State v. MoonState v. Moon
- Reporters:
- ,
- Before:
- Randall
Lead Opinion
OPINION
GARDEBRING, Judge.This is an appeal from the trial court’s denial of appellant’s motion to strike the language from his February 1989 order of discharge which prohibits his right to ship, transport, possess or receive firearms for 10 years. He argues that because his felony conviction was reduced to misdemeanor status, the firearms restriction is not applicable. Further, he argues that
FACTS
The facts are undisputed. Appellant Joseph Moon pleaded guilty to felony theft in December 1987 for acts that occurred between September 1984 and November 1986. In March 1988, the trial court stayed imposition of appellant’s sentence. In February 1989, the trial court issued appellant’s order of discharge from probation, which included the following prohibition:
You are not entitled to ship, transport, possess or receive a firearm until 10 years have elapsed since you have been restored to civil rights and during that time you are not to have been convicted of any other crime of violence.
The trial court included this language pursuant to
In February 1989, appellant moved to have this language stricken from the order of discharge. The trial court denied his motion and this appeal followed. This court granted discretionary review.
ISSUES
1. Did the trial court err in prohibiting appellant’s possession of firearms when his conviction for felony theft was deemed a misdemeanor under
2. Is
ANALYSIS
I.
Appellant argues the trial court erroneously restricted his right to possess firearms. We agree. Because appellant’s felony theft conviction was reduced to a misdemeanor by law, the prohibition against possessing firearms is not applicable to appellant’s order of discharge.
Appellant pleaded guilty to felony theft (Medicaid fraud). Felony theft, but not misdemeanor theft, is expressly included as a “crime of violence” under
Notwithstanding a conviction is for a felony:
(2) The conviction is deemed to be for a misdemeanor if the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.
The advisory committee comment reflects the statute’s purpose:
It is believed desirable not to impose the consequences of a felony if the judge decides that the punishment to be imposed will be no more than that provided *511for misdemeanors or gross misdemeanors.
Notwithstanding this provision, the trial court included in appellant’s order of discharge a restriction on his use of firearms.
must provide that a person who has been convicted of a crime of violence * * * is not entitled to ship, transport, possess, or receive a firearm until ten years have elapsed since the person was restored to civil rights and during that time the person was not convicted of any other crime of violence.
(Emphasis added.)
To properly deal with the issue on appeal we must harmonize
The state’s reliance on case law dependent upon specific provisions of the rules of evidence and the criminal sentencing guidelines is misplaced. Felonies reduced to misdemeanor status are admissible for impeachment purposes under
The state’s reliance on State v. Clipper, 429 N.W.2d 698 (Minn.App.1988), is also unpersuasive. In Clipper the court held a criminal history point was properly assigned for a prior felony despite the stay of imposition of sentence. Id. at 701. But the sentencing guidelines expressly require assignment of “one [criminal history] point for every felony conviction * * * for which a stay of imposition of sentence was given * * *.” Minnesota Sentencing Guidelines II.B.l. No specific reference is made to a stay of imposition in determining a crime of violence, however, and hence Clipper does not conflict with our decision.
Finally, the state’s argument that case law interpreting the federal gun control law supports the trial court’s decision lacks merit. In United States v. Matter, 818 F.2d 653, 654 (8th Cir.1987), the eighth circuit held the defendant was a convicted felon within the meaning of the federal firearms statute even though under Minnesota law his felony conviction was reduced to misdemeanor status. Federal law determines whether a person is a convicted felon for purposes of the federal firearms statute. Id. Here, however, state law controls. We conclude appellant’s felony conviction was properly deemed a misdemean- or so as to make application of
II.
Because we reverse the trial court for incorrectly applying
DECISION
The trial court erred in applying
Reversed.
Concurrence Opinion
concurring specially.
I concur specially because, while in complete accord with the majority on issue one, I would go on to answer issue two in the affirmative and hold that, on these facts, had
Por a penal law to be ex post facto, two critical elements must be present: it must apply to acts which occur before its enactment, and it must increase the punishment for an offense. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). Here, appellant pleaded guilty to the charge of felony theft for acts committed between September 1984 and November 1986. On May 29,1987, the legislature passed