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764 P.2d 233

94 Or.App. 3

State v. Howley

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

Court of Appeals of Oregon

87-NB-1155; CA A47416.

Petition for Reconsideration September 21, 1988.

Decided November 16, 1988.

Court of Appeals of Oregon · decided 1988-11-16

Applies OR 131 § 131.515

Relies on Sams v. State · State v. Howley · State v. Howley

Decided 1988-11-16

¶1*234 Gary D. Babcock, Public Defender, and Steven V. Humber, Salem, for appellant.

¶2Before RICHARDSON, P.J., and DEITS and RIGGS, JJ.

¶3On Appellant's Petition for Reconsideration September 21, 1988.

¶4PER CURIAM.

¶5Defendant'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.

¶6Motion for reconsideration allowed; former opinion modified; remanded with instructions to dismiss complaint.

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