71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3674
House Bill 2913
Sponsored by Representative STARR; Representatives BROWN, BUTLER,
CARLSON, KNOPP, KRUSE, MINNIS, MORGAN, WILSON, WINTERS, WITT,
ZAUNER
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Establishes additional mandatory minimum terms of imprisonment
for person convicted of certain crimes if person used, possessed
or discharged firearm during commission of crime.
A BILL FOR AN ACT
Relating to firearms; creating new provisions; amending ORS
161.005, 161.610 and 166.293; and appropriating money.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) The crimes to which subsection (2) of this
section applies are:
(a) Aggravated murder, as defined in ORS 163.095;
(b) Murder, as defined in ORS 163.115;
(c) Conspiracy to commit aggravated murder or murder;
(d) Assault in the first degree, as defined in ORS 163.185;
(e) Assault in the second degree, as defined in ORS 163.175;
(f) Kidnapping in the first degree, as defined in ORS 163.235;
(g) Kidnapping in the second degree, as defined in ORS 163.225;
(h) Rape in the first degree, as defined in ORS 163.375;
(i) Sodomy in the first degree, as defined in ORS 163.405;
(j) Unlawful sexual penetration in the first degree, as defined
in ORS 163.411;
(k) Sexual abuse in the first degree, as defined in ORS
163.427;
(L) Robbery in the first degree, as defined in ORS 164.415;
(m) Robbery in the second degree, as defined in ORS 164.405;
and
(n) Attempt to commit any of the crimes listed in paragraphs
(a) to (c) and (f) to (m) of this subsection.
(2) Notwithstanding ORS 161.605 and in addition to the sentence
of imprisonment required by ORS 137.700, 137.707, 163.105 or
163.115, when a person is convicted of a crime listed in
subsection (1) of this section:
(a) The court shall impose a term of imprisonment of 10 years
if the person used or possessed a firearm during the commission
of the crime. The court shall impose the term of imprisonment
required by this paragraph regardless of whether the firearm was
loaded or operable.
(b) The court shall impose a term of imprisonment of 20 years
if the person intentionally discharged a firearm during the
commission of the crime.
(c) The court shall impose a term of imprisonment of 25 years
to life if the person discharged a firearm during the commission
of the crime and thereby caused serious physical injury to, or
the death of, another human being.
(3) The court shall order that the term of imprisonment
required by this section be served consecutively to any other
sentence of imprisonment imposed.
(4) A court may impose only one term of imprisonment under this
section upon a person convicted of a single crime. The court
shall impose the longest term of imprisonment that is applicable
under this section.
(5) A person sentenced under this section shall serve the
entire term of imprisonment imposed. During the service of the
term of imprisonment, the person is not eligible for:
(a) Release on post-prison supervision or any form of temporary
leave from custody; or
(b) Any reduction under ORS 421.121 that exceeds 15 percent of
the term of imprisonment. + }
SECTION 2. ORS 161.610 is amended to read:
161.610. (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 or 137.010
(3) and except as otherwise provided in subsection (6) of this
section { + and as otherwise required by section 1 of this 2001
Act + }, 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 and 144.126 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, 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, 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 (5)(b)(A), 419C.349, 419C.352,
419C.364 or 419C.370, the court is not required to impose a
minimum term of imprisonment under this section.
SECTION 3. ORS 166.293 is amended to read:
166.293. (1) If the application for the concealed handgun
license is denied, the sheriff shall set forth in writing the
reasons for the denial. The denial shall be sent to the applicant
by certified mail, restricted delivery, within 45 days after the
application was made. If no decision is issued within 45 days,
the person may seek review under the procedures in subsection (5)
of this section.
(2) Notwithstanding ORS 166.291 (1), and subject to review as
provided in subsection (5) of this section, a sheriff may deny a
concealed handgun license if the sheriff has reasonable grounds
to believe that the applicant has been or is reasonably likely to
be a danger to self or others, or to the community at large, as a
result of the applicant's mental or psychological state, as
demonstrated by past pattern of behavior or participation in
incidents involving unlawful violence or threats of unlawful
violence.
