explaining that a criminal defendant has no constitutional right to appeal, and that appellate jurisdiction springs from statute
How later courts described this case
- explaining that a criminal defendant has no constitutional right to appeal, and that appellate jurisdiction springs from statute
- prior to the 1989 and 1993 statutory revisions; adhering to McClure, despite a stated belief that it was incorrectly decided
- court, en banc, upheld rule allowing defendant to refuse probation; but see dissenting opinions of Jones, J., joined by Peterson, C.J., and separate dissent of Gillette, J.
- describing the history of probation in Oregon
Written by the judges who cited it.
The opinion
GILLETTE, J.,
dissenting.
I should like to be able to join in the first part of the separate dissenting opinion of Jones, J., dealing with the appropriate scope of this court’s review pursuant to ORS 138.040 and 138.050.1 should like to do so because the interpretation the majority today places on its scope of review of sentences of probation — and they are sentences, whatever else the majority is pleased to call them — is awry.
The problem is that this court’s construction of the statutory scheme went awry in 1983, in State v. McClure, 295 Or 732 , 670 P2d 1009 (1983). The issue in that case was whether time spent in a county jail between a person’s arrest and trial had to be credited against a period of county jail incarceration ordered as a condition of probation. At issue was a portion of ORS chapter 137 dealing with credit for time *17 served. This court explained the problem and its answer to it this way:
“If defendant had actually received a sentence of imprisonment, either in a county jail or in the custody of the Corrections Division, the statutes make it clear that his post-arrest imprisonment time * * * must be credited to his sentence. In the present case, however, the judge suspended the imposition of defendant’s sentence and placed him on probation for two years. * * *
“Defendant’s basic position is that the statutes * * * require that he be given credit for the time he was already confined. * * *
“The state answers by arguing that probation is not the imposition of a sentence * * * [citation omitted]. * * * [I]t contends that the statutory scheme contained in Chapter 137 of 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. This defendant has not received a sentence of imprisonment, and the statutes mandating credit for pretrial confinement do not apply. ”
Id. at 735-36 (emphasis supplied).
Of course, I recognize that we are talking about a different statute in this case. But McClure seems to stand for the proposition, all too readily acceded to (in my opinion), that the imposition of probation is not a sentence, as a matter of statutory construction. The interworkings of ORS Chapters 137 and 138 are too close for me to contemplate calling the imposition of probation a “sentence” in one chapter, but not the other. Where legislative correction is possible, I try to adhere even to those pieces of statutory construction I think wrong. McClure belongs in that category but, because I feel bound by it, I am not able to join in the first part of the separate dissenting opinion.
Happily (for me), no such constraints are present with respect to the second half of that opinion. It is the job of a trial judge to identify the circumstances most likely to turn an offender into a useful citizen. If the offender could do that for himself, the chances are that he would not be before the trial judge in the first place. Yet today we make the offender, not the judge, the master of his own dispositional alternatives. Courts commonly are unjustly decried for allegedly handing a *18 prisoner the keys to get out of jail. Now, with the overcrowding problem we currently are experiencing, it will more fairly be possible to decry this court, at least, for doing something even more bizarre — handing a prisoner the keys to get in.
I dissent.