[513]*513WOLLHEIM, J.
In this criminal action, defendant has been charged with unlawful manufacture of marijuana, ORS 475.856, unlawful delivery of marijuana, ORS 475.860 (2005), amended by Or Laws 2009, ch 610, § 1, unlawful possession of marijuana, ORS 475.864, and criminal forfeiture of property, ORS 131.550 to 131.602 (2005), amended by Or Laws 2009, ch 874, § 5. The state appeals a pretrial order that directed the Douglas County Sheriff to “return Eight (8) ounces of usable packaged marijuana seized from [defendant] to each of the three patients for whom [defendant] was growing marijuana under the Oregon Medical Marijuana Act.” We dismiss the appeal because it fails to present any justiciable issue.
The facts are undisputed. Defendant was a designated caregiver and grower for multiple persons who are cardholders under the Oregon Medical Marijuana Act (OMMA), ORS 475.300 to 475.346. The sheriff, acting through his deputies and pursuant to a search warrant, seized a substantial amount of marijuana from defendant’s property. Thereafter, defendant was indicted on the charges noted above. The indictment alleged that defendant possessed 150 grams or more of marijuana.
Before trial, defendant moved pursuant to ORS 475.304(5) to have the dried and usable marijuana that had been seized returned to the cardholders for whom defendant was the designated caregiver and grower.1 At the hearing on the motion, the trial court stated:
“What I want is eight ounces returned to each of the three participants and then later on, if it doesn’t come to trial in a timely way they can apply for more if it’s still there and * * * they have to stipulate to quality photography of what was removed as a condition of getting it.”
[514]*514The trial court then issued its order on the motion. That order provided:
“Pursuant to ORS 475.304(5), Douglas County Sheriff shall return Eight (8) ounces of usable packaged marijuana seized from [defendant] to each of the three patients for whom [defendant] was growing marijuana under the Oregon Medical Marijuana Act, as listed below[.]”
The trial court stayed its order for 20 days, during which time the state filed motions to reconsider the order and, if the motion to reconsider was denied, to extend the stay of the order until an appellate judgment issued. In addition, the sheriff filed a motion to intervene, continue the stay of the order, and reconsider the order. Following a hearing on those motions, the trial court allowed the sheriff to intervene and, again, stayed the order, this time for a period of 15 days. Ultimately, the trial court entered an order denying the motions for reconsideration. In response to the motions to reconsider, defendant moved for leave to amend his original motion to include ORS 475.323(2) as a basis for relief.2 That motion was never acted on by the trial court, and, therefore, defendant’s original motion was never amended. The order to return eight ounces of the seized marijuana to each of the three cardholders was executed by the sheriff.
On appeal, the state and the sheriff argue that the trial court erred when it ordered the sheriff to release some of the marijuana that was seized from defendant. The state [515]*515asserts that, although the order is not now stayed and the sheriff has complied with the order, the state’s appeal is not moot because the sheriff continues to hold the rest of the marijuana that defendant contends should be released. Regarding the merits of its appeal, the state contends that the order was not authorized by either ORS 475.323(2) or ORS 133.643.3
At oral argument, the state again disclosed that “the sheriff in fact did comply with that [order] by turning over eight ounces to each” of the three patients. The state also conceded that an order by this court reversing the trial court would not grant relief with respect to the released marijuana. Specifically, the state’s attorney acknowledged:
“[T]he reality is that we can’t get that marijuana back that has been released to the cardholders. And so, if this court were to issue an order, it’s not like the sheriff can go out and collect the marijuana * *
Lastly, according to the state at oral argument, in the time since this case has been on appeal, no further requests for disbursements of the marijuana held by the sheriff have been made by the cardholders nor have any further disbursements been released by the sheriff.
