dissenting.
The majority recognizes that the legislature’s power to classify criminal conduct in different ways and to designate different penalties is circumscribed by the constitutional requirement of proportionality. It then ignores that constitutional mandate by deciding that, because a court can decide not to impose incarceration for a misdemeanor, there is no proportionality problem. A court’s discretion to impose a sentence within a statutory range does not alter the fact that the ranges here provide for greater penalties for lesser offenses. That result is contrary to the constitution.
The 1971 criminal code classified and graded offenses.1 The criterion by which it designated the relative seriousness of crimes is the term of incarceration, which, for both felonies and misdemeanors, is intended to increase with the severity of the crime. ORS 161.525 provides:
“Except as provided in ORS 161.585 and 161.705, a crime is a felony if it is so designated in any statute of this state or if a person convicted under a statute of this state may be sentenced to a maximum term of imprisonment of more than one year.”
ORS 161.545 provides:
“A crime is a misdemeanor if it is so designated in any statute of this state or if a person convicted thereof may be sentenced to a maximum term of imprisonment of not more than one year.”2
The effect of the 1989 guidelines legislation was to return sentencing for felonies to the pre-1971 practice of providing a separate and distinct penalty for each offense. The statutory range for felony convictions, although not repealed, has been *109rendered largely academic. State v. Moeller, 105 Or App 434, 806 P2d 130, rev dismissed 312 Or 76, 815 P2d 201 (1991).
The term “presumptive sentence” first entered Oregon law in the legislation directing the Oregon Criminal Justice Council to establish guidelines. Or Laws 1987, ch 619. See Oregon Sentencing Guidelines Implementation Manual 6 (1989). That legislation indicates that a “presumptive sentence” is not necessarily a term of incarceration. Section 2 provides, in part:
“The council shall design the guidelines to control commitment to state and local correctional facilities, the term or range of confinement, the requirement and duration of parole, the imposition and duration of probation subject to condition and the revocation of probation and subsequent incarceration.” (Emphasis supplied.)
Section 5 provides, in part:
“The guidelines adopted by the State Sentencing Guidelines Board * * * shall control the sentences for all crimes committed after the effective date of such guidelines. * * * [T]he incarcerative guidelines and any other guidelines so designated by the board shall be mandatory and constitute presumptive sentences.” (Emphasis supplied.)
In accordance with those directions, OAR 253-02-001(3)(c) states, as one of the principles underlying the system:
“Under sentencing guidelines the response to many crimes will be state imprisonment. Other crimes will be punished by local penalties and restrictions imposed as part of probation.” (Emphasis supplied.)
Accordingly, the guidelines grid is divided by a “dispositional line.” OAR 253-03-001(7). For an offense in a grid block above the dispositional line, the presumptive sentence “shall be a term of imprisonment.” OAR 253-05-001. (Emphasis supplied.) For one below the dispositional line, the presumptive sentence ‘ ‘shall be a term of probation which may include custody and conditions of supervision,” unless the offense has a statutorily mandated sentence. OAR 253-05-007(1). (Emphasis supplied.) Custody may consist of supervision in a correctional facility or as part of a “custody program.” OAR *110253-05-011; OAR 253-05-012. Consequently, the presumptive sentence for some felonies is probation.3
Under the guidelines scheme, in imposing any felony sentence, the sentencing court must “presume” that the presumptive sentence fulfills the purposes of the guidelines. See State v. Wilson, 111 Or App 147, 826 P2d 1010 (1992). For felonies below the dispositional line, that means that the legislature has determined that the appropriate sanction is probation. Incarceration, whether within the range of the grid block or by departure, is a result of an exercise of the court’s discretion.
For all misdemeanors, on the other hand, the legislature has determined that incarceration is the appropriate sanction. ORS 161.615 provides, in part:
“Sentences for misdemeanors shall be for a definite term. The court shall fix the term of imprisonment within the following maximum limitations * * *.”
Under the misdemeanor sentencing scheme, an incarceration term within the máximums may be suspended and probation imposed in the exercise of the court’s discretion. ORS 137.010(4). That procedure is the opposite of the one dictated under the guidelines for felonies.
The majority recognizes that the proportionality determinations made in Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955), State v. Shumway, 291 Or 153, 630 P2d 796 (1981), and State v. Turner, 296 Or 451, 676 P2d 873 (1984), were “based on whether a statute required greater sentences *111for lesser offenses * * 114 Or App at 106-07. Inexplicably, it fails to recognize that that is what the two sentencing schemes do here. The test for proportionality under Article I, section 16, is the legislatively enacted term of imprisonment. Cannon, Shumway and Turner all considered proportionality challenges to penalties for graduated crimes. That is precisely the nature of defendant’s challenge here.
The possibility of incarceration for felonies below the dispositional line in the guidelines is a speculative matter.4 Incarceration for those felonies is a discretionary determination by the sentencing court, either as part of a probationary sentence or by departure. OAR 253-05-007(1); OAR 253-05-013(3); OAR 253-08-006; OAR 253-08-005. Although the legislature authorized that discretion under the statutory scheme, the presumption is that incarceration will not be imposed. A sentencing system that creates a presumption against incarceration for some felonies, but has no comparable presumption for less serious misdemeanors, creates disproportionate sentences.
Richardson, Buttler and Durham, JJ., join in this dissent.ORS 161.025(1) provides that the purposes underlying the criminal code include, among others:
“(e) To differentiate on reasonable grounds between serious and minor offenses.
“(f) To prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.
“(g) To safeguard offenders against excessive, disproportionate or arbitrary punishment.”
ORS 161.605 defines the maximum prison term for each class of felony.
Before the guidelines, probation was not a sentence. State v. Carmickle, 307 Or 1, 762 P2d 290 (1988). The guidelines did not change that for pre-guidelines dispositions. State v. Munro, 109 Or App 188, 818 P2d 971, rev den 312 Or 588 (1991). For crimes committed after November 1,1989, the guidelines expanded the term “sentence” to include probation. The term “probation sentence” is used in the rules. See, e.g, OAR 253-05-007. ORS 137.010(1) now provides:
“The statutes that define offenses impose a duty upon the court having jurisdiction to pass sentence in accordance with this section or, for felonies committed on or after November 1,1989, in accordance with rules of the State Sentencing Guidelines Board unless otherwise specifically provided by law.”
ORS 137.010(4) now provides, in part:
“If the court suspends the imposition or execution of sentence for an offense other than a felony committed on or after November 1,1989, the court may also place the defendant on probation for a definite or indefinite period of not more than five years.” (Emphasis supplied.)
Even accepting the available jail units as the measuring term, defendant’s 90-day sentences on the individual misdemeanors are disproportionate. The least serious felonies — analogous to the property misdemeanors for which defendant was convicted —have a maximum jail term of 30 days. Using 30 days incarceration as a measure against which to calculate defendant’s consecutive terms, I have been unable to postulate any scenario in which he would have served more than 120 consecutive days as part of multiple sentences for comparable felonies. See OAR 253-12-020; OAR 253-08-007. The discrepancy between the limited incarceration that can be imposed for comparable felonies and defendant’s consecutive sentences here of 630 days incarceration shocks the conscience. See Cannon v. Gladden, supra, 203 Or at 632.