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" means a weapon which is designed to expel a projectile by the action of black powder or smokeless powder.
(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]
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.