787 P.2d 455

#### Mike C. MOLINAR, Petitioner, v. STATE of New Mexico, Respondent.

No. 18989.

Supreme Court of New Mexico.

Feb. 27, 1990.

Rehearing Denied March 20, 1990.

Jacquelyn Robins, Chief Public Defender, Peter Rames, Asst. Appellate Defender, Santa Fe, for petitioner.

Hal Stratton, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for respondent.

OPINION

PER CURIAM.

Petitioner, Mike C. Molinar, has petitioned us for a writ of certiorari, seeking reversal of his conviction in State v. Molinar, Ct.App. No. 10, 982, November 11, 1989, Apodaca, J., dissenting. We granted his petition, and have issued the writ. Upon review of the case, we find that Molinar was a co-defendant with Terry Callaway in the latter's trial. See State v. Callaway, Ct.App. No. 10,966, November 7, 1989, Apodaca, J., dissenting, reversed, Callaway v. State, 109 N.M. 416, 785 P.2d 1035 (1990), Baca, J., dissenting. As in Callaway, petitioner objected to the trial court’s sua sponte order of mistrial. We thus conclude that petitioner's second trial was constitutionally invalid, for the same reasons we gave in Callaway.

Accordingly, we reverse the court of appeals in No. 10,982, and remand the case to the district court with instructions to discharge petitioner from custody.

IT IS SO ORDERED.

BACA, J., dissents.