No. 34 August 15, 2013 1

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

NILE TERRENCE STARK,

Petitioner on Review.

(CC 08040789; CA A144974; SC S060384)

On review from the Court of Appeals.*

Argued and submitted March 12, 2013.

Andrew D. Robinson, Deputy Public Defender, Salem, 

argued the cause and filed the brief for petitioner on review. 

With him on the brief was Peter Gartlan, Chief Defender, 

Office of Public Defense Services.

Gregory A. Rios, Assistant Attorney General, Salem, 

argued the cause and filed the brief for respondent on review. 

With him on the brief were Ellen F. Rosenblum, Attorney 

General, and Anna M. Joyce, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, Linder,

Landau, and Baldwin, Justices.**

WALTERS, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are affirmed.

______________

** Appeal from Linn County Circuit Court, John A. McCormick, Judge. 248 

Or App 573 (2012).

** Brewer, J., did not participate in the consideration or decision of this case.
2 State v. Stark

Defendant challenged his conviction for the crime of felon in possession of 

a firearm, arguing that, when he possessed the firearm in question, he was not 

a “person who has been convicted of a felony” within the meaning of the felonin-possession statute, ORS 166.270. Defendant acknowledged a prior felony 

conviction, but he argued that, because the trial court that entered the judgment 

of conviction had later issued an order, and then a judgment, stating that that 

conviction was for a misdemeanor, his case fell under subsection (3)(a) of ORS 

166.270, which states that an apparent felony conviction “shall not be deemed a 

conviction of a felony if * ** the court declared the conviction to be a misdemeanor 

at the time of judgment.” The trial court rejected that argument and defendant 

was convicted. The Court of Appeals affirmed the conviction, holding that 

subsection (3)(a) of ORS 166.270 refers only to declarations made by courts at the 

time of the original judgment of conviction, and that, once a judgment is entered 

convicting a person of a felony, a later order or judgment reducing that conviction 

to a misdemeanor cannot alter the person’s status as a felony for purposes of 

the statute. Held: Although ORS 166.270(3)(a) may apply to declarations of 

misdemeanor status in judgments of conviction entered subsequent to the 

original judgment, no such subsequent judgment was in effect at the time the 

accused was found in possession of a firearm.

The decision of the Court of Appeals and the judgment of the circuit court 

are affirmed.
Cite as 354 Or 1 (2013) 3

WALTERS, J.

Defendant challenges his conviction for the crime of 

felon in possession of a firearm, arguing that, when he possessed the firearm in question, he was not a “person who has 

been convicted of a felony” within the meaning of the felonin-possession statute, ORS 166.270. Paragraph (3)(a) of

that statute provides that a conviction shall not be deemed 

a felony conviction if, “at the time of judgment,” the court 

declared the conviction to be a misdemeanor. We interpret 

that paragraph to refer not only to the original judgment of 

conviction, but also to subsequent judgments of conviction 

entered prior to an accused’s firearm possession. In this case,

we conclude that the court had not declared defendant’s 

conviction to be a misdemeanor in the original or a subsequent judgment of conviction by the time that defendant possessed the firearm in question. Accordingly, we reject defendant’s claim of error and affirm his conviction on the felonin-possession charge.

The following undisputed facts appear in the record. 

In 2004, defendant was convicted in Marion County Circuit 

Court of felony possession of a controlled substance and was

sentenced to 18 months of supervised probation. The judgment

of conviction included a handwritten notation: “If defendant 

successfully completes probation with no violations, [he] 

may apply to [the] court for misdemeanor treatment.”

When defendant completed his probation early in 

2006, he moved the Marion County Circuit Court for “an 

order reducing the charge in the present case from a felony 

to a misdemeanor.” In an affidavit attached to the motion, 

defendant explained that he was seeking reduction to a 

misdemeanor because he thought that would give him a 

better chance of obtaining employment. The state informed 

the court that it did not object, and the court, “having 

reviewed the files and records herein and good cause appearing,” issued an order on March 29, 2006, reducing defendant’s 

felony conviction to a misdemeanor.
4 State v. Stark

Some years later, in 2008, police discovered a handgun in defendant’s possession.1

 Defendant subsequently was 

charged, this time in Linn County Circuit Court, with being 

a felon in possession of a firearm, ORS 166.270. Before the 

matter came to trial, defendant moved in Marion County 

Circuit Court for a judgment “memorializing” that his 2004 

drug conviction had been for a misdemeanor. That court 

issued a judgment stating that “defendant [was] guilty of 

a misdemeanor *** and has been since ** * 2004.” Later, 

the court vacated that judgment and entered a different 

judgment that was worded in terms of granting defendant’s 

motion to reduce his felony conviction to a misdemeanor. 

The latter judgment, dated January 5, 2009, purported to 

be “nunc pro tunc” to March 29, 2006, the date of the order 

reducing the 2004 felony conviction to a misdemeanor.

At trial, defendant moved for a judgment of acquittal on the felon-in-possession charge, arguing that, in light

of the January 5, 2009, judgment that purported to retroactively reduce his conviction to a misdemeanor, the state 

could not establish that, at the time that he possessed the 

firearm in question, he was a “person who has been convicted 

of a felony.” ORS 166.270(1). Relying on the statutory definition of that phrase at ORS 166.270(3), which excludes 

circumstances in which “the court declared the conviction 

to be a misdemeanor at the time of judgment,” defendant 

argued that he was not a “person who has been convicted of 

a felony” at the time that he was alleged to have possessed 

the firearm. The trial court disagreed with defendant’s 

interpretation of ORS 166.270(3) and denied his motion for 

a judgment of acquittal. The felon-in-possession charge went 

to the jury, which found defendant guilty. 

