
    On appellant’s petition for reconsideration filed September 21,
    reconsideration allowed, former opinion (92 Or App 575, 758 P2d 893) modified and remanded with instructions to dismiss complaint November 16,1988
    STATE OF OREGON, Respondent, v. BRUCE MARVIN HOWLEY, Appellant.
    
    (87-NB-1155; CA A47416)
    764 P2d 233
    Gary D. Babcock, Public Defender, and Steven V. Humber, Salem, for petition.
    Before Richardson, Presiding Judge, Deits and Riggs, Judges.
    PER CURIAM
   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 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.  