KARLA M. GRAY, Chief Justice.
ORDER
Before this Court is Petitioner's pro se Petition for a Writ of Habeas Corpus requesting his release from custody. We ordered the Office of the Attorney General or counsel for the Department of Corrections to `rile a brief or memorandum establishing any reasons why the petition should not be granted immediately and why Petitioner should not be immediately released from custody. The Office of the Attorney General has now filed a response stating that the County Attorney refiled a petition to revoke in this case and the District Court has issued an order authorizing Petitioner's continued incarceration in the facility where Petitioner is currently housed. Petitioner has replied arguing that the District Court lacked jurisdiction to issue such order.
Petitioner relies on State v. Goebel, 2001 MT 73, 305 Mont. 53, ___ P.3d ___, wherein we held that under ¶ 46-23-1012(4), MCA (1999), a probable cause hearing must be held within 36 hours of a probationer's arrest pursuant to a warrant issued by a judge, and State v. Giddings, 2001 MT 76, 305 Mont. 74, ___ P.3d ___, wherein we held that because the probation and parole bureau failed to hold the probable cause hearing mandated by § 46-23-1012(4), MCA (1999) within 36 hours of Giddings' arrest, the District Court lacked jurisdiction to hold a revocation hearing. Petitioner argues that he was not afforded a probable cause hearing as contemplated by ¶ 46-23-1012(4), MCA, (1999) thus he should be released from custody immediately.
Petitioner's argument is well taken. In this Court's August 14, 2001 opinion and order denying rehearing in Goebel and Giddings, we held that when a hearing as required by § 46-23-1012(4), MCA (1999) has not been held, "then all proceedings in the District Court are void ab initio" and the State must "proceed anew as if no District Court proceedings had occurred." Moreover, we held that "to proceed anew" the State and the District Court must follow the procedure outlined in ¶ 46-23-1012, MCA (2001). See State v. Goebel, 2001 MT l55, ¶ 30, ___ Mont. ___, ¶ 30, ___ P.3d ___, ¶ 30.
We conclude that, in this case, the State and the District Court failed to follow the procedure outlined in § 46-23-1012, MCA (2001), by continuing to hold Petitioner in custody without conducting a hearing on the petition to revoke. Section 46-23-1012, MCA (2001), provides in pertinent part:
(3) A probation and parole officer may authorize a detention center to hold a probationer arrested under this section without bail for 72 hours. Within 72 hours following the probationer's detention, the probation and parole officer shall:
(a) authorize the detention center to release the probationer:
(b) hold an intervention hearing. . ; or
(c) arrange for the probationer to appear before a magistrate to set bail.
(5) After the probation and parole officer tiles a report of violation, the court may proceed with revocation of probation in the manner provided in 46-18-203. [Emphasis added.]
There is nothing to show that the State and the District Court have complied with the new procedure outlined in subsection (3) above. Moreover, to proceed with revocation of probation "in the manner provided in 46-18-203," requires that a hearing be conducted before a suspended or deferred sentence can be revoked or the terms or conditions of the sentence can be modified. Section 46-18-203(5), MCA.
The State and the District Court failed to conduct any such hearings in this case. Instead, the District Court noted in its order authorizing the Department of Corrections to continue to hold the probationer without bond that the court had taken judicial notice of prior proceedings on the petition to revoke. However, as already noted, any such prior proceedings were void ab initio and it was error for the District Court to take judicial notice of an invalid proceeding. Therefore,
IT IS ORDERED that the Petition for Writ of Habeas Corpus is GRANTED. Petitioner is to be released from custody with respect to cause number DC-94-113, forthwith.
It appears that Petitioner is in custody on other charges, however, this order does not pertain to any charges other than cause number DC-94-113.
IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by fax to counsel of record and to the District Court, followed by notice by mail to counsel of record, to the District Court, and to Petitioner at his last known address.
DATED this 6th day of September, 2001.
KARLA M. GRAY, Chief Justice.
William E. Hunt, Sr., Jim Regnier, Terry Trieweiler, Patricia Cotter, W. William Leaphart, Jim Rice, Justices.