Deferred Judgment and Gun Rights

posted by on Friday, April 08, 2011

If I receive a deferred judgment on a felony charge, does that take away my gun rights? The short answer is "yes."

Iowa Code section 724.26 prohibits a person convicted of certain offenses from possessing a firearm or ammunition. These individuals include convicted felons and individuals convicted of misdemeanor domestic assaults that are subject to a no contact order. Federal law has a similar prohibition which means these offenses can be charged in both State and Federal court. In State court, Felon in Possession of a Firearm is a Class D Felony, punishable by up to 5 years in prison.

The question that inevitably arises in these cases is what qualifies as a conviction? Iowa law gives individuals who have little or no prior criminal history an opportunity to receive a deferred judgment in certain circumstances. A deferred judgment is not a formal conviction, rather, judgment is withheld and the individual is placed on probation for a specified period of time and if probation is successfully completed no conviction is entered on their criminal record. This is a common resolution for a first offense domestic assault or even most first time felony crimes that do not involve violence. Are individuals with deferred judgments on these cases "convicted" for purposes of Iowa and the federal prohibition against felons being in possession of firearms and ammunition?

The answer provided recently by the Iowa Court of Appeals is, "yes." In it's recent decision of State v. Tong, the Court of Appeals concluded that an individual still on probation for a deferred judgment on a felony does qualify as a convicted felon under Iowa's Possession of a Firearm as a Felon statute. According to the Court, the purpose of Iowa's Felon in Possession of a Firearm statute is to protect the public at large which required it to apply the "broad definition of 'conviction.'" Under the "broad definition of 'conviction'" a person who has entered a plea of guilty qualifies as a "convicted person." In order to receive a deferred judgment, the individual must first enter a plea of guilty so according to the Court, they qualify as a "convicted person" even though judgment has technically not been entered against them. As of the date of this article being written, the Court of Appeals decision in Tong is not yet final as Further Review may be requested by the Iowa Supreme Court.

Federal courts in Iowa have adopted a similar approach to the Iowa Court of Appeals. In 2007, Judge Linda Reade of the Northern District of Iowa, concluded that an individual still on probation for a deferred judgment qualified as a convicted felon under 18 U.S. C. 922, the federal Felon in Possession of a Firearm statute. Judge Reade applied a similar approach as the Iowa Court of Appeals and used the broad definition of "conviction" to conclude that it included anyone who had entered a guilty plea to a felony charge. The 8th Circuit Court of Appeals, in its published case of United States v. Reth, accepted Judge Reade's reasoning and concluded that a person on probation for a deferred judgment did indeed qualify as a "convicted person."

What these cases do not address however, is what about an individual who has successfully completed probation on a deferred judgment? When a person successfully completes probation on a deferred judgment they are "discharged without entry of judgment." Under the four factors used by the court to determine if a conviction exists, there is an argument that one who has successfully completed a deferred judgment is not a "convicted person." A conviction under Iowa law exists if the following four factors are established: 1) a judge or jury has found the defendant guilty, or the defendant has entered a plea of guilty; 2) the court has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed; 3) a judgment of guilty may be entered if the person violates the terms of probation or fails to comply with the requirements of the court's order; and 4) the conviction has become final. A conviction is final if the defendant has exhausted or waived any postorder challenge.

Arguably factor number 3 is no longer satisfied if the person has successfully completed the probationary term on the deferred judgment. Likewise factor number 4 would not be met since the person is discharged without entry of judgment upon successful completion of probation. Needless to say, the question is not entirely clear. Unless one wishes to be the test subject for this issue on appeal after being convicted of being a felon in possession of a firearm, a person with a deferred judgment on a felony charge may be better advised to take up bow hunting instead of using firearms. This area of the law provides no certain answer and with what is at stake, the best approach would be better safe than sorry.