State v. Carmickle

• Decision Date: 16 November 1988
• Citation: 307 Or. 1,762 P.2d 290
• Parties: STATE of Oregon, Respondent on Review, v. Mark Wilbur CARMICKLE, Petitioner on Review. DC B68-501, CA A41918, SC S34599.
• Court: Oregon Supreme Court

Page 290

762 P.2d 290

307 Or. 1

STATE of Oregon, Respondent on Review, v. Mark Wilbur CARMICKLE, Petitioner on Review.

DC B68-501, CA A41918, SC S34599.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Jan. 19, 1988.

Decided Sept. 30, 1988.

Reconsideration Denied Nov. 16, 1988.

[307 Or. 2] Robert C. Homan, Eugene, argued the cause and filed the petition for petitioner on review.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response to the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

CAMPBELL, Justice.

We accepted review in this case to determine if a convicted criminal defendant can elect to refuse probation and demand that sentence be imposed. We hold that such a defendant may make such an election. Because of the result we do not reach secondary issues which the defendant raised in his petition for review.

On April 25, 1986, the defendant was arrested in this case on the charge of INITIATING A FALSE REPORT to the Eugene Police Department about a stolen car. On May 1, 1986, he was released on his own recognizance to report to his parole officer on a previous conviction. On July 31, 1986, an order was entered revoking the defendant's recognizance agreement because of his arrest the previous day on a ROBBERY IN THE THIRD DEGREE charge. After that the defendant remained in custody until his trial and conviction on September 30, 1986, in this case.

The defendant waived a jury and the trial court found him guilty of INITIATING A FALSE REPORT, which is a Class C misdemeanor with a maximum penalty of 30 days in jail and a fine of $500. ORS 162.375. After the trial court found the defendant guilty, the following occurred:

DEPUTY DISTRICT ATTORNEY: "Your honor, [recital of defendant's previous criminal record]. The State's concern is that the defendant be placed on probation in this matter with a requirement that the defendant have no contact with Mr. William Hemphill or any member of his family."

DEFENDANT'S ATTORNEY: "I would like to address the issue of probation. Mr. Carmickle, by my count, has spent an excess of 30 days that can be credited toward sentence in this case. I would ask the court to, rather than place him on probation, to give him the sentence of, essentially, credit for time served. He is a person who does not do well in a supervised situation; a probationary or parole-type situation. He was paroled in May of this year and at this point in the time his parole status is still in effect.

" * * * "

"It would be our hope that he would be able to do whatever time the court feels is fair for this type of crime and be done with the case. I realize that the court still has power to impose a financial penalty, if it feels he has some ability to pay, however, given the fact that he stands to be incarcerated for perhaps six months or so on the other charge, * * * I think it would be appropriate to give him a straight sentence, particularly since he has already served the maximum of time possible in custody."

THE COURT: "I am going to suspend imposition of sentence for five years and I am going to put you on probation to the Corrections Division, and this will be concurrent with any probation."

DEFENDANT: "I don't want probation."

THE COURT: "You don't have a choice right now! I'm imposing 60 days in the DEFENDANT: "That's more than the maximum penalty. The maximum penalty is only 30 days."

Lane County Jail, with 60 days credit for time served, considered served."

DEFENDANT'S ATTORNEY: "I think that Mr. Carmickle is correct, its a C Misdemeanor.

" * * * "

THE COURT: "Right you are. Ok, 30 days with 30 days credit."

DEFENDANT: "Your honor, if you're going to put me on probation, you might as well make it a felony and send me to the joint because I'm not going to do probation."

THE COURT: "If you don't do probation then you're probably going to come back here and I'm going to end up imposing a fine, and you'll have to pay a fine, but I'm not imposing that at this time."

DEFENDANT: "Obviously, your honor, all you're doing is delaying it, if you're going to give me a fine, give me a fine and get it over with. There is no way that I'm going to make five years probation when I can't even make a six month parole.

" * * *."

THE COURT "I'll give you a copy of this. If you refuse to accept the conditions of probation, then you'll just have to be back in when you're out."

DEFENDANT: "You might as well just get it over with right now."

THE COURT: "This probably isn't the best time to discuss it. Think about it a little bit and then we'll talk about it again when you're out. The court's in recess."

