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Supreme Court Says Reducing a Felony to a Misdemeanor Restores Gun Rights

Oregon law allows a Court to reduce Class C felony crimes to a misdemeanor. This can be done at the time of sentencing or later, after completion of probation. For many years, Courts in Oregon have held that people who reduce their felony to a misdemeanor after completion of probation do not have their gun rights restored. This was based on an interpretation of the Oregon law that forbids convicted felons from owning firearms. That law forbids anyone who “has been convicted of a felony” from owning a firearm. The Courts reasoned that a person who received a misdemeanor reduction after completion of probation had still “been convicted of a felony” for the time between the initial sentencing and the time the felony was reduced to a misdemeanor.

The Oregon Supreme Court disagreed with that reasoning in State v. Stark, decided on August 15, 2013. In that case, Mr. Stark had been convicted of a Class C Felony drug crime. After he completed his probation he asked the Court to reduce the conviction to a misdemeanor. The Court granted the request and issued an order reducing the crime to a misdemeanor. Two years later Mr. Stark was found in possession of a firearm. He was prosecuted for being a Felon in Possession of a Firearm. Mr. Stark went back to the Judge who reduced his felony to a misdemeanor and asked the Judge to enter an Amended Judgment (rather than an Order) reducing his felony to a misdemeanor and asked that the Judge make it retroactive to the date of his first sentencing, which the Judge did. Mr. Stark was convicted of being a Felon in Possession of a Firearm and he appealed argued that he was innocent because his felony conviction had been reduced to a misdemeanor.

The State cited older cases which held that people who have received a misdemeanor reduction after probation are still convicted felons under Oregon Law. The Oregon Supreme Court rejected that argument, holding that when a Court enters an Amended Judgment reducing a person’s felony to a misdemeanor that person is no longer a felon under Oregon law. This is a substantial change in Oregon law.

However, there is a catch. The Oregon Supreme Court affirmed Mr. Stark’s conviction because no Amended Judgment reducing his felony to a misdemeanor had been entered, only an Order, which was not enough. The Court noted that the Amended Judgment that was deemed “retroactive” by the prior Judge was not valid.

If you have had a felony reduced to a misdemeanor, we can now file an Amended Judgment and restore your gun rights. If you have an eligible felony conviction, we can take you through the reduction process and have it reduced to a misdemeanor conviction.

We have great success in misdemeanor reduction hearings. As an Oregon Gun Rights Lawyer, I help many people regain their Second Amendment Rights through a variety of different processes.

Oregon Supreme Court Lifts Limits on Prosecutorial Discretion

Portland Property Crimes Attorneys should take note of a recent Oregon Supreme Court decision which makes a significant change in Oregon Law.

By way of background, in 1982 the Oregon Supreme Court issued its opinion in http://www.rajtent.com/images/prod/lol271/ where can i buy phentermine hcl 30 mg State v. Freeland, a case which set clear limits on prosecutorial discretion.  In http://www.rajtent.com/images/prod/lol839/ ordering phentermine online reviews Freeland, a district attorney charged a person with a crime by taking the case to grand jury, rather than allowing him a preliminary hearing which would have occurred in open court.  Mr. Freeland argued that the district attorney had no coherent policy over which cases were taken to grand jury and which went to preliminary hearing, leaving the prosecutor with unfettered discretion.  The Oregon Supreme Court agreed and found that such decisions must be made in accord with a systematic, coherent policy, in violations of the “privileges and immunities clause” of Article 1, Section 20 of the Oregon Constitution.

This rule limiting prosecutorial discretion has remained in place for 31 years.

In September of 2013 the Oregon Supreme Court revisited the http://www.rajtent.com/images/prod/lol328/ ordering phentermine 37.5 Freeland decision in State v. Savastano.  In Savastano, the defendant challenged a prosecutor’s standardless practice of “aggregating” multiple thefts into a Aggravated Theft charges.  Oregon law does allow a prosecutor to take multiple incidents of theft against a single victim that occur over a 180 day period into an Aggravated Theft charge.  Ms. Savastano was accused of committing multiple thefts from her employer over an extended period of time.  The prosecutor who charged her had no policy governing the choice of which thefts to aggregate, which time periods to choose or whether to aggregate the thefts at all.  Savastano argued that, under Freeland, the prosecutor was required to have a systematic and coherent policy in making such decisions.  The Court of Appeals, citing Freeland, agreed.

The Oregon Supreme Court accepted review of the case.  In their opinion in State v. Savastano, the Supreme Court decided to throw out the Freeland rule.  The Supreme Court sometimes modifies or reverses its previous decisions.  The Court is hesitant to do so, and tries to follow the rule of stare decisis which is a rule that sets a preference on following the rule in previous decisions, rather than constantly changing the law and causing confusion.  In Savastano, the Court found that the requirement of a “coherent and systematic policy” was really never required by Article 1, Section 20 and that Freeland’s holding to the contrary was a mistake.

Of course, the Oregon Supreme Court has the last word in terms of determining what the Oregon Constitution means.  Their justification for abandoning the Freeland rule was thorough and well reasoned.  Still, as an Oregon Property Crimes Lawyer I am still left to worry about prosecutorial decisions that are not based on sound policies and that are left to individual prosecutors.  Regardless of this ruling, we are still able to negotiate cases with district attorney’s and argue for reduced sentences with Judges, which is one of our firms strengths.

Legislative Changes to Probation Rules and Probation Conditions

In passing House Bill 3194 the 2013 Oregon Legislature attempted to make broad changes in the way in which offenders are supervised and also included one provision that will actually benefit people who are compliant on supervision.  These are important changes that should be studied by Portland Probation Violation Lawyers.

The most significant change was in the overall shift to the use of “evidence based practices” in supervising offenders.  In short, the legislature required state and local corrections to use scientifically proven methods for reducing recidivism and required corrections to track recidivism rates so that we can all tell what actually works and what those methods cost.

The first step in this process was to standardize the manner in which offenders are assessed for their needs and their areas of risk.  The tool now used is the Level of Service Case Management Inventory (LS-CMI), which measures a person’s needs and strengths in all aspects of their life.  This is an invaluable tool in determining what programming is appropriate and can measure a person’s progress over time.

But, these changes would be of little use if probation officers do not have the power to add or modify conditions of probation when they discover the need for programming not ordered as a condition of probation.  HB 3194 granted probation officers the authority to propose modifications to conditions of probation.  Under the new law, a probation officer can file a notice of modification of probation conditions in Court and serve the District Attorney.  If the District Attorney does not object to the changes within 10 days the new condition goes into effect.  So, when a probation officer discovers a previously unknown mental health problem, that officer can now add appropriate new conditions requiring action that is responsive to these problems.  This is a common sense, streamlined process that should work well.

The legislature also enacted a new change that will benefit people on probation.  The legislature now requires that state and local corrections provide for an reduction in the length of supervision for offenders who are compliant on probation or parole.  The reductions can be as much as fifty percent of the period of supervision.  This is a very good idea.  It makes no sense to continue supervising people who are compliant on probation or parole.  This also gives people an incentive to comply, because they know that early termination of probation is the reward.  This will also reduce caseloads and allow probation officers to focus their energy on people who actually need to be supervised.

As an Oregon Probation Violation lawyer I support these changes in the probation system.