70th OREGON LEGISLATIVE ASSEMBLY--1999 Regular Session


LC 2435

                      House Bill 2535

Sponsored by Representative MANNIX; Representative BUTLER


                         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 persons 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; and amending ORS
161.005, 161.610 and 166.293.

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 under ORS 163.095.

    (b) Murder under ORS 163.115.

    (c) Attempt or conspiracy to commit aggravated murder or
        murder.

    (d) Manslaughter in the first degree under ORS 163.118.

    (e) Manslaughter in the second degree under ORS 163.125.

    (f) Assault in the first degree under ORS 163.185.

    (g) Assault in the second degree under ORS 163.175.

    (h) Kidnapping in the first degree under ORS 163.235.

    (i) Kidnapping in the second degree under ORS 163.225.

    (j) Rape in the first degree under ORS 163.375.

    (k) Sodomy in the first degree under ORS 163.405.

    (L) Unlawful sexual penetration in the first degree under ORS
       163.411.

    (m) Sexual abuse in the first degree under ORS 163.427.

    (n) Robbery in the first degree under ORS 164.415.

    (o) Robbery in the second degree under ORS 164.405.

    (p) Arson in the first degree under ORS 164.325, when the
        offense represents a threat of serious physical injury.

    (q) Compelling prostitution under ORS 167.017.


(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 or if the person knew that
        an accomplice of 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 30
        years if the person discharged a firearm during the
        commission of the crime and thereby caused serious
        physical injury to, or the death of, another person.

(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 in, or based on, the term of imprisonment
        for any reason whatsoever under ORS 421.121 or any other
        statute.


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, other than a felony listed in section 1 of this 1999
    Act, 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 required by section 1 of this 1999
    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.


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) Violation of a condition of an order under ORS 30.866,
        107.700 to 107.732, 163.735 or 163.738 by a licensee
        subject to the order is cause for revoking a concealed
        handgun license.

    (c) 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 1999 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
163.465, 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 1999 Act, shall be known and may
be cited as Oregon Criminal Code of 1971.

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