dissenting.
As in Jones v. Thompson, 156 Or App 226, 968 P2d 380 (1998), the majority fails to understand or apply the collateral consequences aspect of the mootness doctrine. As a result, it incorrectly affirms the trial court’s dismissal of plaintiffs habeas corpus petition. Plaintiffs current incarceration is a collateral consequence of the 1994 order of the Board of Parole and Post-Prison Supervision, the order whose validity he attacks in his petition. Whether he filed his petition while the 1994 order was in effect or at some later date, that order remains the foundation of his current incarceration, and his attack on it is not moot. I dissent from the majority’s contrary decision.
Plaintiff was originally scheduled to be released on parole on November 5, 1994.1 Before his release date, the Board, purporting to act under the authority of ORS 144.125(3)(a), as amended in 1993, extended his parole date by two years. In this petition for habeas corpus, plaintiff argued that the Board’s reliance on the amended statute in entering the 1994 order violated the ex post facto clauses of the Oregon and United States Constitutions. He also alleged that, at the time of the order, he had received a favorable psychological report and that he was therefore entitled to an immediate release on parole. See ORS 144.125(3) (1991) (requiring existence of psychiatric or psychological diagnosis and Board finding present severe emotional disturbance and dangerousness as prerequisite to postponing parole release date). On June 6,1996, the Board, relying in part on a March *2231996 report from a different psychologist, extended plaintiffs release date an additional two years, until October 1998. Plaintiff filed this petition for habeas corpus on June 7, 1996.2
In his petition for habeas corpus, plaintiff asserted that he was unlawfully imprisoned and restrained of his liberty. He specifically alleged that “I had a release date, which was on 11/5/94 [.] And since that date I have been illegally incarcerated. * * * I had a release date, and I received a ‘good psychological evaluation.’ * * * Prior to [the 1993 amendments to ORS 144.125(3)] Dr. Shellman’s evaluation of me would have left the Parole Board no choice, they would been forced to release me on 11/5/94.” Plaintiff, thus, challenges his incarceration for the entire period after November 5, 1994; the legal basis for his challenge is the alleged invalidity of the 1994 order.
Under the collateral consequences rule that I described in my dissent in Jones, plaintiffs challenge is not moot if his present incarceration is tied to the 1994 order. Plaintiff alleges, and the state does not presently deny, that the Board had to release him in 1994 if that order was invalid. Whether petitioner’s allegations in this respect are correct is something that the trial court should be allowed to determine on remand. If they are correct, all further incarceration is a collateral consequence of the 1994 order, and plaintiff has satisfied the requirement that he show that his incarceration was illegal at the time that he filed the petition. The state has not shown that the petition is moot.
That conclusion is consistent with our previous cases. In Smith v. Board of Parole, 143 Or App 408, 922 P2d *2241276, rev den 324 Or 487 (1996), there was no order based on ORS 144.125(3) when the plaintiff filed the petition, and the plaintiff did not make an issue at trial of the Board’s subsequent order that relied on that statute. Instead, he first attacked that order on appeal. We declined to consider the attack, not on mootness grounds but for lack of preservation.
In Meriweather v. Board of Parole, 140 Or App 415, 915 P2d 467 (1996), the plaintiff had a parole release date of March 27,1993. The Board, on April 20,1990, found that his dangerous condition was not in remission and that his parole date should continue to be March 27,1993. The plaintiff then filed a habeas corpus petition attacking that order. While the case was pending, and before March 27,1993, the Board held a new hearing and entered an order in which it found that his dangerous condition was not in remission and extended his parole release date to March 27,1995. We thereafter entered an order limiting the issues on review to those other than the parole release date. Subsequently, we determined that the one remaining issue, concerning the Board’s finding of April 20,1990, was moot because the subsequent order had superseded it. 140 Or App at 419-20.
The essential distinction between Meriweather and this case is that, in Meriweather, the Board extended the parole release date, based on a new hearing and new information, before the original release date and, thus, before the challenged order actually had the effect of denying plaintiffs release. By the time the original parole date arrived, there was a new order that was in itself a sufficient basis for denying his release. Thus, there were no remaining consequences of the April 20, 1990, order by the time the case reached us; the extension of the March 27,1993, parole release date was based entirely on events that occurred after that order. In contrast, in this case the Board entered the 1996 order after the 1994 order took effect; indeed, the 1996 order could not have existed without the 1994 order, because without that order the Board would not have had the authority to extend plaintiffs confinement. Meriweather does not affect this case.
On the merits, I would hold that the court erred in dismissing the petition. In Meadows v. Schiedler, 143 Or App 213, 924 P2d 314 (1996), we held that applying the 1993 *225amendments to ORS 144.125(3) to persons who committed crimes before the effective date of the amendments would violate the ex post facto clauses of the state and federal constitutions. More recently, in Merrill v. Johnson, 155 Or App 295, 964 P2d 284 (1998), we held that, under the pre-1993 version of the statute, the Board could not extend a parole date unless it found, based at least in part on a psychiatric or psychological diagnosis, that the prisoner suffered from a “present severe emotional distress.” In this case, plaintiff alleges that the only psychological examination available to the Board when it issued the 1994 order was favorable to him and that the Board was required to release him. Although the state asserts that the Board could consider all the evidence, not just the diagnosis, in deciding whether plaintiffs condition satisfied the statutory standard, it does not assert that the 1994 order made the necessary finding. If the order did not, or if the evidence before the Board would not support that conclusion, the 1994 order was invalid and plaintiff was entitled to release at that time. In that case, there would be no legal basis on this record for his continued confinement. We should remand the case to the trial court so it can resolve these essential factual questions.
For these reasons, I dissent.
Armstrong and Wollheim, JJ., join in this dissent.This statement of facts is based on the record before us and would not limit what the trial court might find based on a more complete record on remand.
In fact, plaintiff signed the petition on May 29,1996, before the Board’s June 6, 1996, order, and he presumably delivered it to the prison authorities shortly thereafter. The record does not show whether the court received the petition on or before the day that it filed it. There may be a question of when we should consider the case as being filed. Cf. Stull v. Hoke, 326 Or 72, 948 P2d 722 (1997) (civil complaint by prisoner is filed when court receives it), with Hickey v. OSP, 127 Or App 727, 874 P2d 102 (1994) (prisoner’s petition for review of disciplinary sanction is filed when delivered to prison authorities). Because I think that plaintiffs challenge to the 1994 order is not moot without regard to whether he filed it before or after the Board entered the 1996 order, I do not need to consider that question.