Summary
affirming imposition of polygraph condition where expressly authorized by statute and the “[d]efendant challenge[d] neither the constitutionality of the statute nor its application to him”
Summary of this case from State v. CampbellOpinion
J87-1933, J87-2277, J87-1934, J87-2284, J87-2066, J87-2285; CA A46680
Submitted on record and briefs June 29, 1988
Affirmed April 12, 1989
Appeal from the Circuit Court, Douglas County, Thomas W. Kolberg, Judge.
Gary D. Babcock, Public Defender, Salem, filed the brief for appellant.
David B. Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Thomas H. Denney, Assistant Attorney General, Salem, filed the brief for respondent.
Before Graber, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Affirmed.
Defendant pled guilty to fraudulent use of a credit card, ORS 165.055, two counts of theft II, ORS 164.045, and attempted fraudulent use of a credit card. ORS 161.405 (1). The trial court suspended imposition of sentence and placed defendant on five years' probation, one condition of which is that he submit to polygraph examinations. He appeals, and we affirm.
We originally dismissed the appeal in this case on February 22, 1989. 95 Or. App. 442, 770 P.2d 922 (1989). On March 15, 1989, we withdrew that opinion in the light of the Supreme Court's decision in State v. Donovan, 307 Or. 461, 770 P.2d 581 (1989). 95 Or. App. 581, 770 P.2d 922 (1989).
Defendant assigns as error the imposition of the polygraph examination condition. He argues that it exceeds the court's authority in the light of State v. Brown, 297 Or. 404, 687 P.2d 751 (1984). See also State v. Lyon, 304 Or. 221, 744 P.2d 231 (1987). The evidentiary holdings of Brown and Lyon are irrelevant. ORS 137.540 (2)(b) expressly provides that a court may condition probation on a defendant's submission to polygraph examinations. Defendant challenges neither the constitutionality of the statute nor its application to him.
ORS 137.540 (2) provides, in part:
"In addition to the general conditions, the court may impose special conditions of probation for the protection of the public or reformation of the offender, or both, including, but not limited to, that the probationer shall:
"* * * * *
"(b) Submit to polygraph examination by a qualified polygraph examiner designated by the court or probation officer under terms and conditions set by the court."
In State v. Graville, 84 Or. App. 253, 728 P.2d 561 (1986), aff'd on other grounds, 304 Or. 424, 746 P.2d 715 (1987), we reached the same result without reference to the statute.
Affirmed.