Reduction of felony to misdemeanor not always efffective

On Wednesday the Oregon Court of Appeals upheld Nile Stark's conviction for being a felon in possession of a firearm, despite the fact that the felony conviction upon which the case rested had been reduced to a misdemeanor before he possessed the gun at issue.

In 2004 Mr. Stark was convicted of possession of a controlled substance (PCS), a class C felony. Under Oregon law, a person who is convicted of certain felonies may have them reduced to a misdemeanor at the time of sentencing or upon successful completion of probation. These options are sometimes referred to as "immediate" or "deferred misdemeanor treatment."

Mr. Stark's conviction for PCS authorized him to apply for deferred misdemeanor treatment upon his successfully completing a term of probation. Mr. Stark did what he was supposed to and in 2006 the court entered another judgment reducing his conviction to a misdemeanor.

In 2008 Mr. Stark was arrested for being a felon in possession of a firearm. He argued that he was not a felon by virtue of the deferred reduction of his felony PCS conviction to a misdemeanor in 2006. The Court of Appeals ruled against Mr. Stark because of a small difference in the language of the statute criminalizing the possession of firearms by certain felons.

Oregon law makes it a crime for felons to possess firearms. One exception, among many, applies to those whose felonies were reduced to misdemeanors "at the time of judgment." The Court of Appeals held this to mean that the felony conviction must be reduced to a misdemeanor at the time of the entry of the original judgment in order for the convicted person to lawfully possess firearms. "Deferred" misdemeanor treatment will not suffice.

The case highlights how, in even, a seemingly simple case, a small change in wording between relevant statutes can have a dramatic future impact on a person's life months or years after they have paid their debt to society. An experienced defense attorney can help guard against such unfortunate and perhaps avoidable consequences.


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