No. 01-399Supreme Court of Montana.
September 27, 2001.
ORDER
Before this Court is Petitioner’s pro se Petition for a Writ of Habeas Corpus, requesting his release from custody pursuant to our decision in State v. Giddings, 2001 MT 76, 305 Mont. 74, ___ P.3d ___. The Office of the Attorney General has responded, conceding that Petitioner is entitled to the benefit of our decision in Giddings, but observing that the County Attorney has refiled a petition to revoke in this case. Noting our rejection in Cause Number 01-368, Waterman v. State of Montana, et al., of the use of a district court “hold” order as a means of legally incarcerating inmates in their present place of incarceration pending properly conducted revocation proceedings, the State nonetheless argues the county should be allowed reasonable time to make arrangements for Petitioner’s transfer, or to allow the Department to “explore with Petitioner other options which would not require him to leave his present place of confinement.” It is asserted that “[a]11 interests would be served thereby.”
In a reply to the State’s response, Petitioner questions whether the State may refile a petition to revoke. Our decision in the Goebel and Giddings petitions for rehearing, 2001 MT 155, ¶ 32, 306 Mont. 83, ¶ 32, ___ P.3d ___, ¶ 32, makes clear that refiling is an option open to the State.
Nevertheless, the State advances no legal authority under which this Court properly could delay the release from custody of a person who has established illegal incarceration. In light of Giddings and Waterman, therefore
IT IS ORDERED that the Petition for Writ of Habeas Corpus is GRANTED. Petitioner is to be released from custody with respect to Cascade County Cause Number ADC-98-022 forthwith.
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 27th day of September, 2001.
Chief Justice
W. William Leaphart, William Hunt, Sr., Jim Regnier, Terry Trieweiler, Patricia Cotter, Jim Rice.