STATE v. HOWLEY, 94 Or. App. 3 (1988)

764 P.2d 233

STATE OF OREGON, Respondent, v. BRUCE MARVIN HOWLEY, Appellant.

87-NB-1155; CA A47416Oregon Court of Appeals.
On appellant’s petition for reconsideration filed September 21, reconsideration allowed, former opinion (92 Or. App. 575, 758 P.2d 893) modified and remanded with instructions to dismiss complaint November 16, 1988

Appeal from the District Court, Coos County, Robert E. Jones, Judge.

Gary D. Babcock, Public Defender, and Steven V. Humber, Salem, for petition.

Before Richardson, Presiding Judge, Deits and Riggs, Judges.

PER CURIAM

Motion for reconsideration allowed; former opinion modified; remanded with instructions to dismiss complaint.

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PER CURIAM

Defendant’s conviction for harassment was reversed by this court for lack of evidence to support the jury’s verdict, and the cause remanded for a new trial. State v. Howley, 92 Or. App. 575, 758 P.2d 893 (1988). On motion for reconsideration, defendant argues that a retrial in this case is prohibited by the former jeopardy provisions of ORS 131.515; Article I, section 12, of the Oregon Constitution; and the Fifth Amendment. The granting of a new trial after a judgment of acquittal for lack of evidence violates the principles of former jeopardy, whether the judgment of acquittal is rendered pursuant to a jury verdict or by the order of an appellate court. Or Const, Art I, § 12.

Motion for reconsideration allowed; former opinion modified; remanded with instructions to dismiss complaint.

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