73rd OREGON LEGISLATIVE ASSEMBLY--2005 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 1659
House Bill 3417
Sponsored by Representative KITTS; Representatives ANDERSON,
BOQUIST, FLORES, HANNA, SCHAUFLER, SCOTT, THATCHER, Senator B
STARR
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 mandatory minimum sentences for possession and
discharge of firearm during commission of felony.
A BILL FOR AN ACT
Relating to firearms; amending ORS 144.122, 144.126 and 161.610.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 161.610 is amended to read:
161.610. (1) As used in this section { + : + } { - , - }
{ + (a) + } 'Firearm' means a weapon { - which - } { +
that + } is designed to expel a projectile by the action of black
powder or smokeless powder.
{ + (b) 'Possess' means to carry on the person or have within
immediate physical reach with ready access.
(c) 'Serious physical injury' has the meaning given that term
in ORS 161.015. + }
(2) The { - use or threatened use - } { + possession + } 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 - }
{ + is + } a lesser included offense.
(3) Notwithstanding the provisions of ORS 161.605 or 137.010
(3) and except as otherwise provided in subsection { - (6) - }
{ + (7) + } of this section, if a defendant is convicted of a
felony having as an element the defendant's { - use or
threatened use - } { + possession + } 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 - } { + is a + } person punishable under this
{ - section become - } { + subsection + } 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 - } { + may + } the execution of the sentence
imposed upon { - such - } { + + } { + the + } 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 - } { +
possession + } of a firearm in the commission of the crime
{ - shall be as follows - } { + are + }:
(a) { - Except as provided in subsection (5) of this
section, - } Upon the first conviction for such felony,
{ - five - } { + 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 10 - } { + is 15 + } years.
(b) Upon conviction for such felony committed after
{ - punishment - } { + imprisonment + } pursuant to paragraph
(a) of this subsection, { - 10 - } { + 15 + } 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. - }
{ + (5) Notwithstanding the provisions of ORS 161.605 and
except as otherwise provided in subsection (7) of this section,
if a defendant is convicted of a felony having as an element the
defendant's possession of a firearm during the commission of the
crime and the defendant discharged the firearm during the
commission of the crime, the court shall impose, and the
defendant shall serve, a term of imprisonment of at least 20
years. A person punishable under this subsection is not, during
the service of the term of imprisonment, eligible for release on
post-prison supervision or any form of temporary leave from
custody. The person is not eligible for any reduction in, or
based on, the minimum sentence for any reason whatsoever under
ORS 421.121. The court may impose a greater sentence if otherwise
permitted by law, but may not impose a lower sentence than the
sentence specified in this subsection.
(6)(a) Notwithstanding the provisions of ORS 161.605 and except
as otherwise provided in subsection (7) of this section, if a
defendant is convicted of a felony having as an element the
defendant's possession of a firearm during the commission of the
crime and the defendant intentionally discharged the firearm
during the commission of the crime causing serious physical
injury to another person, the court shall impose a term of
imprisonment for life.
(b) When a defendant is sentenced to imprisonment for life
under this subsection, the court shall order that the defendant
shall be confined for a minimum of 20 years without possibility
of release on post-prison supervision, release on work release or
any form of temporary leave or employment at a forest or work
camp.
(c) At any time after completion of a minimum period of
confinement under paragraph (b) of this subsection, the State
Board of Parole and Post-Prison Supervision, upon the petition of
a prisoner so confined, shall hold a hearing to determine whether
the prisoner is likely to be rehabilitated within a reasonable
period of time. The sole issue is whether or not the prisoner is
likely to be rehabilitated within a reasonable period of time.
The proceeding shall be conducted in the manner prescribed for a
contested case hearing under ORS chapter 183 except that:
(A) The prisoner has the burden of proving by a preponderance
of the evidence the likelihood of rehabilitation within a
reasonable period of time; and
(B) The prisoner has the right, if the prisoner is without
sufficient funds to employ an attorney, to be represented by
legal counsel, appointed by the board at board expense.
(d) If, after hearing all of the evidence, the board, upon a
unanimous vote of all of its members, finds that the prisoner is
likely to be rehabilitated within a reasonable period of time and
that the terms of the prisoner's confinement should be changed to
life imprisonment with the possibility of release on post-prison
supervision or work release, the board shall enter an order to
that effect. If the board enters the order, the order converts
the terms of the prisoner's confinement to life imprisonment with
the possibility of release on post-prison supervision or work
release and the board may set a release date. Otherwise, the
board shall deny the relief sought in the petition.
(e) Not less than two years after the denial of the relief
sought in a petition under paragraph (c) of this subsection, the
prisoner may petition again for a change in the terms of
confinement. Further petitions for a change may be filed at
intervals of not less than two years. + }
{ - (6) - } { + (7) + } When a defendant who is convicted
of a felony having as an element the defendant's { - use or
threatened use - } { + possession + } 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 2. ORS 144.122 is amended to read:
144.122. (1) After the initial parole release date has been set
under ORS 144.120 and after a minimum period of time established
by the State Board of Parole and Post-Prison Supervision under
subsection (2)(a) of this section, the prisoner may request that
the parole release date be reset to an earlier date. The board
may grant the request upon a determination by the board that
continued incarceration is cruel and inhumane and that resetting
the release date to an earlier date is not incompatible with the
best interests of the prisoner and society and that the prisoner:
(a) Has demonstrated an extended course of conduct indicating
outstanding reformation;
(b) Suffers from a severe medical condition including terminal
illness; or
(c) Is elderly and is permanently incapacitated in such a
manner that the prisoner is unable to move from place to place
without the assistance of another person.
(2) The Advisory Commission on Prison Terms and Parole
Standards may propose to the board and the board shall adopt
rules:
(a) Establishing minimum periods of time to be served by
prisoners before application may be made for a reset of release
date under subsection (1) of this section;
(b) Detailing the criteria set forth under subsection (1) of
this section for the resetting of a parole release date; and
(c) Establishing criteria for parole release plans for
prisoners released under this section that, at a minimum, must
insure appropriate supervision and services for the person
released.
(3) The provisions of subsection (1)(b) of this section apply
to prisoners sentenced in accordance with ORS 161.610 { +
(3) + }.
(4) The provisions of this section do not apply to prisoners
sentenced to life imprisonment without the possibility of release
or parole under ORS 138.012 or 163.150.
SECTION 3. ORS 144.126 is amended to read:
144.126. (1) The State Board of Parole and Post-Prison
Supervision may advance the release date of a prisoner who was
sentenced in accordance with rules of the Oregon Criminal Justice
Commission or ORS 161.610 { + (3) + }. The release date may be
advanced if the board determines that continued incarceration is
cruel and inhumane and that advancing the release date of the
prisoner is not incompatible with the best interests of the
prisoner and society and that the prisoner is:
(a) Suffering from a severe medical condition including
terminal illness; or
(b) Elderly and permanently incapacitated in such a manner that
the prisoner is unable to move from place to place without the
assistance of another person.
(2) The board shall adopt rules establishing criteria for
release plans for prisoners released under this section that, at
a minimum, must insure appropriate supervision and services for
the person released.
(3) The provisions of this section do not apply to prisoners
sentenced to life imprisonment without the possibility of release
or parole under ORS 138.012 or 163.150.
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