161.610
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”
has the meaning given that term in ORS 166.210.
(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, 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 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 under ORS 137.707 (5)(b)(A), 419C.349 (1)(b), 419C.352, 419C.364
or 419C.370, 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; 2009 c.610 §5; 2019
c.634 §7]
Notes of Decisions
Cited in
240
cases (
45 in the last 5 years), 1981–2026 · leading case:
State v. Jacob, 145 P.3d 212 (Or. Ct. App. 2006).
State v. Jacob, 145 P.3d 212 (Or. Ct. App. 2006).
· cites it 317× “For the reasons that follow, we remand for resentencing. The facts that frame the issue on appeal are as follows.”
Layton v. Hall, 47 P.3d 898 (Or. Ct. App. 2002).
· cites it 29× “165(1); ORS 161.610. Assault in the third degree is a Class C felony, ORS 163.”
State v. Warner, 630 P.2d 385 (Or. Ct. App. 1981).
· cites it 33× “The trial court also imposed minimum sentences of 5 and 10 years, pursuant to ORS 161.610 and ORS 144.110 respectively, to run concurrently with the 20 year robbery sentence.”
State v. Jacob, 180 P.3d 6 (Or. 2008).
· cites it 37× “Defendant received a five-year minimum sentence for the first felony and a 10-year minimum sentence for the second felony, under the applicable versions of ORS 161.610. The trial court that sentenced defendant on the third felony refused to impose a 30-year minimum sentence…”
State v. Nunes, 433 P.3d 374 (Or. Ct. App. 2018).
· cites it 54× “610(4)(b) (set outUUW-firearm) (Count 1), ORS 161.610 ; ORS 166.220 ; two counts of felon in possession of a firearm (FIP) (Counts 2 and 6), ORS 166.”
State v. Wedge, 652 P.2d 773 (Or. 1982).
· cites it 13× “We approve the Court of Appeals explanation of ORS 161.610 in State v. Warner, 52 Or App 987 , 630 P2d 385 (1981): “* * * ORS 161.”
State v. Hardesty, 682 P.2d 824 (Or. Ct. App. 1984).
· cites it 36× “The trial court sentenced him to 20 years for each conviction and imposed a mandatory minimum sentence of five years on each, pursuant to ORS 161.610. The court ordered both robbery sentences to be served concurrently but consecutive to the rape sentence.”
State v. Allen, 398 P.3d 497 (Or. Ct. App. 2017).
· cites it 25× “Hardesty, 298 Or 616, 619 , 695 P2d 569 (1985) (holding that only one 60-month mandatory minimum sentence can be imposed under ORS 161.610 when a single trial results in convictions for more than one felony in which a firearm was used or threatened to be used).”
State v. Bock (A169480), 485 P.3d 931 (Or. Ct. App. 2021).
· cites it 4× “175 (Count 5); burglary in the first degree, ORS 164.225 (Count 6); felon in possession of a firearm, ORS 166.”
State v. Walker, 683 P.2d 1006 (Or. Ct. App. 1984).
· cites it 25× “On the first robbery count, the trial court imposed minimum sentences of five and ten years, under ORS 161.610 1 and 144.110(1), 2 respectively, to run consecutively.”
State v. Flores, 313 P.3d 378 (Or. Ct. App. 2013).
· cites it 9× “In sentencing the defendant, the court — not the jury — found as fact that the defendant had violated an earlier version of ORS 161.610, which provided for a minimum five-year sentence for use or threatened use of a firearm during the commission of a crime.”
State v. Giron-Cortez, 557 P.3d 505 (Or. 2024).
· cites it 4× “1 Defendant raises two other issues on review that challenge the application of the additional “use * * * of a firearm” element under ORS 161.610(2) to the third-degree assault conviction, and the resulting sentencing enhancement.”
— Or. Rev. Stat. § 161.610(1) — 1 case
State v. Jacob, 145 P.3d 212 (Or. Ct. App. 2006).
“For the reasons that follow, we remand for resentencing. The facts that frame the issue on appeal are as follows.”
— Or. Rev. Stat. § 161.610(2) — 34 cases
State v. Giron-Cortez, 557 P.3d 505 (Or. 2024).
“1 Defendant raises two other issues on review that challenge the application of the additional “use * * * of a firearm” element under ORS 161.610(2) to the third-degree assault conviction, and the resulting sentencing enhancement.”
State v. Flores, 313 P.3d 378 (Or. Ct. App. 2013).
“In sentencing the defendant, the court — not the jury — found as fact that the defendant had violated an earlier version of ORS 161.610, which provided for a minimum five-year sentence for use or threatened use of a firearm during the commission of a crime.”
— Or. Rev. Stat. § 161.610(3) — 22 cases
State v. Nunes, 433 P.3d 374 (Or. Ct. App. 2018).
“610(4)(b) (set outUUW-firearm) (Count 1), ORS 161.610 ; ORS 166.220 ; two counts of felon in possession of a firearm (FIP) (Counts 2 and 6), ORS 166.”
Layton v. Hall, 47 P.3d 898 (Or. Ct. App. 2002).
“165(1); ORS 161.610. Assault in the third degree is a Class C felony, ORS 163.”
State v. Jacob, 180 P.3d 6 (Or. 2008).
“Defendant received a five-year minimum sentence for the first felony and a 10-year minimum sentence for the second felony, under the applicable versions of ORS 161.610. The trial court that sentenced defendant on the third felony refused to impose a 30-year minimum sentence…”
— Or. Rev. Stat. § 161.610(4) — 28 cases
State v. Jacob, 145 P.3d 212 (Or. Ct. App. 2006).
“For the reasons that follow, we remand for resentencing. The facts that frame the issue on appeal are as follows.”
State v. Allen, 398 P.3d 497 (Or. Ct. App. 2017).
