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                                                               No. 01-736

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 243

                                                         _______________



                                                   OPINION AND ORDER

                                                    STANA JEAN VANCE,

                                                                Petitioner,

                                                                       v.

                                                  WARDEN JO ACTON and

                                            WARDEN JAMES McDONALD,

                                                              Respondents.



¶1 Stana Jean Vance (Vance), pro se, filed a Petition for Writ of Habeas Corpus,
contending she was entitled to the benefit of this Court's decision in State v. Giddings,
2001 MT 76, 305 Mont. 74, 29 P.3d 475, because she did not receive a probable cause
hearing within 36 hours of her arrest under a bench warrant for probation revocation. The
State of Montana has conceded that Vance is entitled to the benefit of our Giddings
decision, and indicates it intends to proceed in accordance with § 46-23-1012, MCA
(2001), by filing a petition for revocation of deferred sentence and obtaining a bench
warrant. Vance argues, however, that a petition for revocation of a deferred sentence must
be filed during the period of the deferred sentence, under § 46-18-203, MCA. Since her
deferred sentence expired in April 2001, she argues that the refiling of a petition for
revocation of an expired sentence is prohibited under the law. On November 20, 2001, we

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directed the State to file a response to Vance's argument.

¶2 The State has responded, claiming it may proceed anew with revocation proceedings
under § 46-23-1012, MCA (2001), even though Vance has discharged her original
sentence.

¶3 There is no dispute that the probation violation occurred in October of 1999, nor does
the State dispute the fact that Vance's original sentence expired in April 2001. However,
the State relies on State v. Goebel, 2001 MT 155, ¶ 30, 306 Mont. 83, ¶ 30, 31 P.3d 340, ¶
30, where we held that due to the jurisdictional defect in the proceedings, all subsequent
proceedings in the district court were void ab initio, and the parties are therefore returned
to the same position "as if no District Court proceedings had occurred." Id., ¶ 30 (citation
omitted). The State infers from this holding that the original sentence is tolled during the
period of the void proceedings, for purposes of refiling a petition to revoke. The State cites
¶ 32 of State v. Goebel, supra, where we said:

        While Giddings, and others who are similarly situated, were not afforded a hearing
        pursuant to § 46-23-1012, MCA (1999), and thus the District Court lacked
        jurisdiction to hold a revocation hearing in their cases, the State may now refile the
        petition to revoke their probation pursuant to § 46-23-1012, MCA (2001), as long as
        those probationers were still "under the custody or supervision of the department of
        corrections" on May 1, 2001.

The State argues that since Vance was under the custody or supervision of the Department
of Corrections on May 1, 2001, pursuant to the void judgment of June 8, 2000, the State is
entitled to refile, irrespective of the fact that the original sentence expired in April, 2001.
We disagree.

¶4 The fact that the previous revocation proceedings were defective and therefore void ab
initio does not mean that time stood still during the period of defective proceedings. Time
passed, and Vance's original sentence expired. Moreover, the provisions of § 46-18-203,
MCA, are not suspended by virtue of our decision in Giddings and Goebel, supra. Section
46-18-203(2), MCA, clearly states:

        The petition for a revocation must be filed with the sentencing court during the
        period of suspension or deferral.



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¶5 There is no provision in the law allowing the State to refile a petition for revocation of
suspended or deferred sentence to "relate back to the date of the probation violation" as the
State urges. Although we have held in Giddings and Goebel that the State may refile a
petition to revoke a suspended or deferred sentence, such refiling is conditional upon the
petition being filed during the period of suspension or deferral of sentence, as § 46-18-203
(2), MCA, requires. Once the term of the sentence expires, the State has no more power to
refile a petition to revoke that suspended or deferred sentence than it would have to file an
original proceeding to revoke under those circumstances. Accordingly,

¶6 IT IS HEREBY ORDERED that Stana Jean Vance's Petition for Writ of Habeas
Corpus is GRANTED. The State of Montana is directed to release Vance from custody
with respect to the captioned cause number within 48 hours of the date of this Order.

¶7 IT IS FURTHER ORDERED that the Clerk of this Court is directed to serve notice of
this Order by mail to Stana Jean Vance at her last known address and upon the
respondents' attorneys.

DATED this 5th day of December, 2001.

                                                      /S/ KARLA M. GRAY

                                                    /S/ PATRICIA COTTER

                                                /S/ TERRY N. TRIEWEILER

                                                         /S/ JIM REGNIER

                                                    /S/ JAMES C. NELSON

                                               /S/ W. WILLIAM LEAPHART

                                                             /S/ JIM RICE




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