Defendant appealed, arguing, among other things, 

that the trial court had erred in denying his motion for a 

judgment of acquittal. The Court of Appeals affirmed. The 

court concluded that, when ORS 166.270(3)(a) provides that 

a “conviction shall not be deemed a conviction of a felony if 

* * * the court declared the conviction to be a misdemeanor 

1 The gun was discovered in the course of a search of defendant’s car, which 

occurred when defendant was stopped by police while driving in Linn County. The 

validity of the search is not an issue before this court.
Cite as 354 Or 1 (2013) 5

at the time of judgment,” it refers only to declarations made 

at the time of the original judgment of conviction. Thus, the

court reasoned, once a judgment is entered convicting a 

person of a felony, a later order or judgment reducing that 

conviction to a misdemeanor cannot alter the person’s status 

as a felon for purposes of the felon-in-possession statute. 

State v. Stark, 248 Or App 573, 580, 273 P3d 941 (2012).

Before this court, defendant argues that that interpretation of ORS 166.270(3)(a) is incorrect. He contends that

the phrase “at the time of judgment” refers to the judgment

in effect at the time that the person charged with the crime

possessed the firearm. Employing that construction, defendant contends that his 2004 conviction was adjudged to be a 

misdemeanor conviction on March 29, 2006, before the felonin-possession issue arose. In that regard, defendant contends 

that the order issued by the Marion County Circuit Court on 

that date in fact was an erroneously labeled judgment, which 

error the same court corrected, retroactively, in its January 5,

2009, “nunc pro tunc” judgment. Thus, this case presents two

questions, one pertaining to the proper construction of ORS

166.270(3)(a), and one pertaining to the timing and effect 

of the March 29, 2006, order and the January 5, 2009, judgment issued by the Marion County Circuit Court. For obvious 

reasons, the latter question is relevant only if defendant’s 

construction of ORS 166.270(3)(a) is correct.

We approach the first (statutory construction) issue 

in our usual way, attempting to discern the legislature’s 

intent from statute’s text and context and any helpful legislative history. State v. Gaines, 346 Or 160, 171-72, 206 P3d 

1042 (2009). Our starting point is the text of ORS 166.270, 

which provides, in part:

“(1) Any person who has been convicted of a felony under

the law of this state or any other state, or who has been 

convicted of a felony under the laws of the Government of the 

United States, who owns or has in the person’s possession or 

under the person’s custody or control any firearm commits 

the crime of felon in possession of a firearm.

“*****

“(3) For purposes of this section, a person ‘has been convicted of a felony’ if, at the time of conviction for an offense, 
6 State v. Stark

that offense was a felony under the law of the jurisdiction 

in which it was committed. Such conviction shall not be 

deemed a conviction of a felony if:

“(a) The court declared the conviction to be a misdemeanor at the time of judgment[.]”

(Emphasis added.) The parties’ disagreement focuses on the 

emphasized wording, with the state reading the phrase “the 

time of judgment” to mean the time of the original judgment 

of conviction, and defendant reading it to mean the time of 

the judgment of conviction in effect when the person is found 

in possession of a firearm, including a judgment issued after 

the original judgment.

Generally speaking, a “judgment” is “the court’s final

determination of the rights and obligations of the parties 

in the case.” Black’s Law Dictionary 918 (9th ed 2009). 

ORS 18.005(8) defines “judgment,” as used in ORS chapter 

18, as “the concluding decision of a court on one or more 

requests for relief in one or more actions, as reflected in a 

judgment document.”2

 (Emphasis added.) Although each 

“judgment” that a court issues is, by definition, the “final” or

“concluding” determination of the matter decided, the fact 

is that a court may issue a subsequent “judgment” that 

supersedes the former—for example, a judgment to correct 

a prior judgment, ORS 138.083(1), to comply with an appellate court’s remand, or to reduce a felony conviction to a misdemeanor conviction after a convicted defendant’s successful 

completion of probation, ORS 161.705(d). Thus, when ORS 

166.270(3)(a) refers to “the time of judgment,” the question 

may arise: “Which judgment?”

Defendant argues that, as used in ORS 166.270(3)(a),

the term “judgment” denotes the last and, thus, final, judgment that a court has entered at the time of the act that 

constitutes the other necessary element of the crime of felonin-possession—possessing a firearm. Defendant contends 

that, if the legislature had intended to refer to something 

2 Although the definition of “judgment” in ORS 18.005(8) by its terms applies 

to ORS chapter 18, a judgment document in a criminal action must comply with 

ORS 18.038 and meet other statutory requirements. ORS 137.071(2).
Cite as 354 Or 1 (2013) 7

other than the judgment in effect at the time of possession, 

it would have identified the intended time more specifically.

The state counters that, in this statutory context, 

the word “judgment” in ORS 166.270(3)(a) necessarily refers 

to the original judgment entered at the time of conviction. 

The state derives that conclusion from the repeated use of 

the definite article “the” in the phrase “the court declared 

the conviction to be a misdemeanor at the time of judgment.” 

