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State v. Ferre

Oregon Court of Appeals
Mar 25, 1987
84 Or. App. 459 (Or. Ct. App. 1987)

Summary

determining condition restricting the defendant from the county where the victim lives is broader than necessary, but indicating condition limiting banishment to the town, instead of the county, where the victim resides would be reasonable

Summary of this case from State v. Muhammad

Opinion

85-2172; CA A38884

Argued and submitted August 28, 1986.

Reversed and remanded March 25, 1987.

Appeal from the Circuit Court, Coos County, Richard L. Barron, Judge.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

Before Buttler, Presiding Judge, and Warren and Rossman, Judges.


WARREN, J.

Reversed and remanded for further proceedings not inconsistent with this opinion.

Rossman, J., dissenting.


Defendant appeals an order modifying a condition of his probation. He argues that the condition that he not enter Coos County except for court appearances and only on written authorization from the court through the probation officer's supervision is unconstituionally cruel or unusual or in excess of the sentence authorized by law for the crime and out of proportion to the offense. We reverse.

Defendant was charged with three counts of burglary in the first degree, one count of assault in the fourth degree and one count of harassment, all of which arose from an incident that occurred on November 10, 1985. He was staying in Eugene while he and his estranged wife, who lived in North Bend, were in the process of dissolving their marriage. He was under a restraining order not to have contact with his wife. On the night of the offense, he received a threatening phone call from a man who claimed that he had been having sexual relations with defendant's wife. Defendant became upset, took his "numchukas" and drove for two and one-half hours to North Bend, where he broke into his estranged wife's home, assaulted her and struggled with the wife's male companion and another man.

Defendant pled guilty to burglary in the second degree and was convicted and placed on supervised probation for five years with imposition of sentence suspended. The trial court required, as a condition of probation, that defendant not enter Coos County except with the court's permission. Defendant indicated in both the presentence report and at the sentencing proceedings that he intended to relocate permanently in Eugene.

In State v. Martin, 282 Or. 583, 588, 580 P.2d 536 (1978), the court stated:

"[A]n '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 P.2d 758 (1967); Barker v. Ireland, 238 Or. 1, 4, 392 P.2d 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." (Footnote omitted.)

Here, the court was concerned for the safety of defendant's wife and her friends and the possibility that, if defendant had contact with her, he might engage in further criminal behavior. At sentencing, the trial judge stated:

"Now, Mr. Ferre, there may be threats going back one way or both ways. The only problem we have is you're the only one that has carried them out. And you came down here with a weapon. And the only reason you came down here with a weapon was probably to do something with that weapon. The fact that somebody threatened you in Eugene doesn't mean they could do anything to you, because they're two and a half hours away. But you decided to come down to do something about it. * * *

"* * * * *

"I've entered the Order about Coos County because your wife lives here, and I don't want you in the county. * * *

"* * * * *

"My only concern is to make sure that you don't injure anybody else, and it's time you get some help."

The presentence report showed that defendant had ignored the restraining order that was in effect when he drove to his wife's home and assaulted her and her companions. In addition, the court stated that the psychological evaluation in the report indicated that defendant is "fairly dangerous." Although precluding defendant from entering Coos County without permission promotes the purpose of protecting the victims in this case, it is broader than necessary to accomplish that purpose. There is no indication that defendant poses a threat to anyone in Coos County outside of North Bend. On this record the geographical restriction is unnecessarily broad. The trial court may draw a more limited geographical area. If the area is sufficiently limited, the court may properly require defendant to obtain permission, on a showing of justification, to enter that area. See State v. Jacobs, 71 Or. App. 560, 564, 692 P.2d 1387 (1984).

Reversed and remanded for further proceedings not inconsistent with this opinion.


I dissent. The trial court record shows that the condition of probation was related to the offense and promotes public safety and rehabilitation. Considering the trial court's valid concern for the potential harm to the victims, I do not believe that the restriction is too broad. Accordingly, I would affirm.


Summaries of

State v. Ferre

Oregon Court of Appeals
Mar 25, 1987
84 Or. App. 459 (Or. Ct. App. 1987)

determining condition restricting the defendant from the county where the victim lives is broader than necessary, but indicating condition limiting banishment to the town, instead of the county, where the victim resides would be reasonable

Summary of this case from State v. Muhammad

striking a condition barring the defendant from entering Coos County because he posed a threat only to North Bend

Summary of this case from State v. Henderson

applying no significance to the “with permission” exception

Summary of this case from State v. Bell

In State v. Ferre, 84 Or. App. 459, 734 P.2d 888 (1987), we held invalid a condition of probation requiring that the defendant get court permission to enter Coos County, after he was convicted of committing a crime in North Bend.

Summary of this case from State v. Hitesman
Case details for

State v. Ferre

Case Details

Full title:STATE OF OREGON, Respondent, v. BLAIN FERRE, Appellant

Court:Oregon Court of Appeals

Date published: Mar 25, 1987

Citations

84 Or. App. 459 (Or. Ct. App. 1987)
734 P.2d 888

Citing Cases

State v. Bell

Id. at 564, 692 P.2d 1387. Similarly, in State v. Ferre, 84 Or.App. 459, 734 P.2d 888 (1987), we struck down…

State v. Muhammad

A majority of the jurisdictions examining the issue have held that a probation condition banishing a…