Carol Greenberg, Asst. Public Defender, Fairbanks, Dana Fabe, Public Defender, Anchorage, for petitioner.

Robert D. Bacon, Asst. Atty. Gen., Anchorage, Harold M. Brown, Atty. Gen., Juneau, for respondent.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

PER CURIAM.

Two issues are presented in this petition. They are: (1) whether a trial court may give over a defendant's objection an instruction that jurors must unanimously find the defendant not guilty of a greater offense before they may render a verdict on whether he is guilty of any lesser included offense, and (2) whether double jeopardy bars reprosecution for a charged offense where the jury indicates that it is unable to reach a verdict as to that offense and the court declares a mistrial over defense objection rather than permitting the jury to deliberate as to a lesser included offense.

As to the second issue, we dismiss the petition for hearing as improvidently granted. As to the first issue, we affirm the court of appeals for the reasons stated by the court of appeals in Dresnek v. State, 697 P.2d 1059 (Alaska App. 1985) and in Staael v. State, 697 P.2d 1050 (Alaska App. 1985).

RABINOWITZ, Chief Justice, with whom BURKE, Justice, joins, concurring.

I concur in the result and in the decision to dismiss the petition, in part, as improvidently granted. See Dresnek v. State, 718 P.2d 156 n. 2 (Alaska, 1986) (Rabinowitz, C.J., joined by Burke, J., dissenting).