(Emphases added.) In the state’s view, that phrasing shows

that the legislature had in mind a declaration by a particular

court at a particular time, and not any judgment that a court 

might later enter. The state further argues that, because 

the introductory wording that precedes ORS 166.270(3)(a)

refers to “the time of conviction for an offense,” it is reasonable to assume that the legislature had that same time in 

mind when it referred in paragraph (3)(a) to “the time of 

judgment.”

The state is correct that ORS 166.320(3) includes the 

phrase “at the time of conviction”: It provides that a person 

“has been convicted of a felony if, at the time of conviction

for an offense, that offense was a felony under the law of the 

jurisdiction in which it was committed.” (Emphasis added.) 

Paragraph (3)(a) then provides that a conviction shall not be

deemed a felony conviction if the court declared the person’s 

conviction to be a misdemeanor “at the time of judgment.” 

As we see it, the “time of conviction” phrase in subsection (3) 

only relates to the condition necessary to make a conviction 

a felony conviction (the offense must be a felony under the 

law of the jurisdiction in which it was committed at the time 

it was committed) and not to the exemption in paragraph 

(3)(a) for a felony conviction that a court has declared to 

be a misdemeanor. In fact, the legislature’s use of entirely 

different time references in those provisions may indicate 

that the legislature did not equate “the time of conviction” 

with “the time of judgment.”

Thus, although we agree with the state that the 

phrasing of ORS 166.270(3)(a) suggests an intent to refer to a 
8 State v. Stark

particular time, we do not think that the legislature intended 

to require that a court’s declaration occur only “at the time 

of conviction.” So understood, the legislature’s phrasing is 

not contrary to defendant’s proposed interpretation. Under 

defendant’s interpretation, a court may make the necessary 

declaration not only when the court first enters a judgment 

of conviction, but also when the court enters a subsequent 

judgment categorizing the conviction as a misdemeanor. In 

either circumstance, the court declares the conviction to be a 

misdemeanor at the time of judgment.

Defendant’s interpretation becomes even more compelling, and the state’s less so, when considered in the context of other statutes that were in effect at the time that 

ORS 166.270(3)(a) was enacted.3

 Two of those statutes are

particularly relevant—ORS 161.585 (1987)4 and ORS 161.705 

3 ORS 166.270(3)(a) was enacted, in its present form, in 1989. Or Laws 1989, 

ch 839, § 4. 

4 ORS 161.585 (1987) provided:

“(1) When a crime punishable as a felony is also punishable by imprisonment for a maximum term of one year or by a fine, the crime shall be classed 

as a misdemeanor if the court imposes a punishment other than imprisonment 

under ORS 137.124(1).

“(2) Notwithstanding the provisions of ORS 161.525, upon conviction of 

a crime punishable as described in subsection (1) of this section, the crime is 

a felony for all purposes until one of the following events occurs, after which 

occurrence the crime is a misdemeanor for all purposes:

“(a) Without granting probation, the court imposes a sentence of imprisonment other than to the legal and physical custody of the Department of 

Corrections.

“(b) Without granting probation, the court imposes a fine.

“(c) Upon revocation of probation, the court imposes a sentence of imprisonment other than to the legal and physical custody of the Department of 

Corrections.

“(d) Upon revocation of probation, the court imposes a fine.

“(e) The Court declares the offense to be a misdemeanor, either at the time

of granting probation, upon suspension of imposition of sentence, or on application of defendant or the probation officer of the defendant thereafter.

“(f) The court grants probation to the defendant without imposition of sentence upon conviction and defendant is thereafter discharged without sentence.

“(g) Without granting probation and without imposing sentence, the court 

declares the offense to be a misdemeanor and discharges the defendant.”

ORS 161.585 (1987) was amended by the same legislature that enacted the present 

wording of ORS 166.270(3)(a), to make it applicable “only to persons convicted of a

felony committed prior to November 1, 1989.” Or Laws 1989, ch 790, § 52. Subsequent legislatures made minor changes that are not relevant to the present issue. 

Or Laws 1993, ch 14, § 18; Or Laws 2005, ch 264, § 15. 
Cite as 354 Or 1 (2013) 9

(1987).5 Under both of those statutes, certain crimes that otherwise would be classified as felonies could, under described 

circumstances, be classified as misdemeanors. ORS 161.585 

(1987) generally addressed the effect of certain sentencing 

decisions on the conviction’s classification. Paragraphs (2)(a) 

to (d) and (f) of that statute provided that a felony conviction 

could be reduced to a misdemeanor conviction at the time of, 

and by virtue of, sentencing decisions and subsequent events 

that effectively precluded imprisonment in a Department 

of Corrections facility. Those paragraphs did not require a 

particular decision by the court that the offense should be 

treated as a misdemeanor; rather, the reduction occurred 

by operation of law. In contrast, ORS 161.585(2)(e) and (g) 

(1987) provided that a court could decide to reduce a felony 

conviction to a misdemeanor conviction by imposing no 

sentence or a sentence other than imprisonment and then 

expressly “declar[ing]” the conviction to be a misdemeanor. 

At least one of those provisions—paragraph (2)(e)—contemplated that the court could make such a declaration after 

the original judgment of conviction and sentence.

