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STATE v. MATISCHECK

Oregon Court of Appeals.

May 5, 1975

Judgment

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FORMER OPINION MODIFIED. AFFIRMED.

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 P.2d 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 P.2d 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 transaction when a former "prosecution" consisted only of a guilty plea. Factually, that is the situation in this case.

Former opinion modified. Affirmed.

FORT, J., concurring.

I concur in the court's construction of the rule just announced in State v. Hammang, 271 Or. 749, 534 P.2d 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.