When does an Idaho felony conviction count as a 'conviction' under the federal Gun Control Act, especially after probation, parole, or a withheld judgment?

Subject

Opinion 86-16: For purposes of federal Gun Control Act, person remains convicted of felony after release from imprisonment, probation, or parole; however, person who satisfies conditions of a withheld judgment and has judgment expunged by court order is not a convicted felon.

Plain-English summary

Ada County Sheriff Vaughn Killeen asked when a person counts as having been "convicted of a felony" in Idaho for purposes of the federal Gun Control Act of 1968, as amended by Public Law No. 99-308. The answer mattered because the amendment barred those convicted of any crime "punishable by imprisonment for a term exceeding one year" from possessing or transferring firearms. Attorney General Jim Jones gave a layered answer that tracked the different stages and outcomes a criminal case can reach in Idaho.

The starting point was that an Idaho felony, defined under Idaho Code § 18-111 as a crime punishable by death or imprisonment in the state prison, becomes a "conviction" once the court accepts a guilty plea or guilty verdict. Citing State v. Wagenius and U.S. v. Locke, the opinion concluded that a defendant becomes a convicted felon at that point, even before formal judgment is entered. From there, the question is whether anything later removes that status. The opinion identified three downstream events:

A pardon by the Commission for Pardons and Parole removes the disqualification, since the federal statute expressly excepts convictions that have been pardoned, expunged, or set aside, unless the action explicitly forbids firearms possession. A successfully completed withheld judgment, where the defendant satisfies the conditions and the court enters an affirmative order dismissing the charge and expunging the plea, also removes the disqualification, citing State v. Cliett for the proposition that completion makes the conviction "a nullity" as if it had never been rendered. Restoration of civil rights under § 18-310(2) does not remove the disqualification, because that provision restores rights but does not extend "expungement" to the underlying felony. The conviction remains a historical fact that follows the person through impeachment under FRE/IRE 609, sentencing enhancement, persistent-violator prosecution, and bail decisions.

So in plain terms: out of prison and off paper but no pardon and no expunged withheld judgment, the person was still a convicted felon for federal firearms purposes.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Significant federal and Idaho law has changed in this area since 1986. The Gun Control Act has been amended; federal civil-rights-restoration analysis has evolved through cases like Beecham v. United States (1994); and Idaho's withheld-judgment, expungement, and civil-rights-restoration provisions have all been updated. Anyone advising on a current firearms-disability question should consult both 18 U.S.C. § 922(g) and 18 U.S.C. § 921(a)(20) directly, the current Idaho Code §§ 18-310 and 19-2604, and current ATF guidance, not the 1986 framing here.

What the opinion meant for the parties at the time

For sheriffs and deputies in 1986, the opinion gave a working test for assessing federal firearms eligibility based on Idaho criminal records. Look at the conviction, then look for one of three exits: a pardon, a successfully completed and expunged withheld judgment, or a court order setting the conviction aside. Anything short of those, including the routine "restoration of full civil rights" that follows discharge from probation or parole, did not clear the firearms disability under federal law.

For criminal defense attorneys, the opinion confirmed that a withheld judgment was meaningfully different from straight probation as a path to firearms relief: only the withheld judgment, if completed and expunged, would actually wipe out the conviction for federal Gun Control Act purposes. Plea bargaining decisions could turn on that distinction.

For prosecutors, the opinion confirmed that restoration of civil rights under § 18-310(2) did not undo the conviction's collateral consequences. A person with a restored set of civil rights could still be impeached as a felon under IRE 609, treated as a prior felon for sentencing under § 19-2520C and ICR 32, and prosecuted as a persistent violator under § 19-2514.

Common questions

At what point did a defendant become a "convicted felon" under Idaho law?
The opinion concluded that once an Idaho court accepts a guilty plea or a guilty verdict on a charge that could send the defendant to state prison for more than one year, the defendant is a convicted felon for purposes of federal firearms law. State v. Wagenius and the federal Locke case both treated acceptance of the plea or verdict as the operative moment, even before formal judgment was entered.

Did serving prison time, probation, or parole and then being discharged remove the disqualification?
No. The opinion was emphatic that "[a] conviction for felony is a historical fact which does not waft away without an expungement." Even after Idaho restored "full rights of citizenship" under § 18-310(2), the underlying conviction remained for purposes of impeachment, sentencing, persistent-violator status, bail, and the federal Gun Control Act.