“Hardesty, 298 Or 616, 619 , 695 P2d 569 (1985) (holding that only one 60-month mandatory minimum sentence can be imposed under ORS 161.610 when a single trial results in convictions for more than one felony in which a firearm was used or threatened to be used).”
State v. Wedge, 652 P.2d 773 (Or. 1982).
“We approve the Court of Appeals explanation of ORS 161.610 in State v. Warner, 52 Or App 987 , 630 P2d 385 (1981): “* * * ORS 161.”
State v. Jacob, 180 P.3d 6 (Or. 2008).
“Defendant received a five-year minimum sentence for the first felony and a 10-year minimum sentence for the second felony, under the applicable versions of ORS 161.610. The trial court that sentenced defendant on the third felony refused to impose a 30-year minimum sentence…”
— Or. Rev. Stat. § 161.610(4)(a) — 26 cases
State v. Jacob, 145 P.3d 212 (Or. Ct. App. 2006).
“For the reasons that follow, we remand for resentencing. The facts that frame the issue on appeal are as follows.”
State v. Allen, 398 P.3d 497 (Or. Ct. App. 2017).
“Hardesty, 298 Or 616, 619 , 695 P2d 569 (1985) (holding that only one 60-month mandatory minimum sentence can be imposed under ORS 161.610 when a single trial results in convictions for more than one felony in which a firearm was used or threatened to be used).”
Layton v. Hall, 47 P.3d 898 (Or. Ct. App. 2002).
“165(1); ORS 161.610. Assault in the third degree is a Class C felony, ORS 163.”
— Or. Rev. Stat. § 161.610(4)(b) — 11 cases
State v. Nunes, 433 P.3d 374 (Or. Ct. App. 2018).
“610(4)(b) (set outUUW-firearm) (Count 1), ORS 161.610 ; ORS 166.220 ; two counts of felon in possession of a firearm (FIP) (Counts 2 and 6), ORS 166.”
State v. Jacob, 145 P.3d 212 (Or. Ct. App. 2006).
“For the reasons that follow, we remand for resentencing. The facts that frame the issue on appeal are as follows.”
State v. Jacob, 180 P.3d 6 (Or. 2008).
“Defendant received a five-year minimum sentence for the first felony and a 10-year minimum sentence for the second felony, under the applicable versions of ORS 161.610. The trial court that sentenced defendant on the third felony refused to impose a 30-year minimum sentence…”
— Or. Rev. Stat. § 161.610(4)(c) — 2 cases
State v. Jacob, 145 P.3d 212 (Or. Ct. App. 2006).
“For the reasons that follow, we remand for resentencing. The facts that frame the issue on appeal are as follows.”
State v. Jacob, 180 P.3d 6 (Or. 2008).
“Defendant received a five-year minimum sentence for the first felony and a 10-year minimum sentence for the second felony, under the applicable versions of ORS 161.610. The trial court that sentenced defendant on the third felony refused to impose a 30-year minimum sentence…”
— Or. Rev. Stat. § 161.610(5) — 21 cases
State v. Hardesty, 682 P.2d 824 (Or. Ct. App. 1984).
“The trial court sentenced him to 20 years for each conviction and imposed a mandatory minimum sentence of five years on each, pursuant to ORS 161.610. The court ordered both robbery sentences to be served concurrently but consecutive to the rape sentence.”
State v. Wedge, 652 P.2d 773 (Or. 1982).
“We approve the Court of Appeals explanation of ORS 161.610 in State v. Warner, 52 Or App 987 , 630 P2d 385 (1981): “* * * ORS 161.”
State v. Jacob, 145 P.3d 212 (Or. Ct. App. 2006).
“For the reasons that follow, we remand for resentencing. The facts that frame the issue on appeal are as follows.”
— Or. Rev. Stat. § 161.610(5)(a) — 7 cases
State v. Hardesty, 682 P.2d 824 (Or. Ct. App. 1984).
“The trial court sentenced him to 20 years for each conviction and imposed a mandatory minimum sentence of five years on each, pursuant to ORS 161.610. The court ordered both robbery sentences to be served concurrently but consecutive to the rape sentence.”
State v. Walker, 683 P.2d 1006 (Or. Ct. App. 1984).
“On the first robbery count, the trial court imposed minimum sentences of five and ten years, under ORS 161.610 1 and 144.110(1), 2 respectively, to run consecutively.”
— Or. Rev. Stat. § 161.610(5)(b) — 6 cases
State v. Hardesty, 682 P.2d 824 (Or. Ct. App. 1984).
“The trial court sentenced him to 20 years for each conviction and imposed a mandatory minimum sentence of five years on each, pursuant to ORS 161.610. The court ordered both robbery sentences to be served concurrently but consecutive to the rape sentence.”
State v. Nunes, 433 P.3d 374 (Or. Ct. App. 2018).
“610(4)(b) (set outUUW-firearm) (Count 1), ORS 161.610 ; ORS 166.220 ; two counts of felon in possession of a firearm (FIP) (Counts 2 and 6), ORS 166.”
— Or. Rev. Stat. § 161.610(5)(c) — 1 case
— Or. Rev. Stat. § 161.610(6) — 4 cases
State v. Hardesty, 682 P.2d 824 (Or. Ct. App. 1984).
“The trial court sentenced him to 20 years for each conviction and imposed a mandatory minimum sentence of five years on each, pursuant to ORS 161.610. The court ordered both robbery sentences to be served concurrently but consecutive to the rape sentence.”
State v. Warner, 630 P.2d 385 (Or. Ct. App. 1981).
“The trial court also imposed minimum sentences of 5 and 10 years, pursuant to ORS 161.610 and ORS 144.110 respectively, to run concurrently with the 20 year robbery sentence.”
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