A Felony Conviction Must Be Set Aside before Possessing a Firearm

Bailey v. Lampert
Supreme Court of Oregon
February 8, 2007

Holding: A person’s status as a felon will remain until the felony conviction has been set aside. As such, a person will be subject to the crime of felon in possession of a firearm, if, at the time of the unlawful firearm possession, he or she has a felony conviction on their record that has not been set aside.

Why This Case is Important: Oregon law makes it illegal for convicted felons to own or possess firearms. This restriction is found under Oregon Revised Statutes section 166.270(1), which states any person who has been convicted of a felony under Oregon or Federal laws, who owns or possesses under his custody or control any firearm commits the crime of felon in possession of a firearm.

Courts will look to the status of the defendant at the time he or she possesses a firearm. If the defendant possess a firearm and has a felony conviction on his or her record, then the defendant can be found guilty of ORS § 166.270(1). In contrast, if the defendant does not have a felony conviction at the time he possesses a firearm, then he cannot be found guilty of felony possession of a firearm. Therefore under ORS § 166.270, timing is everything.

Because the courts will focus on a defendant’s status at the time of possession, then a conviction under ORS § 166.270(1) will stand even if the underlying felony conviction is later set aside. This issue is best explained by examining what happened in this case. When reading the following synopsis, it is important to pay particular attention to the dates of conviction and post-conviction relief.

Facts of This Case: In 1995, the petitioner was convicted of felony sexual penetration in the first degree. In 2000, the defendant was subsequently convicted of being a felon in possession of a firearm, with the 1995 felony conviction being the basis for the firearm conviction. In 2003, the petitioner successfully sought post-conviction relief for his 1995 felony conviction. Because the prosecution failed to disclose crucial facts in regards to the 1995 conviction, the court determined that his 1995 convictions were invalid, and hereby set them aside.

With the 1995 convictions set aside, the petitioner subsequently petitioned to set aside his 2000 felon in possession of a firearm conviction. The petitioner argued that because his 1995 conviction was vacated, then he could not be considered a felon and that the felon in possession of a firearm should no longer be able to stand. The post-conviction court granted the petitioner a set aside, reasoning that vacation of his felony conviction required that his firearm conviction should too be set aside.

The court of appeals reversed the post-conviction court’s decision. The Supreme Court of Oregon agreed with the court of appeals and affirmed the decision against setting aside the felon in possession of a firearm conviction.

The Supreme Court of Oregon examined Oregon’s felon in possession of a firearm statute and determined that the Legislature had intended to focus on a person’s status at the time that he or she possessed a firearm. The Court stated that the Legislature determined that a person classified as a “felon” at the time could be prosecuted under ORS § 166.270.

Because the Legislature intended the focus to be on the person’s status at the time of firearm possession, the Court determined that it did not matter if the underlying felony convictions were later set aside. The Court held that the consequences of a conviction remain until that conviction is set aside. Since the petitioner here did not have his felony conviction set aside prior to the felon in possession of a firearm conviction, then the Court concluded that the firearm conviction could still stand.

[Recall that the petitioner in this case was convicted in 1995 of his felony conviction, convicted in 2000 for the felon in possession of a firearm offense, and had his 1995 conviction vacated in 2003. Because the petitioner’s status at the time of firearm possession was that of a felon, the felon in possession of a firearm conviction could stand.]

The Supreme Court of Oregon thereby affirmed the court of appeals decision to deny the petitioner’s request to set aside his felon in possession of a firearm conviction.

Key Language: It necessarily follows that a person’s status as one who has been convicted of a felony – and therefore is subject to prosecution under ORS 166. 270 if the person possess a firearm – continues unless and until the conviction is invalidated or the person brings himself or herself within a statutory exception.

Expert Advise: “A set aside may free a defendant from the disabilities that accompany the defendant’s status as a felon. However, it is important to note that the disabilities are lifted only after the conviction is overturned or set aside. This rule of law is especially important to understand when it comes to statutes that focus on defendant’s status at the time, such as ORS § 166.270, which was at issue in this case.” Attorney Mathew Higbee.

To read about more cases that help to define record clearing relief laws click here.

Find more legal articles in our articles database.