What about a pardon?
A pardon issued by the Commission for Pardons and Parole removed the disqualification. Public Law No. 99-308 expressly provided that any conviction "expunged or set aside or for which a person has been pardoned" was not treated as a conviction for Gun Control Act purposes, unless the pardon or expungement order explicitly forbade firearms possession.

What about a successfully completed withheld judgment?
Same result, but only after the conditions were satisfied and the court entered an affirmative order dismissing the charge and expunging the plea. The opinion treated a completed and expunged withheld judgment as removing the conviction entirely, relying on State v. Cliett for the principle that the conviction becomes "a nullity" with the same effect as if it had never been rendered. Until that final step, the person was still a de facto convicted felon for firearms purposes.

Did the period of probation under a withheld judgment count as a "conviction" for firearms purposes?
Yes. The opinion concluded that during the probationary period of a withheld judgment, before completion and expungement, the person remained a convicted felon for the Gun Control Act. The same was true during and after probation following a regular suspended sentence, and during and after parole.

Background and statutory framework

Idaho's withheld-judgment procedure under Idaho Code § 19-2601(3) and Idaho Criminal Rule 33(d) lets a sentencing court hold judgment in abeyance for a fixed period under specified conditions. If the defendant completes the conditions, the court can dismiss the charge. State v. Cliett described this final dismissal as making the conviction a "nullity" with the effect "as if it had never been rendered at all."

The federal amendment, Public Law No. 99-308, recast the Gun Control Act's felony-disability test in terms of state-law felony classification: any conviction "for a crime punishable by imprisonment for a term exceeding one year." The same statute carved out an exception for convictions "expunged or set aside or for which a person has been pardoned."

Idaho's "restoration of civil rights" statute, § 18-310(2), distinguished between political rights (voting, holding office, sitting on juries) and civil rights more broadly. The 1981 amendment provided that on "final discharge" (satisfactory completion of imprisonment, probation, or parole), the person was "restored to the full rights of citizenship." But the AG read this as a restoration, not an expungement, and concluded it did not erase the underlying conviction for federal firearms purposes.

The opinion also relied on State v. Wagenius, 99 Idaho 273 (1978), where the Idaho Supreme Court worked through the dual meaning of "conviction" in Idaho law (the popular meaning of guilt-finding versus the technical meaning of judgment), and on U.S. v. Locke, 409 F.Supp. 600 (D.C. Idaho 1976), which had held that for federal purposes, conviction occurs when the court accepts the plea or verdict.

Citations

• Idaho Constitution, art. 4, § 7
• Idaho Code § 18-111 (felony defined)
• Idaho Code § 18-310(1), (2) (rights of persons on parole or probation; restoration of civil rights)
• Idaho Code § 19-101 (legal conviction required for punishment)
• Idaho Code § 19-2514 (persistent violator)
• Idaho Code § 19-2520C (sentencing)
• Idaho Code § 19-2601(3) (withheld judgment)
• Idaho Code § 20-240 (Commission for Pardons and Parole)
• Idaho Code § 31-2604(3) (prosecutor's duty to advise county officials)
• Public Law No. 99-308 (federal Gun Control Act amendment)
• Idaho Criminal Rule 33(d)
• Idaho Rule of Evidence 609
• Federal Rule of Evidence 609
• State v. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978)
• U.S. v. Locke, 409 F.Supp. 600 (D.C. Idaho 1976)
• State v. Cliett, 96 Idaho 646, 534 P.2d 476 (1975)
• Black's Law Dictionary, p. 1487 ("Rights")

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP86-16.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

JIM JONES
ATTORNEY GENERAL

BOISE 83720

TELEPHONE
(208) 334-2400

ATTORNEY GENERAL'S OPINION NO. 86-16

Sheriff Vaughn Killeen
7200 Barrister
Boise, ID 83704

Per Request for Attorney General's Opinion

RE: Felony Convictions

We have received through your counsel, Mr. Larry Richards, your request for a legal opinion. Usually, we refer legal questions from sheriffs back to the county prosecuting attorney since it is the prosecutor's duty to advise county officials. Idaho Code § 31-2604(3). However, yours was the first among several requests from different agencies on a question prompted by recent amendments to the federal firearms laws. Therefore, we have undertaken the following analysis.

