FILED: February 23, 2000

IN THE COURT OF APPEALS OF THE STATE OF OREGON

JAMES THOMAS FURGERSON,

Appellant,

v.

ROBERT LAMPERT,
Superintendent,
Snake River Correctional Institution,

Respondent.

(98-11-30163M; CA A105317)

Appeal from Circuit Court, Malheur County.

F. J. Yraguen, Judge.

Argued and submitted January 27, 2000.

Bob Pangburn argued the cause and filed the brief for appellant.

Judy Carol Lucas, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

PER CURIAM

Reversed and remanded with instructions to remand to the Parole Board for further consideration. Judgment for attorney fees vacated.

PER CURIAM

Petitioner appeals from the trial court's dismissal of his habeas corpus petition. ORS 34.680(1). The dismissal was error under our holding in Peek v. Thompson, 160 Or App 260, 980 P2d 178 (1999), decided after the trial court ruled.

The trial court also entered judgment against petitioner in the amount of $475 for reimbursement of court-appointed attorney fees. Petitioner also assigns error to the entry of that judgment. The trial court must remand this matter to the Parole Board with instructions to apply OAR 255-60-006 (1988) in determining whether to extend petitioner's parole release date. It therefore necessarily follows that this case is not "concluded" as required by ORS 151.505 before reimbursement of fees can be ordered.

Reversed and remanded with instructions to remand to the Parole Board for further consideration. Judgment for attorney fees vacated.


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