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 P2d 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.