
    Submitted on remand from the Oregon Supreme Court April 24, former opinion modified,
    affirmed May 5, 1975
    STATE OF OREGON, Respondent, v. GORDON ROY MATISCHECK, Appellant.
    
    (No. 16-842)
    535 P2d 102
    Before Schwab, Chief Judge, and Langtry and Fort, Judges.
   PER CURIAM.

This case is again before us on remand from the Supreme Court for reconsideration in light of State v. Hammang, 271 Or 749, 534 P2d 501 (1975).

We adhere to our prior analysis of the prosecutorial-knowledge element of the double-jeopardy test of State v. Brown, 262 Or 442, 497 P2d 1191 (1972). However, the Supreme Court’s Hammang decision establishes that the Brown rule does not bar subsequent trial on a charge arising from a single act or trans: action when a former “prosecution” consisted only of a guilty plea. Factually, that is the situation in this case.

Former opinion modified. Affirmed.

FOET, J.,

concurring.

I concur in the court’s construction of the rule just announced in State v. Hammang, 271 Or 749, 534 P2d 501 (1975), as applied to this case, and thus concur in the result now announced affirming the ruling of the trial court.

I adhere, however, to the view expressed in my prior dissenting opinion in this case.  