State v. Stark
Case #: S060384
Walters, J. for the Court; Balmer, C.J.; Kistler, J.; Linder, J.; Landau, J.; and Baldwin, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/S060384.pdf
Criminal Procedure: For the purposes of ORS 166.207(3)(a), the felon-in-possession statute, a defendant whose previous felony conviction has been reduced to a misdemeanor is excluded, but only if that reduction was in effect before a defendant was charged as a felon in possession.
Defendant petitioned for review after the Court of Appeals affirmed the trial court’s decision that Defendant could be considered a felon under the felon-in-possession statute, despite a court order reducing his previous felony conviction to a misdemeanor. Defendant was convicted in 2004 for felony possession of a controlled substance and was sentenced to a term of probation. In 2006, at the end of this term, Defendant moved for an order reducing his conviction to a misdemeanor. An order was recorded nunc pro tunc. A new retroactive judgment was entered in 2009. In 2008, Defendant was arrested as a felon in possession of a firearm. At trial, Defendant moved that he was not a felon because, in light of the new judgment, he did not fit the definition of a person convicted of a felony. This motion was denied and Defendant was convicted. The Court of Appeals affirmed his conviction on the grounds that the felon-in-possession statute only applied to declarations at the time of the original judgment. The Supreme Court disagreed with the Court of Appeals, concluding that a judgment changing a prior felony to a misdemeanor, even after conviction, excludes a defendant from the felon-in-possession statute. However, Defendant in this case does not qualify for this exclusion because, when he was arrested as a felon in possession, the new judgment, declaring Defendant’s felony had been a misdemeanor, was not in effect, despite nunc pro tunc wording. Affirmed.