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Updated Argument on Gun Minimum

by: Ryan Scott • September 24, 2023 • no comments

Since my last blog post on the gun minimum in mid-August, I have significantly revised my memo that argues that the gun minimum must be imposed on the primary offense and cannot be deferred to a later (and non-M11) count.

I have also added a constitutional argument.

Be forewarned that cutting and pasting have made the formatting a bit wonky, but with that caveat, here is the substance of the argument:

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Upward Departures

by: Ryan Scott • September 13, 2023 • no comments

Meg Huntington will be presenting on the law on upward departures this weekend at the OCDLA Conference in Newport. The materials for the conference have been made available to all attendees. I can tell you that her materials are very thorough, and there is no doubt that when I receive an upward departure notice in the future, I will be comparing the alleged factors to her materials. If you are unable to go to the conference, you should nevertheless order her materials. They are that useful.

Can the Judge Pick and Choose Which Count To Impose the Gun Minimum On?

by: Ryan Scott • August 16, 2023 • no comments

A very common situation is this. The defendant is charge with a M11 offense, such as Robbery in the First Degree with a Firearm. They are also charged with Felon in Possession of a Firearm with a Firearm. The language in each count "with a firearm" refers to the gun minimum sentence enhancement that is codified at ORS 161.610.

The "gun minimum" carries a minimum of 60 months (5 years) in prison, which makes it less than the mandatory minimum sentence for any M11 offense. However, the minimum can be suspended for the first gun minimum conviction, although whether it is suspended or not, a second gun minimum conviction carries a mandatory 10 years in prison. The first gun minimum can also only be imposed once.

Assume the defendant is convicted of the charges above. Can the trial judge not impose the gun minimum on the robbery count and instead impose it on the felon in possession count? The advantage of doing so is that the felon in possession count -- because it has a separate "victim" than the robbery count -- can be run consecutively. In other words, imposing the gun minimum on the second count would permit a sentence of 150 months (90 plus 60) whereas imposing it on the first count would only allow a much shorter sentence.

The argument is no, the judge cannot pick and choose which count to impose the gun minimum on. The reason why is as follows:

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Next 20 Articles

Case Reviews

Oregon Court of Appeals, September 20th, 2023

by: Rankin Johnson

APPELLATE PROCEDURE - Proceedings on remand

SENTENCING - Sentencing credits

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Oregon Court of Appeals, September 13th, 2023

by: Rankin Johnson

JURY TRIALS - Juror questions

JURY UNANIMITY - Voluntariness

SEARCH AND SEIZURE - Privacy interest


PLEA AGREEMENTS - Agreement not to seek review


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Oregon Court of Appeals, September 6th, 2023

by: Rankin Johnson

PROBATION - Polygraphs as probation condition

RESTITUTION - Reasonableness of bills

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Oregon Court of Appeals, August 30th, 2023

by: Rankin Johnson

DUII - Statutory counterparts

EVIDENCE - Vouching


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Oregon Court of Appeals, August 23rd, 2023

by: Rankin Johnson

CIVIL COMMITMENT - Procedural requirements


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