STATE v. BROWN

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Docket Number

100559

Attorney(S)

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem. Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and Jacob B. Tanzer, Solicitor General, Salem.

Judges

FOLEY, J.

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Smart Summary

Factual and Procedural Background

Defendant Royce Lovell Brown was previously convicted of carrying a concealed weapon under ORS 166.240. Subsequently, he was convicted of a separate offense—being a convicted person in possession of a concealable firearm under ORS 166.270—based on the same incident involving a .32 caliber pistol. Brown appealed the latter conviction on two grounds: first, that his plea of double jeopardy should have been accepted; and second, that he was not a "convicted person" at the time of the second charge because his prior felony conviction was still on appeal and thus not final.

Legal Issues Presented

Whether the defendant’s plea of double jeopardy barred conviction for being a convicted person in possession of a concealable firearm when he had already been convicted of carrying a concealed weapon based on the same occurrence.
Whether a defendant whose prior felony conviction is pending on appeal can be considered a "convicted person" for purposes of enhanced firearm possession statutes.

Arguments of the Parties

Appellant's Arguments

The plea of double jeopardy should be allowed because both convictions arose from the same incident involving a single firearm.
The defendant should not be considered a "convicted person" because his prior felony conviction was not final, pending appellate review at the time of the second charge.

Respondent's Arguments

The double jeopardy claim fails because the two offenses require proof of different facts and thus can be separately prosecuted and convicted.
The defendant qualifies as a "convicted person" despite the pending appeal, consistent with Oregon precedent and policy considerations underlying firearm possession prohibitions for felons.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Miller, 5 Or. App. 501, 484 P.2d 1132 (1971)	Holding that convictions based on different facts arising from the same incident do not violate double jeopardy.	Used to reject the defendant’s double jeopardy claim, affirming that the two convictions were valid because they required proof of different facts.
Annotation, 5 ALR2d 1080 (1949)	Majority rule that a conviction is not final for enhanced penalty statutes while an appeal is pending.	Cited to acknowledge the general weight of authority but distinguished Oregon’s approach.
State v. Romero, 1 Or. App. 217, 461 P.2d 70 (1969)	Oregon’s position that a conviction pending appeal may still be treated as final for enhanced penalty purposes.	Supported the court’s holding that the defendant was a "convicted person" despite the pending appeal.
State v. Holbert, 1 Or. App. 552, 464 P.2d 834 (1970)	Similar to Romero, affirming treatment of convictions pending appeal as final in certain contexts.	Reinforced the court’s reasoning on the status of convictions pending appeal.
State v. Steffes, 2 Or. App. 163, 465 P.2d 905 (1970)	Review denied; supports Oregon’s minority view on conviction finality pending appeal.	Further authority cited for the court’s approach on conviction status.
Annotation, 71 ALR2d 593 (1960)	Majority rule that pendency of appeal does not affect conviction for purposes of declaring public office vacant.	Used to analogize and support the court’s position on conviction status for firearm possession prohibitions.
Annotation, 79 ALR2d 866 (1961)	Majority rule that pendency of appeal does not affect suspension of motor vehicle operator’s license upon conviction.	Further policy support for treating convictions as final despite appeals in related areas.
21 Am Jur2d 560-69, Criminal Law § 619	Legal principles regarding effect of appeals on conviction status.	Provided doctrinal support for the court’s analysis.

Court's Reasoning and Analysis

The court first examined the double jeopardy claim, relying on the Oregon Supreme Court’s prior ruling in State v. Miller that convictions arising from the same incident but requiring proof of different facts are permissible. Since carrying a concealed weapon and being a convicted person in possession of a concealable firearm involve distinct elements, the court found no double jeopardy violation.

Regarding the defendant’s status as a "convicted person," the court considered the impact of the pending appeal of the prior felony conviction. While the majority rule in many jurisdictions holds that a conviction is not final during appeal for enhanced penalty statutes, Oregon follows a minority rule treating such convictions as final for analogous purposes. The court cited Oregon cases (Romero, Holbert, and Steffes) and policy considerations underlying firearm possession prohibitions to conclude that the pendency of an appeal does not negate the defendant’s status as a convicted person. This approach aligns with other Oregon legal contexts where conviction status affects legal consequences despite pending appeals.

Holding and Implications

The court affirmed the defendant’s conviction. It held that (1) the double jeopardy clause did not bar separate convictions for carrying a concealed weapon and being a convicted person in possession of a concealable firearm because the offenses require proof of different facts, and (2) a defendant whose prior felony conviction is pending on appeal may still be considered a "convicted person" under Oregon law for purposes of firearm possession prohibitions.

The direct effect is the upholding of the defendant’s conviction. The opinion does not establish new precedent beyond confirming Oregon’s minority position on conviction finality pending appeal in this context.

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STATE OF OREGON, Respondent, v. ROYCE LOVELL BROWN, Appellant.

FOLEY, J.

Defendant, having previously been convicted of carrying a concealed weapon, ORS 166.240, was convicted of the separate crime of being a convicted person in possession of a concealable firearm, ORS 166.270. Both convictions were based upon a single occurrence involving a .32 caliber pistol. Defendant appeals, asserting, first, his plea of double jeopardy should have been allowed. Second, he claims the court erred in finding that he was a "convicted person" since his only prior felony was on appeal and thus not a final conviction at the time he was charged with being a convicted person in possession of a concealable firearm.

Concerning defendant's first assignment, his claim of double jeopardy, we held, pursuant to prior holdings of the Oregon Supreme Court, in State v. Miller, 5 Or. App. 501, 484 P.2d 1132, Sup Ct review denied (1971), on identical facts that since the two convictions required proof of different facts, conviction of carrying a concealed weapon did not preclude a subsequent conviction for ex-convict in possession of a concealable weapon.

We come now to defendant's second assignment of error, that because the judgment of conviction was on appeal the court erroneously considered that defendant was a "convicted person." Defendant contends that until his conviction is affirmed by an appellate court, he is not a convicted person. An Annotation in 5 ALR2d 1080 (1949) on what constitutes a former conviction within the enhanced penalty statutes does state that by the weight of authority a defendant is not considered as having been convicted pending determination of the appeal proceedings:

"According to the weight of authority, where an appeal has been taken from the trial court to the appellate court * * * defendant cannot, pending the determination of the appeal proceedings, be considered as having been convicted within the meaning of statutes imposing an enhanced penalty for a second or subsequent offense upon conviction of a prior offense." 5 ALR2d at 1092.

The same Annotation cites Michigan and California as states following the minority view that a pending appeal will not prevent judgment in the trial court from being considered a conviction within the meaning of the enhanced penalty statutes. Oregon would apparently be in this category in connection with enhanced penalty proceedings, a somewhat analogous situation. State v. Romero, 1 Or. App. 217, 461 P.2d 70 (1969); State v. Holbert, 1 Or. App. 552, 464 P.2d 834 (1970). See also, State v. Steffes, 2 Or. App. 163, 465 P.2d 905, Sup Ct review denied (1970).

A majority of jurisdictions hold that the pendency of an appeal will not affect the conviction for purposes of declaring a public office vacant upon the conviction of the office holder of a felony or other crime. See Annotation, 71 ALR2d 593, 600 (1960). Some courts have held to the same effect on the question of the suspension of motor vehicle operator's license upon conviction of a crime. See, Annotation, 79 ALR2d 866, 869-70 (1961). See also, 21 Am Jur2d 560-69, Criminal Law § 619.

Policy considerations underlying the prohibition against convicted felons carrying concealable firearms support a holding that the pendency of an appeal should not affect the conviction underlying the prohibition.