The appellant in this probate case was charged with theft by deception and acquitted by reason of mental disease or defect. She was consequently admitted to the State Hospital. Pursuant to Ark. Code Ann. § 5-2-314 (Repl. 1997), the State Hospital filed a report with the court recommending that appellant be released without conditions. The court disagreed with this recommendation and ordered that appellant be released with conditions. This appeal followed.
For reversal, appellant argues that she proved by a preponderance of the evidence that she should be released outright. She contends that “[absolutely no evidence was introduced that suggests that [she] could not be outright released.” We agree, and therefore, reverse and remand for entry of an order of unconditional release.
We review probate proceedings de novo, and the decision of the court will not be disturbed unless clearly erroneous. See Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002). In making our review, we give due regard to the superior position and opportunity of the circuit court, sitting in probate, to determine the credibility of the witness. Manning v. State, 76 Ark. App. 91, 61 S.W.3d 910 (2001).
Arkansas Code Annotated section 5-2-314(e) (Repl. 1997) provides:
(e) A person found not guilty, on the ground of mental disease or defect, of an offense involving bodily injury to another person, or serious damage to the property of another, or involving a substantial risk of such injury or damage, has the burden of proving by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect. With respect to any other offense, the person has the burden of proof by a preponderance of the evidence.
The judgment of acquittal in this case provided that the offense at issue did not create a substantial risk of bodily injury to another person or serious damage to the property of another. Thus, appellant had the burden of proving by a preponderance of the evidence that her release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect. Arkansas Code Annotated section 5-2-315 (a)(2)(C) (Repl. 1997) provides further that:
(C) If, after the hearing, the court finds by the standard specified in § 5-2-314(e) that the person has recovered from his mental disease or defect to such an extent that:
(i) His release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall order that he be immediately discharged; or
(ii) His conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, then the court shall order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the director of the facility in which he is committed, and that has been found by the court to be appropriate, and as explicit conditions of release. . . .
(Emphasis added.)
Following the testimony of Forensic Medical Director, Dr. O. Wendell Hall, that in his opinion, appellant, who suffers from bipolar disorder, could be released outright, the following colloquy took place:
Court: Well, here’s the story. I would be willing to grant the conditional release but you do not have any conditions attached here. And I’m not going to release her outright. She has a diagnosed mental illness. She committed a crime. She is homeless except apparently they have made arrangements for her to live at St. Francis House. She needs to be continuing to see the physicians at the Veterans Administration Hospital as well as the Mental Hygiene Clinic. So you may be conditionally released, but you don’t have the conditions done.
Defense Counsel: Your Honor, for the record, I’m asking that it be dismissed because that’s —
Court: I think I said already — if I didn’t — I already said that I’m not —■ I’m going to deny the outright release. It’s not going to happen . . .
We conclude that the decision of the trial court was clearly erroneous, as the record before us does not provide a basis for a conditional release. The Garland County Circuit Court, having acquitted appellant of the theft-by-deception charge for hot checks because of mental disease or defect and having before it the amount of the checks and the circumstances of the conduct, found that the crime did not create a substantial risk of bodily injury to another person or serious damage to the property of another. The judgment of the Garland County Circuit Court was before the Pulaski County Circuit Court, and there is nothing in this record that justifies setting aside that finding. Additionally, Arkansas Code Annotated section 5-2-315 (a)(2)(C) (Repl. 1997) provides that a person whose release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another should be immediately discharged. Given the fact that the Garland County Circuit Court found that appellant’s crime did not create a substantial risk of bodily injury to another person or serious damage to the property of another, it is inconceivable that the Pulaski County Circuit Court could then find that appellant could not be unconditionally released when the crime from which she was acquitted did not involve a substantial risk of bodily injury to another person or serious damage to the property of another. Furthermore, there was no evidence before the trial court that appellant would present such a danger in the future. Therefore, we reverse and remand for entry of an order for appellant’s unconditional release.
Robbins, Vaught, and Roaf, JJ., agree. Pittman and Bird, JJ., concur in part, dissent in part.