2015 ORS 161.610¹
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 prison terms 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 from juvenile court under ORS 137.707 (Adult prosecution of 15-, 16- or 17-year-old offenders) (5)(b)(A), 419C.349 (Grounds for waiving youth to adult court), 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]

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 (Robbery in the first degree)) 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 (Restriction on parole of persons sentenced to minimum terms) 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 (Reduction in term of sentence of inmates) when determining "good time served" under ORS 161.610 (Enhanced penalty for use of firearm during commission of felony). 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 (Restriction on parole of persons sentenced to minimum terms), 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 (Restriction on parole of persons sentenced to minimum terms) 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 (Possession of weapons by certain felons). 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 (Determining length of determinate sentences) 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 (Maximum consecutive sentences), 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 (Maximum prison terms for felonies) 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)

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


1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors161.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.