ORS 161.705 (1987) also gave (and continues to 

give) a trial court authority to reduce a felony conviction to a

misdemeanor conviction, but did so by authorizing the court

5 ORS 161.705 (1987) provided:

“(1) Notwithstanding ORS 161.525, the court may enter judgment of 

conviction for a Class A misdemeanor and make disposition accordingly when:

“(a) A person is convicted of any Class C felony; or

“(b) A person is convicted of a Class B felony pursuant to ORS 475.992(2)(a);

or

“(c) A person is convicted of the Class B felony of possession of marijuana 

pursuant to ORS 475.992(2)(4)(a); or 

“(d) A person convicted of any of the felonies described in paragraph (a) 

to (c) of this subsection, or of a Class A felony pursuant to ORS 166.720, has 

successfully completed a sentence of probation; and 

“(e) The court, considering the nature and circumstances of the crime and 

the history and character of the defendant, believes that it would be unduly 

harsh to sentence the defendant for a felony.

“(f) This section does not apply, however, in cases subject to ORS 475.995.”

ORS 161.705 has since been amended (1) to remove the exception set out 

in paragraph (f) above, Or Laws 2005, ch 708, § 48; and (2) to clarify that the 

additional requirement set out at paragraph (e), that is, the requirement that the 

court believe that it would be unduly harsh to sentence the defendant for a felony, 

applies to each of the four preceding paragraphs, Or Laws 2009, ch 610, § 2.
10 State v. Stark

to “enter a judgment” altering the classification of a defendant’s offense: Such reduction could occur only if the trial 

court, considering the circumstances, thought “that it would 

be unduly harsh to sentence the defendant for a felony.” ORS 

161.705(1)(e) (1987).

Those statutes demonstrate that, before 1989 when 

the current version of ORS 166.270(3)(a) was enacted, a 

judgment convicting a defendant of a felony and imposing 

a sentence of probation could be superseded, in certain 

circumstances, by a later declaration or judgment entered 

after the sentence of probation was completed, changing the 

conviction to a misdemeanor. The 1989 legislative assembly 

that enacted the present version of ORS 166.270(3) presumably was aware of those statutes and the possibility that a 

subsequent judgment could reduce what originally had been 

adjudged a felony conviction to a misdemeanor conviction. 

See State v. Reams, 292 Or 1, 8, 636 P2d 913 (1981) (court 

assumes that the legislature, at time of adoption of new 

criminal code, was aware of existing law in Oregon on subject); State v. Waterhouse, 209 Or 424, 436, 307 P2d 327 

(1957) (“Knowledge on the part of the legislature of * ** 

earlier enactments is presumed”). Cf. State v. Clevenger, 297 

Or 234, 244, 683 P2d 1360 (1984) (legislature is presumed 

to be aware of the Supreme Court’s decisions). Insofar as the 

unmodified term “judgment” can pertain to both original 

and subsequent judgments, it would seem that, if the 1989 

legislative assembly had intended to make only the original 

felony judgment, and not the subsequent misdemeanor judgment, relevant to a determination of a person’s status as

a felon for purposes of that statute, it would have signaled 

that intent instead of using the more general term “judgment.”6

 The legislature’s omission of any such signal, in 

that statutory context, suggests that the legislature did not

intend that the term “judgment” mean only the original 

judgment.7

6 We note, in that regard, that when courts refer to judgments other than the 

most recent and, thus, most final judgment, they tend to use more specific terms, 

such as “original judgment.” See, e.g., State v. Ainsworth, 346 Or 524, 526, 213 P3d 

1225 (2009) (referring to “original judgment”); State v. Estey, 247 Or App 25, 27, 

268 P3d 772 (2011) (same).

7 The 1989 legislative assembly that enacted the current wording of ORS 

166.270(3)(a) also presumably would have been aware that any judgment of 
Cite as 354 Or 1 (2013) 11

The state identifies another statute, ORS 166.274, 

as relevant context for interpreting the phrase “the time of 

judgment” in ORS 177.270(3)(a). That statute provides that 

a person who is barred from possessing a firearm under 

ORS 166.270 may file a petition for relief from the bar in 

the circuit court for the person’s county of residence, ORS 

166.274(1), (2), and may be granted such relief if he or she 

demonstrates, “by clear and convincing evidence, that the 

petitioner does not pose a threat to the safety of the public or 

the petitioner,” ORS 166.274(7). The state argues that that 

provision demonstrates that the legislature intended that 

convicted felons follow that prescribed procedure to have 

their gun-possession rights restored and that defendant’s 

expansive reading of ORS 166.270(3)(a) would frustrate 

that legislative intent by allowing felons to obtain relief 

simply by requesting misdemeanor treatment.

The state’s argument has the tail wagging the dog: 

It seeks to treat a clearly secondary statute, pertaining to 

relief from the prohibition on felons possessing firearms, as 

dictating the meaning of the prohibition itself (and the crime 

that results from its violation). There is no reason to think 

that the legislature’s intent that “any person who has been 

convicted of a felony” be required to follow the procedure at 

ORS 166.274 to have their gun-possession rights restored 

conviction of a felony could be overturned or set aside by a higher court, and that

such a court might even enter a judgment reducing the conviction to a misdemeanor. 

But if the state’s interpretation of the wording is taken to its natural conclusion, 

a subsequent appellate judgment would not be relevant in determining whether a

person “has been convicted of a felony” for purposes of ORS 166.270. The state suggests that that would not be so because, if set aside, a felony conviction is treated 

as void ab initio. But this court rejected a similar argument in Bailey v. Lampert, 

342 Or 321, 153 P3d 95 (2007), when the defendant in that case sought to set aside 

his felon-in-possession conviction on the ground that, subsequent to the felonin-possession conviction, the underlying felony conviction had been reversed. 

