The opinion
GRABER, P. J. pro tempore,
dissenting.
I respectfully dissent, because there is a difference in “actual duration of imprisonment,” Harris v. Board of Parole, 288 Or 495, 503 , 605 P2d 1181 (1980), between an indefinite term of imprisonment and a term certain.
The majority correctly describes the process by which the Board acts in a parole consideration hearing for a person who was sentenced as a dangerous offender. It also correctly *89 notes that the question here is whether the order resulting from a parole consideration hearing that is held more than two years before the date initially set by the Board “determines the actual duration” of petitioner’s imprisonment. Harris v. Board of Parole, supra, 288 Or at 503 . I differ from the majority in my answer to that question.
The majority relies on the fact that, had the Board found petitioner’s condition to have been absent or in remission, “the period of incarceration could be longer, but not shorter.” 103 Or App at 88. That reasoning makes the appealability of the order entirely dependent on the timing of the hearing. Following the majority’s logic, an order setting a parole release date or an order declining to do so, which is entered shortly before the minimum term expires, would be appealable after an identical proceeding. The correct focus is on the nature of the proceeding. In my view, the proceeding always affects the actual duration of imprisonment, no matter when it occurs. 1
In this case, even if the Board had found that the condition that made petitioner dangerous was absent or in remission, it could not have set his release date earlier than his original parole consideration hearing date, which is the earliest date that he is eligible for parole. See ORS 144.228(l)(a), (c). Consequently, as the majority points out, the Board could not have changed his “minimum ‘duration of imprisonment.’ ” Meriweather v. Board of Parole, 307 Or 509, 511 , 770 P2d 593 (1989), quoting Harris v. Board of Parole, supra, 288 Or at 503 . (Emphasis supplied.) However, if the Board had found that the condition was absent or in remission, it would have had to set his release date, which would have determined his “actual duration of imprisonment.” Harris v. Board of Parole, supra, 288 Or at 503 . (Emphasis supplied.) The nature of the proceeding was to determine whether to set a date certain for parole and thereby to fix petitioner’s parole release date. Accordingly, the order had the potential to affect the actual duration of his imprisonment.
Simply put, I think that there is a difference in *90 “actual duration of imprisonment” between an indefinite term (“108 months or more”) and a term certain (108 months or 120 months or 132 months). I would, therefore, hold that the order was a “final order” under ORS 144.335 and that we have jurisdiction to review it. 2
I also note that the Board produces a reviewable record in this type of proceeding. ORS 144.228(2); OAR 255-38-005(3); see Harris v. Board of Parole, 47 Or App 289, 297 , 614 P2d 602 , rev den 290 Or 157 (1980).
For the sake of clarity in future proceedings, I would also note that OAR 255-40-005 has been amended, effective November 1,1989, after petitioner’s parole consideration hearing. Now, the determination whether a dangerous offender’s condition is absent or in remission always affects the prisoner’s entitlement to a personal review, which considers whether the prisoner’s progress shows outstanding reformation so as to warrant a reduction in the time served. Even under the majority’s reasoning, an order like the present one, issued on or after November 1,1989, is a final order.