dissenting:
I dissent and under the circumstances I would affirm the judgment of the trial court. Some background information may shed a bit more light on the entire matter.
On November 20, 1961 Jesseph, hereinafter referred to as the defendant, pled guilty to the crime of forgery, and thereby subjected himself to a sentence to the state penitentiary for a term of not less than one year, nor more than fourteen years. The defendant applied for probation and on January 29, 1962 he was placed on probation by order of the trial court.
The order granting probation set the probation period at two years, “subject to the following terms and conditions.” A number of “terms and conditions” were then set out in the order entered by the court, one of which reads as follows:
“At the conclusion of the period of probation imposed upon you by the Court, you may make a written application for termination. When such application is ap*316proved by the Chief Probation Officer and the Court, termination zoill be granted by Court order.”. (Emphasis added.)
Digressing for a moment from my recitation of the facts, it seems rather clear that though the defendant’s period of probation was set for two years,-his probationary period did not come to an abrupt halt and automatically expire after two years had simply come and gone. On the contrary, one important provision in the defendant’s probationary order, which he presumably was fully acquainted with, was that the. termination of his probationary period would only be by an appropriate order of court, upon his making an application therefor and having his application thereafter approved by both the Probation Officer and the Court. The record before us does not contain any such order terminating the defendant’s probation. Hence, in my view of the matter under the express terms of his probation the defendant remained on probation until such time as his probation was terminated by formal order of court, subject of course to the statutory provision that no period of probation may be for more than five years. C.R.S. 1963, 39-16-6.
Back to a review of the events leading up to the present controversy. Sometime later on in 1962' the defendant was given permission by the local Jefferson County probation authorities to move to New Mexico in order that he might be near his father.
In 1963 the defendant was brought back to Jefferson County where a hearing was held by the trial court regarding possible revocation of probation. At the conclusion of this hearing the defendant was continued on probation and permitted to return to New Mexico.
On January 23, 1964 the trial court at the request of the .probation authorities extended the defendant’s probationary period for an additional year. The defendant was not present in court at the time this extension *317order was entered, nor did he have any prior notice that such a hearing was to be held.
Sometime in February 1964 the defendant apparently ran afoul of the law in New Mexico and in any event was thereafter returned to Jefferson County for a second hearing as to whether his probation should be revoked.
On April 6, 1964 the trial court held a full-scale hearing as to whether the defendant’s probation should be revoked, or once again continued. Sworn testimony was taken from the probation authorities, as well as from the defendant, his wife and his mother. The defendant at this hearing was represented by counsel of his own choosing. A perusal of the record reveals that all parties to this hearing, including the trial court, were concerned with one question only: namely had the defendant violated the terms of probation to the end that his probation should be revoked and sentence imposed? At this hearing there was no suggestion by anyone that the defendant’s period of probation had ended on January 29, 1964, and that the trial court therefore had no jurisdiction to revoke his probation and sentence him.
At the conclusion of the hearing held on April 6, 1964 the trial court revoked the defendant’s probation and sentenced him to a term of from 4 to 5 years in the state penitentiary.
The defendant was then taken to the state penitentiary to serve out the aforementioned sentence. On December 22, 1965, some 20 months after his probation had been revoked and he had been sentenced to the state penitentiary the defendant filed with the trial court a motion under Colo. R. Crim. P. 35 (b). In that motion, as I read it, the defendant’s position is that the trial court on April 6, 1964 had no jurisdiction to sentence him for the reason that his probationary period had ended on January 29, 1964 and that the extension order of January 23, 1964 was a nullity because he was not present at the hearing nor had he received any notice that a hearing was to be held on that particular date. •
*318The aforementioned motion came on for hearing on January 24, 1966, at which time the motion was denied by the trial court. No testimony was taken at this particular hearing, though the trial court did listen to argument of counsel. The defendant was again represented by counsel of his own choosing. By the present writ of error the defendant now seeks review of the order and judgment of the trial court denying his motion to vacate sentence.
Upon oral argument before this court it developed that the defendant has served his sentence in the state penitentiary and now has been released from that institution. Whether he is presently on parole is not known by us. Rule 35 (b) by its very terms is available to “a prisoner in custody under sentence.” It is quite true that at the time he filed his motion and at the time the same was denied by the trial court the defendant was a prisoner in custody. However, the defendant is no longer in custody, and I raise the question as to whether the trial court could at this time grant any 35 (b) relief to the defendant. The passage of time may well have rendered the entire matter moot.
Be that as it may, I shall now proceed to meet those issues presented by defendant in his written brief and those advanced by him, through counsel, upon oral argument. The defendant’s main argument is that the extension order was a nullity because it was entered ex parte and without prior notice to him. Even if the extension order were a nullity, which in my view is not the case, defendant’s probationary period continued until it was terminated by order of court upon application of the defendant. No such application to terminate probation was ever filed by the defendant. Nor was there any order of court terminating the probationary period. Hence, in my view of the matter the defendant was still on probation as of April 6, 1964, the date when his probation was revoked, even had there been no extension order.
*319But as I have said, this extension order was in my view not a nullity. C.R.S. 1963, 39-16-6 provides that the probationary period of time may be extended, so long as the period of probation, together with any extension thereof, shall not exceed five years, and there is nothing in this statute which requires that a hearing to extend probation be on notice to the probationer, or that he be present at such hearing.
Nor do I find any constitutional provision which requires that a hearing wherein the probation period is to be extended must be on notice, or that the probationer must be present at the hearing. The following cases would certainly indicate that the due process clause does not require such formality where a probationary term is merely to be extended. Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L.Ed. 1568; United States v. Squillante, 137 F.Supp. 553; United States v. Edminston, 69 F.Supp. 382; and In Re Davis, 37 Cal.2d 872, 236 P.2d 579.
And as I read the majority opinion, there is nothing contained therein which in any manner supports the defendant’s basic position in this court, namely, that the extension order of January 23, 1964 was a nullity because it was held ex parte and without prior notice to the defendant and that accordingly his probation automatically ended on January 29, 1964. On the contrary, the majority frankly state that the argument thus advanced by the defendant is not the law. The majority then proceed to turn this controversy on the premise that after the entry of the extension order, the defendant was never notified that his probationary period had been thus extended for another year. The defendant himself did not in anywise stress this particular point either in the trial court or here. But as indicated above, I do not feel that the absence of such notice, if in fact there was such an absence, is of any import when the defendant knew by the very terms of his probation that an order terminating probation would be made upon *320application of the probationer, only when approved by the Chief Probation Officer as well as the Court.
For all of these reasons, I see no need to remand this matter to the trial court for an evidentiary hearing as to whether the defendant was notified that his probationary period had been extended, as he already knew, if he read the order granting his probation, that his probation could only be terminated upon his application approved by the chief probation officer and thereafter “granted by court order.” I would affirm.
I am authorized to state that Mr. Chief Justice Moore joins in this dissent.