The defendant argued that, because the underlying felony conviction was void

ab initio, he had never been a “person who ha[d] been convicted of a felony” within 

the meaning of ORS 166.270. This court concluded that, in ORS 166.270, “the 

legislature intended to, and did, focus on a person’s status at the time that he or 

she possessed a firearm,” even if that status might later change because the prior 

felony conviction is reversed or set aside. Id. at 327. Although Bailey does not 

address the particular subsection of the statute that is at issue in the present case, 

it demonstrates that, if the state were correct that the statute refers to only the 

time of the original judgment, a person whose conviction was later overturned by 

a court nevertheless would be a person who “has been convicted of a felony:” The 

person could not claim that the original conviction was void ab initio.
12 State v. Stark

had any bearing on its thinking about who would qualify as 

a “person who has been convicted of a felony.” The legislature 

could have decided that a trial court’s reduction of a felony 

conviction to a misdemeanor should remove that person 

from the prohibition on firearm possession at ORS 166.270 

altogether, and at the same time reasonably could have 

provided a path for persons who remain felons for purposes 

of the statute to restore their prior right to possess firearms.

Although, at this point, the textual and contextual 

clues point to the interpretation of ORS 166.270(3)(a) for 

which defendant contends, we still have not addressed the

legislative history that the state has brought to our attention. 

Gaines, 346 Or 171-72. We turn to that legislative history 

now.

As we briefly noted above, 354 Or at 8 n 3, ORS 

166.270(3)(a) was enacted in its current form in 1989. Before 

then, subsections (1) and (2) of ORS 166.270 were similar to 

their current versions, but subsection (3) provided:

“For the purposes of this section, a person ‘has been 

convicted of a felony’ if, at the time of conviction for an 

offense, that offense was a felony under the law of the 

jurisdiction in which it was committed. Provided, however, 

that such conviction shall not be deemed a conviction of a 

felony if:

“(a) At the time of conviction, and pursuant to the law 

of the jurisdiction in which the offense occurred, the offense 

was made a misdemeanor by the type or manner of sentence 

actually imposed.”

(Emphasis added.) The original 1989 bill to amend ORS 

166.270, HB 3470, would simply have removed all the 

italicized wording, abolishing the then-existing exception 

for reductions from felony to misdemeanor status made “by 

the type or manner of sentence actually imposed.” One of the 

proponents of that change, Sheriff Burks of Lane County, 

explained to the House Judicial Committee that the change 

was proposed because members of the law enforcement community were

“concerned about the definition of a felon * * * [because] 

there apparently are certain circumstances when people are 
Cite as 354 Or 1 (2013) 13

convicted [as] felons but sentenced as ** * misdemeanant[s], 

and we wanted to eliminate that possibility. If they’re 

convicted of a felony, then they are a felon, that’s what we 

wanted.”

Tape Recording, House Judiciary Committee, Natural 

Resources Subcommittee, HB 3470, May 10, 1989, Tape 23, 

Side A (statement of Sheriff Burks).

However, as the bill went through the Senate 

Judiciary Committee, it was modified to provide a new and 

different exception to the broader definition of a “person 

[who] has been convicted of a felony”—the one that now 

appears in paragraph (3)(a) and that is the subject of this 

review:

“(3) *** Such conviction shall not be deemed a conviction of a felony if:

“(a) The court declared the conviction to be a misdemeanor at the time of judgment[.]”

When the modified wording was introduced to the Senate 

Judiciary Committee, the committee’s legislative counsel, 

Morris, explained at length that a felony conviction could 

become a misdemeanor either through the type of sentence 

imposed or by the trial court declaring the misdemeanor

to be a felony, and that, under the then-existing felon-inpossession statute, if a felony conviction became a misdemeanor under either method, then the felon-in-possession 

statute did not apply. Tape Recording, Senate Judiciary 

Committee, HB 3470, June 30, 1989, Tape 259, Side A 

(statement of Counsel Morris). Morris went on to explain 

how the original bill (which entirely removed the exception 

he had described) and the amended bill would operate if 

enacted:

“What the bill as it came to us did would abolish 

things becoming misdemeanors by operation of law, and, 

arguably—it’s unclear—abolish the * ** effect on the firearms law when the judge declares it a misdemeanor.

“What we’ve done with the changes from yesterday 

and today, we’ve made it so if a [conviction] becomes a 

misdemeanor by operation of law, you’re still in trouble for 

the gun laws. But we’ve made it clear, and you’ll see the 
14 State v. Stark

new language on lines 15 and 26, that if the court feels 

that special circumstances exist that justify declaring it a 

misdemeanor, you’re in good shape for the gun law.”

Id. Finally, in response to a question about why the amended 

bill drew that distinction, Morris stated:

“We felt that when a felony becomes a misdemeanor by 

operation of law, that it does not justify getting the person 

back in good shape for the gun law. But if a judge thinks that 

circumstances are such that it should be a misdemeanor 

from jump street, then you should be okay for gun laws. 

So we basically took the middle ground with the changes 

that we’ve made, as opposed to bringing everybody into the 

[felon] in possession statute as the bill did.”

Id.

