
    Argued and submitted March 16,
    appeal dismissed April 13, 1988
    In the Matter of the Application of John Joseph Tellone for a Writ of Habeas Corpus. JOHN JOSEPH TELLONE, Appellant, v. MAASS, Respondent.
    
    (86C-11916; CA A45393)
    752 P2d 354
    George E. Price, argued the cause and filed the brief for appellant.
    Philip Schradle, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
    Before Warden, Presiding Judge, and Van Hoomissen and Graber, Judges.
    PER CURIAM
   PER CURIAM

Petitioner appeals the dismissal of his petition for a writ of habeas corpus. At oral argument, petitioner’s counsel advised us that petitioner is no longer in defendant’s custody. Given that fact, any order requiring defendant to deliver petitioner to the court or release him would be futile. This appeal, therefore, must be dismissed. Rahm v. Keeney, 83 Or App 266, 730 P2d 1297 (1986).

Appeal dismissed.  