QUESTIONS PRESENTED

The question you pose is: "When is a person considered to have been convicted of a felony in Idaho?" As you indicated in your letter, this question is important in determining when there has been a violation of the federal Gun Control Act of 1968 which, pursuant to a recent amendment, prohibits the possession and transfer of firearms by persons convicted of a felony, as defined by state law. We shall focus our analysis upon the emphasized words.

CONCLUSION

A person who is pardoned or who has successfully completed the period of a withheld judgment and had his guilty plea or conviction negated or expunged, may possess and transact firearms without violating the federal Gun Control Act. It is our opinion, however, that during the probationary period of a withheld judgment and during and after the term which a person serves on probation with a suspended sentence or on parole, such person is a convicted felon for the purposes of the Gun Control Act.

ANALYSIS

Under the recent federal amendment, Public Law No. 99-308, the prohibitions of the Gun Control Act are directed against those persons convicted for a "crime punishable by imprisonment for a term exceeding one year." Idaho Code § 18-111 defines a felony offense as any crime which is punishable with death or by imprisonment in the state prison. Under Idaho law a person is sent to the state prison only in cases where the term exceeds one year. Therefore, reading these provisions conjointly, it is apparent that once an Idaho court accepts a guilty plea or guilty verdict in a case where the person may be imprisoned in the state penitentiary in excess of one year, that person becomes a convicted felon for the purposes of federal firearm laws.

Under Idaho Code § 19-101, no person can be punished for a public offense except upon a legal conviction. As the Idaho Supreme Court stated in State v. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978), the word "conviction" is susceptible of two meanings: an ordinary or popular meaning which refers to the finding of guilt by plea or verdict, and a more technical meaning which refers to the final judgment entered following a plea or verdict of guilty. The court in Wagenius noted that its "prior decisions have not been totally consistent" in determining which meaning to employ in Idaho. 99 Idaho at 277. In construing the statute at issue in Wagenius, the court concluded that "conviction occurs when a verdict or plea of guilty is accepted by the court." Id. at 278.

At least one court has considered what constitutes a conviction under Idaho law for the purposes of the federal Gun Control Act. The federal court for the district of Idaho reached the conclusion that once a person has entered a plea of guilty or has been convicted by a jury on a felony offense, that person is a convicted felon even though judgment has not been entered:

This Court adopts the view that a "conviction" is the stage of a criminal proceeding where the issue of guilt is determined and a "sentence" is the second stage in criminal proceeding whereupon the Court decrees by judgment the sentence defendant is to receive.

U.S. v. Locke, 409 F.Supp. 600, 603 (D.C. Idaho 1976)

Such a view is in harmony with the Wagenius decision where the court concluded for purposes analogous to the issue here under consideration that a de facto conviction occurs when a verdict or plea of guilty is accepted by a court even before a final judgment is entered. Because of an amendment to Idaho Code § 18-310(2), intervening since Locke and Wagenius, we consider the question further.

After a guilty plea is entered or a guilty verdict returned, a criminal case may take one of several courses: The judge may withhold judgment; the judge may impose judgment after which the defendant will pay his debt to society by serving a probation or by serving a prison term or by serving prison time followed by parole; or the defendant may be pardoned by the Commission for Pardons and Parole. We will briefly address these in reverse order, considering the impact of each category upon the concept of "conviction."

The Commission for Pardons and Parole is a constitutional body vested with the unreviewed power to pardon any who are convicted of crimes. Article 4, § 7, Idaho Constitution, and Idaho Code § 20-240. This power is used sparingly, usually in cases where it is clear that a convicted person is, in fact, innocent. Public Law No. 99-308 expressly provides that any conviction which has been expunged or set aside or for which a person has been pardoned is not considered a conviction for purposes of the Gun Control Act unless such pardon or expungement explicitly forbids the person from shipping, transporting, possessing or receiving firearms. It requires no further analysis to conclude that a person who has received a pardon is not a convicted felon for present considerations.

A major category of persons affected by the Gun Control Act is that group of persons upon whom a felony judgment of conviction is imposed and who either are placed upon probation or upon parole. The state legislature has attempted to diminish the pariah status of such persons. "(A)ny such person may lawfully exercise all civil rights which are not political during any period of parole or probation." Idaho Code § 18-310(1) (adopted July 1, 1972). "Political rights" would be those consistent with direct or indirect participation in establishing or administering government; such as, the right of suffrage, the right to hold public office, and the right of petition. See, Black's Law Dictionary, p. 1487, "Rights."