Defendant observes that a persistent theme runs 

through all the discussions of the existing statute and the 

proposed changes quoted above: The idea that a felony conviction may become a misdemeanor conviction either by 

operation of law or by an act of judicial discretion. Defendant 

contends that it is clear from the quoted history that, when 

the legislature finally settled on the wording that became the 

present statute, it intended to draw a line between the two 

methods, excepting from the prohibition in the statute only 

those persons whose felony convictions had been reduced to 

misdemeanors through an act of judicial discretion.

The state argues, however, that one of Morris’s 

last statements to the Senate Judiciary Committee—that 

a defendant “should be ok for gun laws” if a judge “thinks 

that circumstances are such that [a felony] should be a 

misdemeanor from jump street”8—shows that the exception 

to the felon-in-possession law that the legislature intended 

to enact was more narrow: It intended to except only persons 

whose felony convictions were specifically declared by the 

court to be misdemeanors at the outset. Thus, according to the 

state, the phrase “the time of judgment” in ORS 166.270(3)(a)

must refer to the time of the judgment that was issued when 

defendant first was convicted and sentenced.

8 According to Richard A. Spears, Dictionary of American Slang and Colloquial 

Expressions (4th ed 2007), “jump street” means “the beginning; the start (of something) * ** : Way back at jump street, I spotted you as a troublemaker.”
Cite as 354 Or 1 (2013) 15

We agree with defendant, however, that the fleeting 

“jump street” reference in Morris’s statement is inadequate 

support for the state’s interpretation of the phrase in ORS 

166.270(3)(a). First, there is some possibility that Morris was 

simply attempting to provide an example of a circumstance 

in which a judge’s decision to reduce a defendant’s conviction 

to a misdemeanor could remove the defendant from the 

reach of ORS 166.270. In that regard, we note that, although 

Morris explained that, “if a judge thinks that circumstances 

are such that it should be a misdemeanor from jump street, 

then [a person] should be okay for gun law,” he did not state 

that a similar determination made in other circumstances 

should not be treated similarly. Furthermore, in the context

of Morris’s overall comments, the “jump street” reference is

an anomaly. Morris had explained the bill and its antecedents entirely in terms of the distinction between the two

ways in which a felony conviction might become a misdemeanor conviction (by operation of law and by judicial declaration), and had never suggested that an additional distinction—based on the timing of a judicial declaration reducing 

a conviction to misdemeanor status—was relevant.9

 It follows that Morris’s comments about the effect of the proposed amendments to ORS 166.270(3), although useful for

determining what the legislature intended with respect to 

Morris’s primary point (the distinction between reductions 

to misdemeanor status occurring by operation of law and

by considered judicial declaration), do not reflect the legislature’s thinking with respect to the timing of any judicial 

declaration reducing a felony conviction to a misdemeanor 

conviction.

9 It is true that, earlier in his comments, Morris had also stated that the 

“judicial declaration” method of reducing a felony conviction to a misdemeanor 

conviction occurred “at the time of sentencing.” However, the statutes in effect at 

the time in fact clearly contemplated that a felony conviction could be reduced to a 

misdemeanor by judicial declaration at the time of sentencing or at a later time. See 

ORS 161.585(2)(e) (1987) (court could declare an offense to be a misdemeanor at 

time court grants probation “or thereafter”); ORS 161.705(1)(d) (1987) (court may

enter judgment for misdemeanor when person convicted has successfully completed sentence of probation, if court believes felony conviction is unduly harsh). 

We assume that the legislature had a correct understanding of the existing law, 

and the legislative history does not establish that the legislature relied on Morris’s 

misstatement.
16 State v. Stark

The state argues that Morris’s comments are significant for another reason: They show that the legislature considered the wording of the amended bill (which was enacted) 

to be a “middle ground” between the then-existing exception 

and the proposal in the original bill to entirely eliminate that 

exception. The state contends that post-sentencing reductions from felony to misdemeanor status were not an option 

under the then-existing statutory exception and that, in light 

of that fact, “neither Morris—nor the legislature—would 

have understood that option to be part of the compromise.”

There are at least two problems with the state’s argument. First, it assumes a point that is far from established—

that post-conviction reductions were not an option under the 

law that existed prior to the 1989 amendments. Although 

the state plausibly interprets the words of the pre-1989 version of ORS 166.270(3) as excepting only reductions to misdemeanor status occurring at the time of an original judgment (because the reduction had to occur “at the time of 

conviction” through the “sentence actually imposed”), that is

not the only reasonable interpretation of that statute, at 

least when the statute is read in the context of other statutes 

that were in existence at the time.10

Second, although Morris spoke of the amended version of HB 3470 as a “middle ground,” he never specifically 

identified the pre-1989 version of ORS 166.270 as one of 

the baselines for that assessment. It is conceivable that he 

was referring to a “middle ground” between Sheriff Burks’ 

position that, “if they are convicted of a felony, then they are 

a felon” and cannot possess a firearm, and the position that, 

if a felony conviction is reduced to a misdemeanor—whether 

by a judge or by operation of law—the person is no longer 

deemed to be a felon and is permitted to possess a firearm. 

10 As we already have noted, 354 Or at 8-10, two statutes then in existence 

authorized post-sentencing reduction of a felony conviction to misdemeanor status. 

