dissenting.
The sentencing judge imposed a very questionable sentence, which in turn has led a majority of this court to an equally questionable decision.
ORS 138.040 clearly provides that “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,” and nothing else. ORS 138.040 does allow an appeal for trial error in addition to the very restricted appeal of a sentence. The majority’s reading of ORS 138.040 is that a judgment suspending imposition of a sentence placing a defendant on probation is a judgment on a conviction but is not a sentence. Such a strained construction cannot be justified. Of course a sentence to probation is a sentence.
In State v. Martin, 282 Or 583, 580 P2d 536 (1978), the trial judge suspended execution of sentence and placed the defendant on probation for five years, ordering that the defendant not associate with her husband. This court referred to identical language in the companion statute to ORS 138.050:
“Under a plain reading of this statute [ORS 138.050], a probation order is appealable if it is ‘a judgment on a conviction.’ ORS 138.040 provides, in part, that a ‘judgment * * * *15placing 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 138.040 and is thus appealable. * * *” Id. at 587.
The court then reviewed the sentence of probation within the restricted review of sentences under the former statute, which contained the same language as the present statute limiting review, except for consideration of proportionality, which has since been deleted. ORS 138.050 (1975) (amended by Or Laws 1977, ch 372, § 14).
In sum, this court has interpreted ORS 138.050 to include review of a judgment of probation as a sentence. If a judgment of probation is a sentence under ORS 138.050, it must be a sentence under ORS 138.040. If it is, we go no further with this case. The sentence was within the statutory limits. The sentence may well have been unusual and called for a totally unwarranted waste of the state’s precious corrections resources, but defendant does not raise these grounds for relief.
Incidentally, the sentencing judge thought she had imposed a sentence. She wrote afterwards, “the sentence imposed in this case is presently on appeal.” (Emphasis added.) As the old saying goes, if it looks like a duck, acts like a duck and sounds like a duck, by golly, it’s a duck. The majority has distorted a plain old sentence into a non-sentence and, indeed, a non sequitur.
On the second issue, the majority has trapped itself into allowing every criminal defendant receiving a probation sentence to tell the sentencing judge what is or is not acceptable to him or her and, at the same time, to direct how much money the state must spend to incarcerate the defendant.
In discussing the first issue, I referred to ducks. With respect to the second issue, we have a classic example of a tail wagging a dog. Who is in charge? The offender or the judge? Under the meager corrections resources we have, coupled with today’s decision in this case, a Class C felony offender can refuse probation that requires, for example, mental health treatment or work release, and instead can demand being sentenced to the Oregon State Penitentiary for the five-year *16maximum, knowing the actual sentence served will average 42 days with a maximum of one year on parole before final discharge. Convicted criminals should not be able to order off of their own selected corrections menu. I would hope a sentencing judge would know more about what is an appropriate sentence than the offender.
Of course, if a judge encounters one of these offenders who refuses probation, the judge can treat that refusal as a probation violation. The offender does not have to go out and commit another crime to violate probation. But every violation works against the offender’s record and is often grounds for additional sanction. It should be. Failure to cooperate with the court should not be tolerated or ignored.
CONCLUSION
This case should never have come to this court. It involves a sanction so minor — a maximum fine of $750 — that no trial court should have ever let the case go this far. The court should have found a violation and imposed the fine. Because this was not done, probably more than ten times that much money has been squandered in this appeal and, even worse, questionable law has been injected into the books with the decision of the majority.
Peterson, C. J., joins in this dissenting opinion.