dissenting.
I respectfully dissent from the Court’s conclusion that the hearing before the district court cured any due process violations that may have occurred in the NICI process.
State v. Wolfe, 99 Idaho 382, 387, 582 P.2d 728, 733 (1978) established that a prisoner in whose case the district court has retained jurisdiction is entitled to due process of law in the development of a recommendation by the correctional authorities concerning whether the district court should place the prisoner on probation.
I could agree with the Court’s rationale that the hearing in district court cured any constitutional deficiency in the development of the recommendation that Owen not be placed on probation, except for the fact that the district court required Owen to rebut the recommendation that he not be placed on probation. In my view, if there were due process violations in the development of the recommendation, the recommendation should not have been considered by the district court, and the district court should not have required Owen to rebut the recommendation. Therefore, I would remand the case to the district court for a determination of the truth of Owen’s allegations that his right to due process was violated. If the district court determines that these allegations are true, the district court should conduct a new hearing concerning whether Owen should be placed on probation. In this hearing, the district court should not consider the recommendation.
*718McDEVITT,* J., concurs.