In the absence of any clear decision to the contrary, it was at least arguable that, in 

1989, ORS 166.270(3) (1987) spoke to only reductions that occurred by operation of 

law as a result of the “sentence actually imposed” and did not pertain to or affect 

a trial court’s separate authority to declare a reduction to misdemeanor status 

under those statutes. Morris might have been speaking to that possibility when he 

testified that, if the legislature adopted the amendment as originally proposed, it 

would only “arguably—it’s unclear, abolish the * ** effect on the firearms law when 

the judge declares it a misdemeanor.” 
Cite as 354 Or 1 (2013) 17

The position that the legislature adopted—that only a person 

whose felony conviction was reduced to a misdemeanor by 

a judge may possess a firearm—clearly would fall into the 

middle ground between those two positions.

In summary, Morris’s “jump street” and “middle 

ground” comments do not convince us that the state’s interpretation of ORS 166.270(3)(a) is the correct one. The only 

conclusion that we legitimately can draw from Morris’s 

testimony is that, in enacting the amended version of HB 

3470, the legislature recognized that a felony conviction 

could be reduced to a misdemeanor by operation of law or by a 

considered judicial declaration, and the legislature intended 

to except from the operation of the felon-in-possession statute 

only convictions reduced by the latter method. Thus, the 

legislative history that the parties have offered is consistent 

with the conclusion that we have tentatively drawn from 

the text and context of ORS 166.270(3)(a). The legislature 

used the general term “judgment” and not a qualified term

such as “original judgment.” Particularly because the legislature was aware that the law permitted courts to enter 

subsequent judgments declaring a prior felony conviction to 

be a misdemeanor, we would have expected the legislature 

to explicitly exclude such judgments from the exception to 

the felon-in-possession statute if that is what it intended. 

For all those reasons, we conclude that the phrase “at the 

time of judgment” in ORS 166.270(3)(a) refers to the time of 

the judgment of conviction that was in effect at the time of 

the alleged firearm possession.

Having settled that interpretive issue, we must 

determine whether defendant was a person who “has been 

convicted of a felony” at the time that he possessed the 

firearm in question. Because ORS 166.270(3)(a) provides 

that a conviction shall not be deemed a felony conviction if, 

“at the time of judgment,” the court declared the conviction 

to be a misdemeanor, it is clear that the court’s declaration 

must be incorporated into or concurrent with a judgment

to fall within the scope of the exception. And, because ORS 

166.270 is concerned with a person’s status as a felon at the 

time that he or she possessed the firearm, it requires that 
18 State v. Stark

the judgment incorporating or concurrent with the declaration be in effect when the person possesses the firearm. 

See Bailey v. Lampert, 342 Or 321, 327, 153 P3d 95 (2007) 

(judgment setting aside a felony conviction issued after time 

of possession of firearm did not negate defendant’s status as 

a felon at the time he possessed the firearm).

When police found a gun in defendant’s car in 2008,

the only judgment in the record in the 2004 Marion County 

case was the original judgment, finding defendant guilty of 

felony possession of a controlled substance and sentencing 

defendant to a term of probation. The record also contained 

an order, issued on March 29, 2006, that granted defendant’s 

motion for an order reducing his felony conviction to a misdemeanor. However, at the time that the order was entered, it 

was not incorporated in or concurrent with a judgment.

11 It 

was not until after the gun was discovered and defendant 

was charged under ORS 166.270 that the Marion County 

Circuit Court issued, on defendant’s motion, a judgment 

reducing the felony conviction to a misdemeanor. The judgment specified that the reduction was nunc pro tunc to the 

date of the March 29, 2006, order.

Without the nunc pro tunc provision, the latter judgment clearly could not advance defendant’s effort to place 

himself within the exception at ORS 166.270(3)(a): ORS 

166.270 is concerned with a person’s status as a felon at the

time he or she possesses a firearm, even if that status might

change at some later point. Bailey, 342 Or at 327-28. Defendant argues, however, that the nunc pro tunc wording 

made all the difference: It meant that a judgment declaring 

defendant’s 2004 felony conviction to be a misdemeanor was 

in effect in 2008 before he possessed a firearm.

11 Defendant may have thought that the order was sufficient to nullify his felony 

conviction for purposes of the felon-in-possession statute. But the fact remains 

that the exception set out in ORS 166.270(3)(a) requires that the declaration 

reducing a felony conviction to a misdemeanor be made “at the time of judgment.” 

Although it may seem unfair, defendant’s belief that he was a misdemeanant, not 

a felon, is irrelevant under ORS 166.270: As this court recently stated in State 

v. Rainoldi, 351 Or 486, 506, 268 P3d 568 (2011), that statute “exhibits a clear 

legislative intent to dispense with the culpable mental state requirement as to the 

element that a defendant ‘has been convicted of a felony.’”
Cite as 354 Or 1 (2013) 19

In that regard, defendant observes that, in its 

original judgment, the Multnomah County Circuit Court 

expressly invited defendant to apply for misdemeanant 

status upon completion of probation and followed through on

its offer to reduce the conviction to a misdemeanor in its 

March 29, 2006, “order.” Defendant argues that, given that

sequence of events, the court’s “order” in fact was a “judgment”—the court’s final decision on defendant’s status as

a felon. Defendant also suggests that ORS 161.70512 requires

trial courts to issue any decision reducing a felony conviction 

to a misdemeanor conviction as a superseding judgment. 

