BRYSON, J.
This appeal concerns the validity of a condition of probation in a criminal case. The trial judge ordered, inter alia, that after defendant’s release from the penal institution she was "absolutely prohibited from association with any person who has ever been convicted of a crime,” including her husband. Defendant appealed, contending that this condition violated her right to marital privacy. The Court of Appeals affirmed from the bench, 30 Or App 674, 568 P2d 722 (1977). We granted review.
In January 1976, in another case, defendant was placed on probation following a conviction for forgery. That probation is not in issue here. On January 28, 1977, defendant admitted violating the conditions of her 1976 probation and also entered a plea of guilty to two new charges of forgery. The trial court sentenced her to four years’ imprisonment for violating probation and for committing one of the two forgeries.
For the other forgery, here involved, the court placed defendant on five years’ probation, to run concurrently with the four-year prison sentence. It is this five-year probation order that imposes the condition that defendant not associate with her husband. The reason the trial court imposed the condition was that defendant’s counsel had argued at sentencing that defendant’s husband was largely to blame for defendant’s crimes. Counsel stated:
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"From my investigation and my understanding of the whole circumstance, I would represent to the Court that Mrs. Martin [defendant] is not as morally culpable as her husband is in this whole regard. She’s benefitted very little by the passing of all these checks. Unfortunately from her regard, she is the only one that has been apprehended for the prosecution of these checks. * * *”
This argument boomeranged, as shown by the following colloquy between court and defense counsel:
"[Counsel]: Your Honor, there is one condition [of probation], that she make no contact with anyone that knowingly — with anyone that’s had a conviction for a crime.
"THE COURT: Yeah.
"[Counsel]: I think the record shows that her husband is in that circumstance.
"THE COURT: Well
”[ CounselAnd I don’t know what their future marital status is gonna be.
"THE COURT: I don’t know what their future marital status is, but as I understand the situation, apparently the more culpable of the two is her husband. If that’s the trouble that she’s going to get into while she’s running around with him, no matter whether she be lawfully married to him or not lawfully married to him, for the term that she’s going to be on probation, she’s going to have to make other arrangements.
"[Counsel]: Well, I believe I have to say that’s an inconstitutional [sic] provision, your Honor. I think that’s deprivation of her right to privacy or association.
* * * *
"THE COURT [to defendant]: * * * [H]as your husband ever been convicted of a crime?
"THE DEFENDANT: Yes.
"THE COURT: I am aware he has been convicted of a crime. I am aware that apparently, one, from what the record shows that these crimes were committed by Mrs. Martin in association with and in conjunction with her husband, and if those aren’t right, if — those facts are correct, aren’t they, Mrs. Martin?
"THE DEFENDANT: Yes.
"THE COURT: All right. * * *”
Although defendant raised a constitutional argument at sentencing, and again here, we resolve this case under the applicable statutes. The preliminary issue is whether defendant, who voluntarily entered a
plea of guilty, may challenge any condition of probation.
At the time defendant was sentenced, ORS 138.050 provided that:
"A defendant who has plead guilty * * * may take an appeal from a judgment on conviction where it imposes an excessive fine or excessive, cruel or unusual punishment. * * * On such appeal, the appellate court shall only consider the question whether an excessive fine or excessive, cruel or unusual punishment
not proportionate to the offense has been imposed.
* * (Emphasis added.)
Under a plain reading of this statute, a probation order is appealable if it is "a judgment on conviction.” ORS 138.040 provides, in part, that a "judgment * * * placing a defendant on probation shall be deemed a judgment on a conviction * * *.” In the absence of clear legislative intent to restrict this provision to ORS 138.040, we hold that this provision makes a probation order a judgment on conviction for the purposes of ORS 138.050 and is thus appealable.
This result is consistent with the American Bar Association’s Standards Relating to Probation § 1.1(e) (Approved Draft 1970).
The next issue is the scope of our review of probation conditions. Our earlier cases tended to treat probation as an act of extraordinary grace and left the
determination to the sole discretion of the trial judge.
The initial decision of whether to grant probation is, of course, still left to the trial judge’s discretion; however, the statutes as discussed above limit that discretion as to the permissible conditions of probation. The 1975 version of ORS 138.050, applicable to this case, provided that "the appellate court shall only consider the question whether an excessive fine or excessive, cruel or unusual punishment not proportionate to the offense has been imposed.”
In the context of ORS 138.050, which requires proportionality, an "excessive or unusual punishment” is one that is unrelated to the offense or that goes beyond that necessary to accomplish the purpose of the punishment. The purposes of probation include rehabilitation and the freedom of the individual, as long as these are consistent with public safety.
Sobota v. Williard,
247 Or 151, 153, 427 P2d 758 (1967);
Barker v. Ireland,
238 Or 1, 4, 392 P2d 769 (1964).
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BRYSON, J.
This appeal concerns the validity of a condition of probation in a criminal case. The trial judge ordered, inter alia, that after defendant’s release from the penal institution she was "absolutely prohibited from association with any person who has ever been convicted of a crime,” including her husband. Defendant appealed, contending that this condition violated her right to marital privacy. The Court of Appeals affirmed from the bench, 30 Or App 674, 568 P2d 722 (1977). We granted review.
In January 1976, in another case, defendant was placed on probation following a conviction for forgery. That probation is not in issue here. On January 28, 1977, defendant admitted violating the conditions of her 1976 probation and also entered a plea of guilty to two new charges of forgery. The trial court sentenced her to four years’ imprisonment for violating probation and for committing one of the two forgeries.
