145 P3d 212 (2006), aff'd 344 Or 181, 180 P3d 6 (2008)

Law Review Citations

In General

26 WLR 566 (1990)

§§ 161.605 to 161.685

Law Review Citations

51 OLR 433, 476, 489 (1972)

Chapter 161

Notes of Decisions

A juvenile court adjudication of whether or not a child committed acts which would be a criminal violation if committed by an adult must necessarily include an adjudication of all affirmative defenses that would be available to an adult being tried for the same criminal violation. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Citations

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislature's adoption of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021