From that standpoint, defendant argues that, regardless of 

the facts that he, himself, moved for “an order reducing the 

charge in the present case from a felony to a misdemeanor” 

and that the trial court captioned its decision on that 

motion as an “order,” the decision in fact was a “judgment,” 

and the caption that appeared on the document memorializing that judgment was a mistake. Finally, defendant 

contends that the circuit court’s 2009 entry of a properly 

captioned judgment reducing defendant’s conviction from a 

felony to a misdemeanor “nunc pro tunc March 29, 2006,” was

a proper exercise of the court’s inherent power to “correct

clerical errors at a later time so that the record reflects what

actually occurred at an earlier time.” State ex rel Juv. Dept. 

v. Dreyer, 328 Or 332, 339, 976 P2d 1123 (1999). In other 

words, defendant argues, the 2009 nunc pro tunc judgment 

establishes that the March 29, 2006, “order” in fact was a 

judgment declaring defendant’s felony conviction to be a 

misdemeanor.

We have stated that

“[t]he function of a nunc pro tunc entry is to make a record 

of what was previously done, but not then entered; not to 

make an order now for then, but to enter now for then an 

order previously made. * ** Such an order is effective only 

when it records a previously omitted truth—it does not 

create, but only speaks what has been done.”

12 Defendant adverts to the current version of ORS 161.705, which in all relevant respects is identical to the 1987 version of that statute, set out above, 354 Or 

at 9 n 5.
20 State v. Stark

Gillespie v. Kononen, 310 Or 272, 276 n 7, 797 P2d 361 (1990).

Although defendant pays lip service to that rule by describing the 2009 nunc pro tunc judgment as correcting a mere 

labeling error, neither the facts, nor defendant’s explanation, 

supports that description.

Certainly, there is no basis for arguing that the 

2006 order comported with the formal requirements of a 

judgment in a criminal action. ORS 137.071(2) requires a

judgment document in a criminal action to comply with 

ORS 18.038 and to provide additional specific information 

about various aspects of the proceedings and the court’s 

decisions, including a clear specification of the court’s disposition for each charge. To comply with ORS 18.038, the 

judgment document must “be plainly titled as a judgment.” 

ORS 18.038(1). The 2006 order is not so titled. It is titled 

an “order” and is expressed entirely in terms of granting a 

motion: “It is hereby ordered that Defendant[’s] motion to 

reduce [his] felony conviction to a misdemeanor is granted.” 

The order also contains none of the additional information 

required of judgment documents by ORS 137.071(2).

Defendant suggests that such formalities are irrelevant—that the proper focus is on the trial court’s decision

and not the document that memorializes it. He contends 

that the trial court’s decision on March 29, 2006, was, in 

every respect, a judgment that finally disposed of his 2004 

conviction, and that the 2009 “nunc pro tunc” judgment 

merely recognizes that “truth” by correcting the original, 

erroneous documentation of that decision. But defendant 

does not point to any evidence in the record showing that 

the court’s decision (as opposed to the documentation of 

the decision) in fact was a judgment.13 Defendant does not 

assert, for instance, that he had sought a “judgment” in 

2006 or that, due to a clerical error, the word “order” was 

mistakenly used even though the trial court indicated that 

13 We understand the distinction that defendant is attempting to make, but 

we are not persuaded that it can have any real world significance in this context. 

By definition, a court’s “judgment” is reflected in a “judgment document.” See ORS 

18.005(8) (“‘judgment’ means the concluding decision of a court on one or more 

requests for relief in one or more actions, as reflected in a judgment document”); 

ORS 137.071(2) (requiring that judgment document in criminal action comply with 

ORS 18.038). Those statutes would seem to make it difficult, if not impossible, to 

show that a decision that is not memorialized in a judgment in fact is a judgment.
Cite as 354 Or 1 (2013) 21

a “judgment” should be entered. Instead, defendant asserts 

that the decision should have been issued as a judgment, 

because (1) ORS 161.705 provides that, to reduce a conviction 

to a misdemeanor under paragraph (1)(d) after a defendant 

successfully completes probation, the court is “required” to 

enter a superseding judgment; and (2) the decision was the 

court’s final determination resolving the issue of the proper 

classification of defendant’s conviction. But even if those 

assertions were based on correct statements of the law,14 they 

would not assist defendant. That is so because they speak to 

what defendant should have requested and what the court 

should have done, rather than what defendant did in fact 

request and what the court did in fact do. They do not establish that the 2009 judgment “record[ed] a previously omitted truth,” as a nunc pro tunc entry must. Gillespie, 310 Or 

at 276 n 7.

We conclude that the nunc pro tunc wording in the

circuit court’s 2009 judgment did not, and could not, transform its prior 2006 order into a judgment. It follows that, 

when police found a gun in defendant’s possession in 2008, 

the only judgment in effect was the original judgment convicting defendant of a felony. The trial court did not err 

in denying defendant’s motion for a judgment of acquittal, 

which was based on the theory that defendant was not a 

felon within the meaning of ORS 166.270(3) at the relevant 

time.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

14 As we understand them, defendant’s assertions are not based on correct 

statements of the law. Insofar as ORS 161.705 provides that a court “may enter 

judgment of conviction for a Class A misdemeanor” in the described circumstances, 

it clearly does not “require” entry of a judgment. And, whether or not the trial 

court’s decision had the effect of finally disposing of an issue in the criminal action 

against defendant depends, at least in part, on whether it in fact was a judgment.