For the other forgery, here involved, the court placed defendant on five years’ probation, to run concurrently with the four-year prison sentence. It is this five-year probation order that imposes the condition that defendant not associate with her husband. The reason the trial court imposed the condition was that defendant’s counsel had argued at sentencing that defendant’s husband was largely to blame for defendant’s crimes. Counsel stated:
«:}{ ‡
^
"From my investigation and my understanding of the whole circumstance, I would represent to the Court that Mrs. Martin [defendant] is not as morally culpable as her husband is in this whole regard. She’s benefitted very little by the passing of all these checks. Unfortunately from her regard, she is the only one that has been apprehended for the prosecution of these checks. * * *”
This argument boomeranged, as shown by the following colloquy between court and defense counsel:
"[Counsel]: Your Honor, there is one condition [of probation], that she make no contact with anyone that knowingly — with anyone that’s had a conviction for a crime.
"THE COURT: Yeah.
"[Counsel]: I think the record shows that her husband is in that circumstance.
"THE COURT: Well
”[ CounselAnd I don’t know what their future marital status is gonna be.
"THE COURT: I don’t know what their future marital status is, but as I understand the situation, apparently the more culpable of the two is her husband. If that’s the trouble that she’s going to get into while she’s running around with him, no matter whether she be lawfully married to him or not lawfully married to him, for the term that she’s going to be on probation, she’s going to have to make other arrangements.
"[Counsel]: Well, I believe I have to say that’s an inconstitutional [sic] provision, your Honor. I think that’s deprivation of her right to privacy or association.
* * * *
"THE COURT [to defendant]: * * * [H]as your husband ever been convicted of a crime?
"THE DEFENDANT: Yes.
"THE COURT: I am aware he has been convicted of a crime. I am aware that apparently, one, from what the record shows that these crimes were committed by Mrs. Martin in association with and in conjunction with her husband, and if those aren’t right, if — those facts are correct, aren’t they, Mrs. Martin?
"THE DEFENDANT: Yes.
"THE COURT: All right. * * *”
Although defendant raised a constitutional argument at sentencing, and again here, we resolve this case under the applicable statutes. The preliminary issue is whether defendant, who voluntarily entered a
plea of guilty, may challenge any condition of probation.
At the time defendant was sentenced, ORS 138.050 provided that:
"A defendant who has plead guilty * * * may take an appeal from a judgment on conviction where it imposes an excessive fine or excessive, cruel or unusual punishment. * * * On such appeal, the appellate court shall only consider the question whether an excessive fine or excessive, cruel or unusual punishment
not proportionate to the offense has been imposed.
* * (Emphasis added.)
Under a plain reading of this statute, a probation order is appealable if it is "a judgment on conviction.” ORS 138.040 provides, in part, that a "judgment * * * placing a defendant on probation shall be deemed a judgment on a conviction * * *.” In the absence of clear legislative intent to restrict this provision to ORS 138.040, we hold that this provision makes a probation order a judgment on conviction for the purposes of ORS 138.050 and is thus appealable.
This result is consistent with the American Bar Association’s Standards Relating to Probation § 1.1(e) (Approved Draft 1970).
The next issue is the scope of our review of probation conditions. Our earlier cases tended to treat probation as an act of extraordinary grace and left the
determination to the sole discretion of the trial judge.
The initial decision of whether to grant probation is, of course, still left to the trial judge’s discretion; however, the statutes as discussed above limit that discretion as to the permissible conditions of probation. The 1975 version of ORS 138.050, applicable to this case, provided that "the appellate court shall only consider the question whether an excessive fine or excessive, cruel or unusual punishment not proportionate to the offense has been imposed.”
In the context of ORS 138.050, which requires proportionality, an "excessive or unusual punishment” is one that is unrelated to the offense or that goes beyond that necessary to accomplish the purpose of the punishment. The purposes of probation include rehabilitation and the freedom of the individual, as long as these are consistent with public safety.
Sobota v. Williard,
247 Or 151, 153, 427 P2d 758 (1967);
Barker v. Ireland,
238 Or 1, 4, 392 P2d 769 (1964). Thus, a condition of probation that is not related to the offense or does not promote public safety or rehabilitation is not permitted under the statute.
An appellate court can test conditions of probation for compliance with this standard only if the sentencing court makes a record. Such a record need not be exhaustive, and often the facts brought out in the criminal trial will themselves be an adequate record to show that the conditions of probation are appropriate.
In this case, the trial court made only the findings set out above in colloquy with defense counsel. Such findings might have been sufficient to support a condition of probation that defendant not associate with her former partner in crime, had that person not been her spouse. However, under the proportionality principle of ORS 138.050, the justification for interfering with statutory rights of the probationer
must be greater than the justification for a lesser invasion, and where fundamental rights are involved the sentencing court has less discretion to impose conditions in conflict therewith. In the case at bar, the sentencing court should have determined from the record whether as a matter of fact the spouse would be a bad influence so as to endanger rehabilitation or public safety and, if so, what interference with marital rights less than complete separation would serve to protect society’s interests. The factual record in this case is incomplete, and the court did not consider whether a lesser interference with defendant’s marriage would serve
to rehabilitate the defendant and secure the safety of society.
For these reasons and under the limited circumstances shown by this record, the condition of probation that defendant not associate with persons convicted of a crime must be narrowed to exclude defendant’s husband.
Affirmed as modified.