State v. Howley , 764 P.2d 233 ( 1988 )

764 P.2d 233 (1988) 94 Or.App. 3

STATE of Oregon, Respondent,
v.
Bruce Marvin HOWLEY, Appellant.

87-NB-1155; CA A47416.

Court of Appeals of Oregon.

Petition for Reconsideration September 21, 1988. Decided November 16, 1988.

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

Before RICHARDSON, P.J., and DEITS and RIGGS, JJ.

On Appellant's Petition for Reconsideration September 21, 1988.

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.