As an initial matter, we pause to address the basis of our jurisdiction over the sheriff and the state’s appeal. [516]*516Previously, we determined by order that we had jurisdiction over the state’s appeal because
“a motion under ORS 475.323(2) is a special statutory proceeding and [ ] the conclusive disposition of a motion under that statute is appealable under ORS 19.205(5). The order being appealed is an order conclusively disposing of a motion under ORS 475.323(2) and, as such, is appeal-able.”
We note, however, that the order from which the appeals are taken is an order pursuant to ORS 475.304(5) and not an order pursuant to ORS 475.323(2). Defendant’s original motion was a motion based solely on ORS 475.304(5). In addition, the order itself provides that it is based on ORS 475.304(5). The application of ORS 475.323
Free access — add to your briefcase to read the full text and ask questions with AI
[513]*513WOLLHEIM, J.
In this criminal action, defendant has been charged with unlawful manufacture of marijuana, ORS 475.856, unlawful delivery of marijuana, ORS 475.860 (2005), amended by Or Laws 2009, ch 610, § 1, unlawful possession of marijuana, ORS 475.864, and criminal forfeiture of property, ORS 131.550 to 131.602 (2005), amended by Or Laws 2009, ch 874, § 5. The state appeals a pretrial order that directed the Douglas County Sheriff to “return Eight (8) ounces of usable packaged marijuana seized from [defendant] to each of the three patients for whom [defendant] was growing marijuana under the Oregon Medical Marijuana Act.” We dismiss the appeal because it fails to present any justiciable issue.
The facts are undisputed. Defendant was a designated caregiver and grower for multiple persons who are cardholders under the Oregon Medical Marijuana Act (OMMA), ORS 475.300 to 475.346. The sheriff, acting through his deputies and pursuant to a search warrant, seized a substantial amount of marijuana from defendant’s property. Thereafter, defendant was indicted on the charges noted above. The indictment alleged that defendant possessed 150 grams or more of marijuana.
Before trial, defendant moved pursuant to ORS 475.304(5) to have the dried and usable marijuana that had been seized returned to the cardholders for whom defendant was the designated caregiver and grower.1 At the hearing on the motion, the trial court stated:
“What I want is eight ounces returned to each of the three participants and then later on, if it doesn’t come to trial in a timely way they can apply for more if it’s still there and * * * they have to stipulate to quality photography of what was removed as a condition of getting it.”
[514]*514The trial court then issued its order on the motion. That order provided:
“Pursuant to ORS 475.304(5), Douglas County Sheriff shall return Eight (8) ounces of usable packaged marijuana seized from [defendant] to each of the three patients for whom [defendant] was growing marijuana under the Oregon Medical Marijuana Act, as listed below[.]”
The trial court stayed its order for 20 days, during which time the state filed motions to reconsider the order and, if the motion to reconsider was denied, to extend the stay of the order until an appellate judgment issued. In addition, the sheriff filed a motion to intervene, continue the stay of the order, and reconsider the order. Following a hearing on those motions, the trial court allowed the sheriff to intervene and, again, stayed the order, this time for a period of 15 days. Ultimately, the trial court entered an order denying the motions for reconsideration. In response to the motions to reconsider, defendant moved for leave to amend his original motion to include ORS 475.323(2) as a basis for relief.2 That motion was never acted on by the trial court, and, therefore, defendant’s original motion was never amended. The order to return eight ounces of the seized marijuana to each of the three cardholders was executed by the sheriff.
On appeal, the state and the sheriff argue that the trial court erred when it ordered the sheriff to release some of the marijuana that was seized from defendant. The state [515]*515asserts that, although the order is not now stayed and the sheriff has complied with the order, the state’s appeal is not moot because the sheriff continues to hold the rest of the marijuana that defendant contends should be released. Regarding the merits of its appeal, the state contends that the order was not authorized by either ORS 475.323(2) or ORS 133.643.3
At oral argument, the state again disclosed that “the sheriff in fact did comply with that [order] by turning over eight ounces to each” of the three patients. The state also conceded that an order by this court reversing the trial court would not grant relief with respect to the released marijuana. Specifically, the state’s attorney acknowledged:
“[T]he reality is that we can’t get that marijuana back that has been released to the cardholders. And so, if this court were to issue an order, it’s not like the sheriff can go out and collect the marijuana * *
Lastly, according to the state at oral argument, in the time since this case has been on appeal, no further requests for disbursements of the marijuana held by the sheriff have been made by the cardholders nor have any further disbursements been released by the sheriff.
