dissenting.
In the present case the defendant was initially placed on probation for four years and his probation was revoked after three years. The court then sentenced the defendant to a four-year term of imprisonment authorized by OKS 137.550 which provides “* * * [the court may] impose any sentence which originally could have been imposed. * * *” This was on July 27, 1970. The court at that time considered that it-had two options — immediate imprisonment or an additional time of probation for him. Instead of *106incarcerating the defendant, the court obviously felt that Ms chances for rehabilitation would be enhanced by extending Mm another opportunity on probation. The defendant accepted the probation. The majority holds that the extension of probation beyond five years from its commencement, to-wit, “beyond June 19, 1972, was beyond the court’s authority and void.” Even if we accept this as the law, that should not make void the four-year sentence wMch was imposed and which was to be executed if probation did not work out.
"While in my view it would be more consonant with the rehabilitative pMlosophy expressed in our constitution① to permit the defendant to accept probation, at least during the period of Ms unexecuted sentence, certainly he should not be permitted to escape answering for Ms offense by the device of accepting the lesser intrusion and then, when caught in Ms own trap of probation violation, be heard to say it was all unlawful anyway. It is my view that the defendant, at least, should be required to serve the unexpired portion of Ms four-year sentence.② The majority declares void both the four-year sentence and the probation. I therefore dissent.
The Constitution of Oregon provides:
“Laws for the punishment of crime shall be founded on the principles of reformation * * Art I, § 15.
While argument may be made that such a rule as here contended for would permit a judge to, in effect, keep a defendant on probation during the period of his unexecuted sentence, even though it were for a longer period than five years, the statute contains provision for terminating probation when it has served its purpose. ORS 137.550 (1) (b) provides: “The court may at any time discharge a person from probation.”