dissenting.
I doubt that "if [the legislature] had considered the problem,”1 it would have ever intended ORS 137.540(10) to be applied as the majority does today, and judging by our other cases, as circuit courts are doing with increasing frequency.
Three thousand dollars for a rape victim seems reasonable. But I understand the majority to sanction far broader use of ORS 137.540(10). Suppose a defendant was charged with felony hit-and-run, ORS 483.602, 483.991(12).2 Suppose there was evidence at trial that the victim suffered a broken arm in the accident. Suppose at sentencing the trial judge said: "Mr. Defendant, you can have your choice; either I am going to send you to prison for five years, or I will put you on *105probation, but only on the condition that you pay the other driver $25,000 because of the broken arm and physical anguish you caused.”
I find nothing in today’s majority opinion to indicate that this court would do other than uphold a probationary sentence subject to this condition on the ground that it is within the "large measure of discretion” of the trial court because fixing the amount of reparation in "physical * * * anguish” situations is "exceedingly difficult.” 24 Or App at 102.
The serious legal problems raised by such a sentence are legion. The defendant is being deprived of property without an opportunity to be heard. Both the defendant and the victim are being deprived of their right to have a jury trial on the civil liability question.3 If there were subsequent civil litigation, would any collateral estoppel arise from the criminal sentence? If there were subsequent civil litigation, would it be possible for the victim to receive double indemnity?
Footnote 1 of the majority opinion distinguishes between "restitution” and "reparation.” I am not sure I understand the distinction drawn or the value of attempting to draw one. In any event, it seems to me that, as the majority applies ORS 137.540(10), there is a perfect synonym for both terms — civil damages. In short, the majority approves joinder of questions of criminal liability with questions of liability for civil damages for trial, but then does not allow a trial on civil liability.
ORS 137.540(10) can and should, I submit, be given a more limited interpretation. "Reparation” authorized by that statute should only be invoked in situations where the amount of damages the victim has sustained are liquidated by adjudication or binding agreement between victim and defendant.
I concede that a majority of the cases from other jurisdictions are contrary to the analysis I here sug*106gest. But in ascertaining and applying Oregon Law, we are not bound to follow what other jurisdictions have done regardless of whether the reasoning employed elsewhere is persuasive. In this regard, I find the reasoning of the court in State v. Jim Williams, 57 Mich App 439, 441-42, 225 NW2d 798 (1975) — holding in effect that this type of sentence presents no constitutional problem because the defendant has the "choice” of refusing probation subject to unacceptable conditions and going to prison — to be singularly unpersuasive.
Since I would remand for resentencing in accordance with the views expressed herein, I respectfully dissent.
State v. Welch, 264 Or 388, 394, 505 P2d 910 (1973).
Amended, Oregon Laws 1975, ch 451, §§ 94, 271.
U.S. Const. amend. VI; Oregon Constitution, Art I, § 17.