The opinion
SCHWAB, C. J.,
specially concurring.
I concur in the majority opinion except that portion which implies that Robinson v. Neil, 409 US 505 , 93 S Ct 876 , 35 L Ed 2d 29 (1973), raises a serious question as to the retroactivity of State v. Brown, 262 Or 442 , 497 P2d 1191 (1972), which the Oregon Supreme Court held not to be retroactive in its application in State v. Fair, 263 Or 383 , 502 P2d 1150 (1972).
The decision of the Oregon Supreme Court in State v. Brown, supra, was based entirely on Art I, § 12, of the Oregon Constitution. In State v. Fair, supra, the question was whether Brown would be applied retroactively. The Oregon Supreme Court noted that “since we are dealing with a new principle of law which rests entirely on our own Constitution the *221 determination of retroactivity or prospectivity is for us alone,” 95 Adv Sli at 1658, and concluded Brown would not be applied retroactively.
In Waller v. Florida, 397 US 387 , 90 S Ct 1184 , 25 L Ed 2d 435 (1970), the United States Supreme Court, relying on the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, held successive municipal and state prosecutions for the same acts to be unconstitutional. In Robinson v. Neil, supra, the United States Supreme Court held its prior decision in Waller , and presumably other double jeopardy decisions based on the Fifth Amendment, would be applied retroactively.
The two United States Supreme Court decisions based on the United States Constitution, Waller and Robinson , in no way affect the two Oregon Supreme Court decisions based on the Oregon Constitution, Brown and Fair . Accordingly, I would hold that Robinson does not in any way overrule Fair .
Foley, J., joins in this concurring opinion.