On September 30, 1986, the trial court entered a JUDGMENT AND ORDER OF PROBATION TO THE CORRECTIONS DIVISION. It recited that the "Imposition of sentence is suspended for 5 years." The only special conditions of probation were: "30 days in the custody of the sheriff with 30 days credit for time served" and "defendant shall not contact, or be in or about the premises of, the victim William J. Hemphill or his family." ¹ It also contained the notation: "Defendant refused to sign."

The defendant appealed to the Court of Appeals, which affirmed without opinion. State v. Carmickle, 87 Or.App. 552, 743 P.2d 185 (1987).

Scope of review

Because the State argues that our scope of review in this case is limited, we will first examine that matter.

A criminal defendant has no constitutional right to appeal. Gairson v. Gladden, 247 Or. 88, 90, 425 P.2d 761 (1967). Appellate jurisdiction is limited and springs from statute. State v. Curran, 291 Or. 119, 122, 628 P.2d 1198 (1981). "An appeal is not a matter of absolute right, but a statutory privilege." State v. Endsley, 214 Or. 537, 539, 331 P.2d 338 (1958).

In this case the defendant's right to appeal to the Court of Appeals was derived from ORS 138.040, which provides:

"The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district or circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060(3). Upon an appeal, or cross-appeal, any decision of the court in an intermediate order or proceeding may be reviewed, and any sentence of the court may be reviewed as to whether it exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual. A judgment suspending imposition or execution of sentence or placing a defendant on probation The state in effect argues that the ORDER OF PROBATION was a "sentence" and that the defendant's appeal was limited "to whether it exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual."

shall be deemed a judgment on a conviction and shall not be subject to appeal after expiration of the time specified in ORS 138.071 except as may be provided in ORS 138.050 and 138.510 to 138.680. If in the judgment of the appellate court the punishment imposed by the sentence appealed from exceeds the maximum sentence allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the punishment that should be administered."

We disagree. ORS 138.040 specifically provides: "A judgment suspending imposition * * * of sentence or placing a defendant on probation shall be deemed a judgment on a conviction * * *." The first phrase of the same statute provides: "The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district * * * court * * *." ²

This court has previously held that probation is not a sentence. In State v. McClure, 295 Or. 732, 736, 670 P.2d 1009 (1983) we said:

"The state answers by arguing that probation is not the imposition of a sentence, relying on State ex rel Dillavou v. Foster, 273 Or 319, 322, 541 P.2d 811 (1975). To further support its position, it contends that the statutory scheme contained in Chapter 137 of the Oregon Laws clearly separates the 'imposition of a sentence' from a grant of probation. We agree. Probation is an alternative to the imposition of a sentence. ORS 137.010."

We hold that an order of probation is appealable as a judgment on conviction and the appeal or review is not limited to whether it exceeds the maximum allowable by law or is unconstitutionally cruel and unusual as in the case of a sentence.

The History of Probation In Oregon.

Probation was unknown at common law. ³ The term "probation" was first used by John Augustus, a boot-maker who lived in Boston, Massachusetts. Beginning in 1841 Augustus started the practice of having people released to him who were charged with the offense of being a common drunkard. Later people convicted of other offenses were released to him. He kept a journal in which he recorded his efforts to help over 1,100 probationers. Augustus is generally credited with being the father of probation and the first probation officer. Cohen and Gobert, The Law of Probation and Parole 7 (1983); Killinger, Kerper and Cromwell, Probation and Parole in the Criminal Justice System 22 (1976).

The General Laws of Oregon, 1845-1864, compiled and annotated by M.P. Deady, made no provision for parole or probation but gave the Governor "power to grant reprieves, commutations and pardons, after conviction, for all crimes; * * *." General Laws of Oregon, ch. 33, § 333, p. 449 (Deady 1845-1864).

The Oregon Legislature in 1905 by enacting chapter 177 gave the circuit courts power to grant parole to certain persons who had been convicted of a felony but who had not been delivered to the warden of the penitentiary. The persons who qualified were allowed to remain at large under the supervision of the court or under the supervision of a Prisoners Aid Society.

The same legislature, by chapter 187, gave the governor the power to parole certain persons after they had served a part of their sentence in the penitentiary. In 1911 the legislature by chapter 127 created a Parole Board to...