As an initial matter, we pause to address the basis of our jurisdiction over the sheriff and the state’s appeal. [516]*516Previously, we determined by order that we had jurisdiction over the state’s appeal because
“a motion under ORS 475.323(2) is a special statutory proceeding and [ ] the conclusive disposition of a motion under that statute is appealable under ORS 19.205(5). The order being appealed is an order conclusively disposing of a motion under ORS 475.323(2) and, as such, is appeal-able.”
We note, however, that the order from which the appeals are taken is an order pursuant to ORS 475.304(5) and not an order pursuant to ORS 475.323(2). Defendant’s original motion was a motion based solely on ORS 475.304(5). In addition, the order itself provides that it is based on ORS 475.304(5). The application of ORS 475.323(2) was not raised by any party until a later hearing on the state’s motion to reconsider the order — and, at that time, the party raising the applicability of ORS 475.323(2) was the state. As already noted, the trial court ultimately denied the motion to reconsider. In doing so, the trial court made no rulings, comments, or statements regarding the applicability of ORS 475.323(2). Moreover, although defendant moved for leave to amend his original motion to include ORS 475.323(2) as a basis for relief, that leave was never granted and the original motion was never amended. Thus, the order from which the state appeals is an order deciding a motion made solely under ORS 475.304(5).
We need not, however, reexamine the basis for our jurisdiction to determine whether an order based on a motion under ORS 475.304(5) is an appealable special statutory proceeding pursuant to ORS 19.205(5), because we now hold that this appeal is not justiciable because the proceedings are moot or are otherwise not ripe for review.
As we have noted before, “[t]his court has an independent obligation to determine whether a case is ‘justiciable.’ ” Cyrus v. Board of County Commissioners, 226 Or App 1, 5, 202 P3d 274 (2009) (citing Oregon Medical Association v. Rawls, 281 Or 293, 296, 574 P2d 1103 (1978)). Mootness and ripeness are part of that inquiry.
[517]*517We outlined the relevant precepts regarding mootness in State v. Panduro, 224 Or App 180, 182-83, 197 P3d 1111 (2008):
“The question whether a case is moot is ‘part of a larger two-part inquiry into whether a case is justiciable.’ * * * The first step is to determine whether ‘a case presents a controversy between parties with adverse interests,’ and the second step is to determine whether ‘the court’s decision will have a practical effect on or concerning the rights of the parties.’ ”
(Citations omitted.) The defendant in Panduro sought dismissal of an interlocutory appeal in his criminal prosecution because he had been deported and it was uncertain whether he would ever return to the United States or be brought to trial. Id. at 182. We noted that
“the relief that the state seeks — admission of its evidence against defendant — is real and concrete, not abstract or hypothetical and will, as a matter of law, alter the state’s rights and defendant’s obligations. The possibility exists that defendant may not return to the United States, but to base our determination of mootness on that possibility would be speculative.”
Id. at 183.
In contrast, the Oregon Supreme Court in Brumnett v. PSRB, 315 Or 402, 404, 407, 848 P2d 1194 (1993), held that the petitioner’s case was moot where he had challenged his confinement by the Psychiatric Security Review Board (PSRB) and the PSRB had released him unconditionally while review was pending. The petitioner argued that his case was not moot, because he was still subject to a statutory obligation to pay all or part of the costs of his care. Id. at 404. The state, however, had not assessed, attempted to assess, or started any proceeding to assess any amount against the petitioner. Id. at 406. The court held:
“The mere possibility that the state might seek such an order at some future date is not sufficient to make dismissal inappropriate. The state has not said that it intends to seek reimbursement from petitioner. Rather, one representative of the state has asserted only that it might do so some time [518]*518in the future. The moving party has carried its burden to establish that the case is moot.”
