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]

Source: Section 161.610 — Enhanced penalty for use of firearm during commission of felony; pleading; minimum penalties; suspension or reduction of penalty, https://www.­oregonlegislature.­gov/bills_laws/ors/ors161.­html.

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)

This section does not require imposition of firearm minimum sentence on first qualifying offense for which defendant is sentenced in single case involving multiple firearm offenses. State v. Pouncey, 303 Or App 365, 464 P3d 448 (2020), Sup Ct review denied

Law Review Citations

In general

26 WLR 566 (1990)

161.005
Short title
161.015
General definitions
161.025
Purposes
161.035
Application of Criminal Code
161.045
Limits on application
161.055
Burden of proof as to defenses
161.067
Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations
161.085
Definitions with respect to culpability
161.095
Requirements for criminal liability
161.105
Culpability requirement inapplicable to certain violations and offenses
161.115
Construction of statutes with respect to culpability
161.125
Drug or controlled substance use or dependence or intoxication as defense
161.150
Criminal liability described
161.155
Criminal liability for conduct of another
161.160
Exclusion of defenses to criminal liability for conduct of another
161.165
Exemptions to criminal liability for conduct of another
161.170
Criminal liability of corporations
161.175
Criminal liability of an individual for corporate conduct
161.190
Justification as a defense
161.195
“Justification” described
161.200
Choice of evils
161.205
Use of physical force generally
161.209
Use of physical force in defense of a person
161.215
Limitations on use of physical force in defense of a person
161.219
Limitations on use of deadly physical force in defense of a person
161.225
Use of physical force in defense of premises
161.229
Use of physical force in defense of property
161.233
Use of physical force by peace officer
161.237
Use of physical force involving pressure on throat or neck by peace officer or corrections officer
161.242
Use of deadly physical force by peace officer
161.245
“Reasonable belief” described
161.249
Use of physical force by private person assisting an arrest
161.255
Use of physical force by private person making citizen’s arrest
161.260
Use of physical force in resisting arrest prohibited
161.265
Use of physical force by guard or peace officer employed in correctional facility
161.267
Use of physical force by corrections officer or official employed by Department of Corrections
161.270
Duress
161.275
Entrapment
161.290
Incapacity due to immaturity
161.295
Effect of qualifying mental disorder
161.300
Evidence of qualifying mental disorder admissible as to intent
161.305
Qualifying mental disorder as affirmative defense
161.309
Notice of mental defense
161.313
Jury instructions
161.315
Right of state to obtain mental examination of defendant
161.319
Form of verdict on guilty except for insanity
161.325
Finding of guilty except for insanity
161.326
Notice to victim
161.327
Commitment or conditional release of person found guilty except for insanity of felony
161.328
Commitment of person found guilty except for insanity of misdemeanor
161.329
Order of discharge
161.332
“Conditional release” defined
161.336
Conditional release by board
161.341
Application for discharge or conditional release
161.346
Hearings on discharge, conditional release, commitment or modification
161.348
Judicial review
161.349
Person committed under ORS 161.315 to 161.351 sentenced to term of incarceration
161.351
Discharge by board
161.355
Definitions
161.360
Qualifying mental disorder affecting fitness to proceed
161.362
Requirements for recommendations, determinations and orders
161.365
Procedure for determining issue of fitness to proceed
161.367
Gaining or regaining fitness
161.370
Determination of fitness to proceed
161.371
Procedures upon commitment of defendant
161.372
Involuntary administration of medication for fitness to proceed
161.373
Records for fitness to proceed examination
161.375
Escape of person placed at hospital or facility
161.385
Psychiatric Security Review Board
161.387
Board to implement policies
161.390
Rules for assignment of persons to state mental hospitals or secure intensive community inpatient facilities
161.392
Certification of psychiatrists and licensed psychologists
161.395
Subpoena power
161.397
Psychiatric Security Review Board Account
161.398
Restorative justice program
161.400
Leave of absence
161.405
“Attempt” described
161.425
Impossibility not a defense
161.430
Renunciation as a defense to attempt
161.435
Solicitation
161.440
Renunciation as defense to solicitation
161.450
“Criminal conspiracy” described
161.455
Conspiratorial relationship
161.460
Renunciation as defense to conspiracy
161.465
Duration of conspiracy
161.475
Defenses to solicitation and conspiracy
161.485
Multiple convictions barred in inchoate crimes
161.505
“Offense” described
161.515
“Crime” described
161.525
“Felony” described
161.535
Classification of felonies
161.545
“Misdemeanor” described
161.555
Classification of misdemeanors
161.566
Misdemeanor treated as violation
161.568
Misdemeanor treated as violation
161.570
Felony treated as misdemeanor
161.585
Classification of certain crimes determined by punishment
161.605
Maximum terms of imprisonment for felonies
161.610
Enhanced penalty for use of firearm during commission of felony
161.615
Maximum terms of imprisonment for misdemeanors
161.620
Sentences imposed upon waiver
161.625
Fines for felonies
161.635
Fines for misdemeanors
161.645
Standards for imposing fines
161.655
Fines for corporations
161.665
Costs
161.675
Time and method of payment of fines, restitution and costs
161.685
Effect of nonpayment of fines, restitution or costs
161.705
Reduction of certain felonies to misdemeanors
161.710
Reduction of certain felony driving offenses after completion of sentence
161.715
Standards for discharge of defendant
161.725
Standards for sentencing of dangerous offenders
161.735
Procedure for determining whether defendant dangerous
161.737
Sentence imposed on dangerous offender as departure from sentencing guidelines
161.740
Sentencing of juvenile offenders
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