Garcia v. Psychiatric Security Review Board , 117 Or. App. 172 ( 1992 )

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843 P.2d 465 (1992) 117 Or. App. 172
Crosby GARCIA, Petitioner,
v.
PSYCHIATRIC SECURITY REVIEW BOARD, Respondent.
90-1106; CA A72090.
Court of Appeals of Oregon.
Submitted on Record and Briefs November 18, 1992. Decided December 9, 1992.
Harris S. Matarazzo, Portland, filed the brief for petitioner.

Charles S. Crookham, Atty. Gen., Virginia L. Linder, Sol. Gen., and Mary H. Williams, Asst. Atty. Gen., Salem, filed the brief for respondent.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

PER CURIAM.

Petitioner seeks judicial review of a final order of the Psychiatric Security Review Board (PSRB) that revoked his conditional release. We reverse and remand.

PSRB held a hearing on July 26, 1991. It found that petitioner was affected by a mental disease or defect and ordered his conditional release revoked. He contends that PSRB's finding that he suffered from a mental disease or defect at the time of the hearing is not supported by substantial evidence.^[1]

The finding was based on Exhibits 12, 13, and 17 and the testimony of Dr. Balsamo. Those exhibits were prepared between nine months and one year before the hearing. They do not purport to discuss petitioner's mental condition at the time of the hearing. Balsamo testified that he did not think that petitioner suffered from a mental disease or defect at the time of the hearing. At *466 best, the other evidence suggested that petitioner might still suffer from a mental disease or defect, not that he did. Hodgin v. PSRB, 113 Or.App. 580, 584, 833 P.2d 351 (1992). PSRB's finding is not supported by substantial evidence. ORS 183.482(8)(c); Valleur v. Psychiatric Review Board, 43 Or.App. 843, 845, 604 P.2d 439 (1979).

Reversed and remanded for reconsideration.

NOTES

[1] Petitioner was discharged by PSRB after the petition in this matter was filed. Whether that discharge moots this petition is currently under consideration in Brumnett v. PSRB, 106 Or.App. 182, 807 P.2d 347, rev. allowed 312 Or. 16, 815 P.2d 703 (1991).