The legislature has gone further to facilitate the reintegration of felons into society once they have completed their terms of probation, parole or incarceration. "Upon the final discharge of a person convicted of any felony except treason, a person shall be restored to the full rights of citizenship. . . . '[F]inal discharge' means satisfactory completion of imprisonment, probation or parole as the case may be." Idaho Code § 18-310(2) (adopted March 31, 1981). "Civil rights," which is probably what the legislature intended when it used the phrase, "full rights of citizenship," contemplates those rights of every citizen not connected with the organization or administration of government and including such rights as property, marriage, contract, protection of law, etc. In other words, rights appertaining to a person by virtue of his citizenship in the state. See, Black's Law Dictionary, p. 1487, "Rights."

It is our conclusion, despite these statutory changes, that restoration to full rights of citizenship does not dispel the fact of a felony conviction. Idaho Code § 18-310(2) does not extend a right of expungement to a convicted felon. Such a person remains a convicted felon as much for purposes of the federal Gun Control Act, as for other rules and statutes. If such a person appears as a witness in any court proceeding he may, under both the Idaho and federal rules of evidence, be impeached as a convicted felon (IRE § 609; FRE § 609). A prior felony conviction may be taken into consideration at time of sentencing (ICR § 32 and Idaho Code § 19-2520C) and in the setting of bail (ICR § 46). Though returned to full rights of citizenship, a person may be prosecuted as a persistent violator if he has been previously convicted of two felonies. (Idaho Code § 19-2514.) In these other contexts, the courts and legislature have provided that a conviction may be taken into consideration to the disadvantage of the person convicted despite the statutory restoration to "full rights of citizenship" under Idaho Code § 18-310(2). A conviction for felony is a historical fact which does not waft away without an expungement. Therefore, it is our conclusion that for purposes of the federal Gun Control Act, a person remains convicted of a felony after release from imprisonment, probation, or parole.

Under procedures available in Idaho, a person who has been convicted of a felony may have judgment of that conviction withheld. Idaho Code § 19-2601(3) and Idaho Criminal Rule 33(d) allow a court, in its discretion, to withhold judgment of a conviction for a specified period of time based on certain conditions or sanctions. Since the use of a withheld judgment is a kind of probation, a convicted felon who has a withheld judgment imposed on him remains a de facto felon, as discussed above, until he satisfies the conditions of the probation and applies to have the guilty plea set aside. U.S. v. Locke, 409 F.Supp. 600 (D.C. Idaho 1976). Upon satisfactory completion of the terms or conditions of the withheld judgment, and affirmative action by the court to dismiss the charge, the person's felony conviction is negated. It is a nullity and the effect is as if it had never been rendered at all. State v. Cliett, 96 Idaho 646, 649, 534 P.2d 476 (1975). Thereafter, such a person could possess firearms without being in violation of federal law. However, during the period of a person's de facto conviction, as defined above, and until the satisfactory completion of any and all terms of his probation pursuant to a withheld judgment, followed by an order of the court that the entry of the plea be expunged, a person would be considered by Idaho law to be a convicted felon for the purposes of the Federal Gun Control Act.

I hope this information answers your question and provides the guidance you requested. If we can be of any further assistance, please call or write.

AUTHORITIES CONSIDERED

Art. 4, § 7, Idaho Constitution
Idaho Code § 18-310(1), (2)
Idaho Code § 19-2514
Idaho Code § 19-2520C
Idaho Code § 20-240
Idaho Code § 31-2604(3)
State v. Cliett, 96 Idaho 646, 649, 534 P.2d 476 (1975)
U.S. v. Locke, 409 F.Supp. 600, 603 (D.C. Idaho 1976)
State v. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978)
FRE § 609
ICR § 32
ICR § 46
IRE § 609
Black's Law Dictionary

DATED this 19th day of December, 1986.

ATTORNEY GENERAL
State of Idaho

ANALYSIS BY:
D. MARC HAWS
Deputy Attorney General
Chief, Criminal Justice Division

cc:
Idaho Supreme Court
Supreme Court Library
Idaho State Library