specially concurring in the result.
I concur in the result obtained by the majority, however I must express my disagreement with what I view as gratuitous dicta in the majority which find error in the trial court conclusion that “the burden is on the defendant to demonstrate that society would not be jeopardized by his release.” I suggest that such a holding by the majority is not necessary to the decision in this case, is not a necessary conclusion to be drawn from the statutes, and is not in accord with what the law has been in Idaho, or what the law ought to be in Idaho.
As noted by the majority, after a trial on charges of rape, infamous crime against nature, and kidnapping, to which Chilton pleaded not guilty by reason of mental disease, the jury found him not guilty by reason of mental disease and defect. Thereafter, the court entered judgment of acquittal and found that Chilton was in need of supervision, evaluation, treatment and care, that he presented a substantial risk of physical harm to other persons, that Chilton was dangerous to such a degree that a maximum security facility was required, and committed Chilton to the custody of the Department of Health and Welfare. That commitment was under the provisions of then I.C. § 18-214, which has now been repealed.
As noted in the majority, I.C. § 66-337 provides that the commitment of an involuntary patient should be terminated if he is no longer mentally ill, or is no longer likely to injure others. The statute further provides that patients admitted under I.C. § 18-214, as was Chilton, may not be released from a facility without notification to the committing court and the prosecuting attorney, of a contemplated release. Thereafter, the statute provides that such court, on its own motion or that of an interested party, shall determine whether the release is justified, and that the court in making such determination may order an independent examination of the patient. From that statutory language the majority holds that the burden of proof has shifted from the defendant to the State, albeit no notification of intended release was received by the court from the institution, but rather Chilton initiated the petition himself, and in the ordinary course of events would presumably bear the burden of proving his allegations.
Applications of Downing, 103 Idaho 689, 652 P.2d 193 (1982), was a wide and *830sweeping decision in the area of the commitment of persons who pleaded and were found not guilty of a crime by reason of mental disease or defect. The Court there noted there, that as in the instant case,
In our view, the fact that a defendant asserts the defense of mental disease or defect is of itself sufficient to authorize commitment automatically upon acquittal by reason of mental disease or defect. By pleading an insanity defense, the defendant admits not only mental responsibility, but also the commission of the act upon which prosecution is based.
The majority dismisses the Downing decision out of hand on the basis that the statute under which Downing had been committed, and sought his release, has since been repealed. My reading of Downing is different. I.C. § 18-214 was indeed implicated, but as the Court stated, only to the extent that “we must determine whether the release provisions of I.C. § 18-214 provide the appellants with adequate opportunity to rebut the presumption that their dangerous mental condition continues.” The Court stated:
We therefore hold that an accused who asserts the defense of mental disease or defect, and is acquitted on that basis, may be automatically committed to a mental institution without further hearing; that such automatic commitment does not violate the acquitee’s rights to due process or equal protection because his dangerous mental condition has been established by his own admission; and that the committed acquitee thereafter bears the burden of establishing his right to release by showing pursuant to authorized procedures, that he is no longer dangerously insane.
Thereafter the Court went on to quote from the case of Chase v. Kearns, 278 A.2d 132 (Me. 1971), which held that an acquittal because of mental defect or disease,
... puts such a defendant into an exceptional class. The special interest which the public has acquired in the confinement and release of people in this exceptional class results from the fact that there has been a judicial determination that they have already endangered the public safety and their own as a result of their mental conditions as distinguished from people civilly committed because of only potential danger.
In the instant case the trial judge held, in my view correctly:
However, this commitment arises out of a serious criminal charge, and therefore the standards for release must take into account the interests of society as well as the interests of the defendant. The burden is on the defendant to demonstrate that society will not be jeopardized by his release, and that issue must take precedence over what might be in the best interest of the defendant.
Here, as noted by the majority, the record reflects the variety of reasons why Chilton should not be released. The majority opinion upholds the decision of the district court denying the release of Chilton, but then proceeds to, in my view, unnecessarily overturn the decision in Application of Downing, supra. Therein I believe the majority errs.
BAKES, J., concurs.