Summary
granting "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"
Summary of this case from State v. DixonOpinion
87-NB-1155; CA A47416
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.
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.