Id. at 407 (emphasis in original).
Here, in light of the state’s concession at oral argument that it cannot retrieve the released marijuana, any determination about the lawfulness of the trial court’s order would have no practical effect on the parties. The state’s requested relief in this appeal is to “vacate the Order For Return and remand this case with directions for the trial court to deny defendant’s motion for release of the marijuana to the cardholders.” Yet, the state has conceded that an order by this court would not provide the state with relief as to the already released marijuana. Given the concession by the state at oral argument — that “the reality is that we can’t get that marijuana back that has been released to the cardholders” — there is a near certainty, and not just a mere possibility, that the released marijuana could not be retrieved. Thus, the circumstances before us are not similar to those of Panduro — where only a possibility existed that the relief granted would have no practical effect on the parties — and a determination of mootness based on the state’s concession is not speculative. Thus, we hold that any controversy about the released marijuana is moot.4
The dissent states that this case is not moot because there remains the pending criminal prosecution against defendant. The dissent notes that the state was entitled to offer into evidence against defendant the marijuana that the trial court ordered released. In addition, the dissent states that the case is not moot because the amount of marijuana defendant possessed remains an issue.5 232 Or App at 525-26 (Edmonds, P. J., dissenting). The indictment in this case [519]*519alleged that defendant manufactured, delivered, or possessed 150 or more grams of marijuana. The trial court’s order required the sheriff to return three eight-ounce packages of “usable packaged marijuana,” for a total of 1.5 pounds. The record is not clear regarding how many pounds of marijuana were seized from defendant, but the record does indicate that the state still retained a lot of marijuana. We take judicial notice that eight ounces is approximately 227 grams. The trial court ordered the sheriff to release more than 678 grams of marijuana. That amount of marijuana is sufficient to prove that defendant possessed, manufactured, or delivered 150 or more grams of marijuana as alleged in the indictment.
The state’s theory at oral argument as to why this case is not moot rested not on the written order entered by the trial court, but on an oral comment that the trial court made at the original motion hearing. As noted above, the trial court had stated:
“What I want is eight ounces returned to each of the three participants and then later on, if it doesn’t come to trial in a timely way they can apply for more if it’s still there and * * * they have to stipulate to quality photography of what was removed as a condition of getting it.”
Based on that comment, the state contended at oral argument:
“The theory that we had that this case is not moot is the fact that * * * the sheriff still has some [marijuana] and that based on this order at some time in the future the claimants can, or the cardholders can, ask for additional disbursements of the marijuana that is being held by the sheriff.”
In addressing that contention by the state, we first pause to recognize that the trial court’s oral comment pertaining to future applications for disbursements was not incorporated into the written order from which the state appeals. And, just as importantly, the state has indicated that the cardholders have not yet made such applications. Therefore, we conclude that, as in Brumnett — where the mere possibility that the state could seek reimbursement from the defendant failed to save the case from being moot— [520]*520the mere possibility here that the cardholders might apply for additional disbursements of marijuana at some future date is insufficient to make dismissal on mootness grounds inappropriate.
Finally, we reach the inquiry of ripeness. In McIntire v. Forbes, 322 Or 426, 434, 909 P2d 846 (1996) (quoting Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982)), the court stated, “For a claim to be justiciable, ’[t]he controversy must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue.’ ” As noted above, the cardholders here have not yet indicated that they intend to make any applications for future disbursements of the marijuana. Any dispute over the marijuana still being held by the sheriff would therefore be based on future events of a hypothetical nature. As such, the issue that the state raises as to the marijuana that is still in the sheriffs possession simply is not ripe at this time.
Appeal dismissed.