(3)(a) Any act or condition that would prevent the issuance of
a license under ORS 166.291 to 166.293 is cause for revoking a
concealed handgun license.
(b) A sheriff may revoke a license by serving upon the licensee
a notice of revocation. The notice must contain the grounds for
the revocation and must be served either personally or by
certified mail, restricted delivery. The notice and return of
service shall be included in the file of the licensee. The
revocation is effective upon the licensee's receipt of the
notice.
(4) Any peace officer or corrections officer may seize a
concealed handgun license and return it to the issuing sheriff
when the license is held by a person who has been arrested or
cited for a crime that can or would otherwise disqualify the
person from being issued a concealed handgun license. The issuing
sheriff shall hold the license for 30 days. If the person is not
charged with a crime within the 30 days, the sheriff shall return
the license unless the sheriff revokes the license as provided in
subsection (3) of this section.
(5) A person denied a concealed handgun license or whose
license is revoked or not renewed under ORS 166.291 to 166.295
may petition the circuit court in the petitioner's county of
residence to review the denial, nonrenewal or revocation. The
petition must be filed within 30 days after the receipt of the
notice of denial or revocation.
(6) The judgment affirming or overturning the sheriff's
decision shall be based solely on whether the petitioner meets
the criteria that are used for issuance of the license under ORS
166.291 to 166.293. Whenever the petitioner has been previously
sentenced for a crime under ORS 161.610 { + or section 1 of this
2001 Act + } or for a crime of violence for which the person
could have received a sentence of more than 10 years, the court
shall only grant relief if the court finds that relief should be
granted in the interest of justice.
(7) Notwithstanding the provisions of ORS 9.320, a corporation,
the state or any city, county, district or other political
subdivision or public corporation in this state, without
appearance by attorney, may appear as a party to an action under
this section.
(8) Petitions filed under this section shall be heard and
disposed of within 15 judicial days of filing or as soon as
practicable thereafter.
(9) Filing fees for actions shall be as for any civil action
filed in the court. If the petitioner prevails, the amount of the
filing fee shall be paid by the respondent to the petitioner and
may be incorporated into the court order.
(10) Initial appeals of petitions shall be heard de novo.
(11) Any party to a judgment under this section may appeal to
the Court of Appeals in the same manner as for any other civil
action.
(12) If the governmental entity files an appeal under this
section and does not prevail, it shall be ordered to pay the
attorney fees for the prevailing party.
SECTION 4. ORS 161.005 is amended to read:
161.005. ORS 161.005 to 161.055, 161.085 to 161.125, 161.150 to
161.175, 161.190 to 161.275, 161.290 to 161.370, 161.405 to
161.485, 161.505 to 161.585, 161.605, 161.615 to 161.685, 161.705
to 161.737, 162.005, 162.015 to 162.035, 162.055 to 162.115,
162.135 to 162.205, 162.225 to 162.375, 162.405 to 162.425,
162.465, 163.005, 163.115, 163.125 to 163.145, 163.160 to
163.208, 163.215 to 163.257, 163.275, 163.285, 163.305 to
163.467, 163.505 to 163.575, 163.665 to 163.695, 164.005, 164.015
to 164.135, 164.140, 164.205 to 164.270, 164.305 to 164.377,
164.395 to 164.415, 164.805, 164.877, 165.002 to 165.022, 165.032
to 165.070, 165.075 to 165.109, 165.805, 166.005 to 166.095,
166.350, 166.382, 166.384, 166.660, 167.002 to 167.027, 167.060
to 167.100, 167.117, 167.122 to 167.162, 167.203 to 167.252,
167.310 to 167.340 and 167.350, 167.810 and 167.820 { + and
section 1 of this 2001 Act + }, shall be known and may be cited
as Oregon Criminal Code of 1971.
SECTION 5. { + In addition to and not in lieu of any other
appropriation, there is appropriated to _____, for the biennium
beginning July 1, 2001, out of the General Fund, the amount of
$_____ to be expended only for the purpose of making public
service announcements informing the public of the enhanced
penalties created by section 1 of this 2001 Act. + }
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