573 P.2d 1204

#### Charles BROWN, Petitioner, v. STATE of New Mexico, Respondent.

No. 11716.

Supreme Court of New Mexico.

Jan. 17, 1978.

*350William D. Teel, John Walker, Asst. Public Defenders, Albuquerque, for petitioner.

Toney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for respondent.

ORDER

FEDERICI, Justice.

The writ of certiorari heretofore granted is quashed as improvidently issued.

The case of State v. Castrillo, 90 N.M. 608, 566 P.2d 1146 (1977), upon which petitioner relies, is not applicable to the present case. The first trial in the present case was concluded on November 18, 1976. The CastriUo opinion was not filed until July 8, 1977. The CastriUo case made it clear that it should not be applied retroactively: “The holding in Brooks [State v. Brooks, 59 N.M. 130, 279 P.2d 1048 (1955)] will no longer be applicable in New Mexico. Henceforth, . . . ” (Emphasis added.)

Even if the CastriUo case were deemed by us to apply, the trial judge in the first trial determined that the jury had not reached a unanimous decision on any of the offenses charged and, therefore, petitioner was not placed in jeopardy.

IT IS SO ORDERED.

McMANUS, C. J., and SOSA, EASLEY and PAYNE, JJ., concur.