Probable cause hearing, retroactive applcation of criminal law

2001 MT 155
OPINION AND ORDER
00-086
STATE OF MONTANA, v
BRYAN GOEBEL,
OPINION AND ORDER

On April 26, 2001, we issued opinions in the above entitled cases wherein we held that a probable cause hearing pursuant to § 46-23-1012(4), MCA (1999), is mandatory only when an offender has been arrested pursuant to a warrant issued by a judge.
I. Retroactive application of new judicial rules of criminal procedure
II. Retroactive application of the judicial interpretation of a statute
III. Whether the retroactive application of the newly amended § 46-23-1012, MCA (2001), to Giddings is a violation of the ex post facto clause.
Conclusion
Consequently, based on both the United States Supreme Court and Montana Supreme
Court precedent outlined above, this Court's interpretation of § 46-23-1012, MCA (1999), as set forth in both Giddings and Goebel may be applied retroactively to all similarly situated individuals because it is a declaration of what the statute meant from the day of its enactment, not just from the date of our decision. In other words, the statute applies to those individuals whose probation or parole was revoked between April 28, 1999, the effective date of § 46-23-1012, MCA (1999), and May 1, 2001, the effective date of § 46- 23-1012, MCA (2001). If, during that time period, the probationer was arrested pursuant to a warrant issued by a judge and the probationer was not afforded a probable cause hearing within 36 hours of the probationer's arrest, then, like Giddings, the District Court did not have jurisdiction to hold a revocation hearing. If, however, the probationer was afforded a probable cause hearing within 36 hours of arrest or the probationer was arrested pursuant to a warrant issued by a probation officer, in which case no probable cause hearing was required, then the District Court did have jurisdiction to hold a revocation hearing.
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.
Therefore,
IT IS ORDERED that except to the extent herein clarified, the parties' petitions for rehearing are denied.
IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order by mail to counsel of record.
DATED this 14th day of August, 2001.