FILED: June 16, 1999

IN THE COURT OF APPEALS OF THE STATE OF OREGON

ALAN A. GABEL,

Respondent,

v.

DAN JOHNSON, Superintendent,

Snake River Correctional Institution,

Appellant.

(97-05-28767M; CA A99804)

Appeal from Circuit Court, Malheur County.

Frank J. Yraguen, Judge.

Argued and submitted January 15, 1999.

Christine Chute, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

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

Before Landau, Presiding Judge, Edmonds, Judge, and Rossman, Senior Judge.

PER CURIAM

Reversed and remanded for further proceedings.

PER CURIAM

In this habeas corpus proceeding, the state appeals a judgment ordering it to release plaintiff from incarceration. The state contends that the trial court erred in concluding that the Board of Parole and Post-Prison Supervision lacked sufficient evidence to determine that plaintiff suffered from a present severe emotional disturbance that rendered him a danger to the health or safety of the community, so as to postpone his parole release date under ORS 144.125(3).

After the case was decided by the trial court and submitted on appeal, we decided Peek v. Thompson, 160 Or App 260, ___ P2d __ (1999), which holds that the disposition on this issue turns on the extent to which the board's decision was controlled by OAR 255-060-0006 (1988). Unfortunately, neither the briefing nor the record enables us to determine whether that or a similar rule is applicable.

Reversed and remanded for further proceedings.


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