State v. Webster , 239 Or. App. 598 ( 2010 )

245 P.3d 172 (2010) 239 Or. App. 598

STATE of Oregon, Plaintiff-Respondent,
v.
Brent Evan WEBSTER, Defendant-Appellant.

CR0811685; A140440.

Court of Appeals of Oregon.

Submitted November 5, 2010. Decided December 15, 2010.

Peter Gartlan, Chief Defender, and Irene B. Taylor, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.

PER CURIAM.

Following a trial to the court on stipulated facts, defendant was convicted of driving while suspended. ORS 811.182. He appeals and asserts, among other things, that the trial court erred when it held a bench trial in the absence of a written waiver of his right to a jury trial. Although defendant did not preserve the asserted error before the trial court, he contends that we should review it as plain error. Because the record contains no written waiver or any other indication that defendant executed such a waiver, the state concedes that the trial court committed plain error. See Or. Const., Art. I, § 11; State v. Barber, 343 Or. 525, 173 P.3d 827 (2007) (reversing as plain error a conviction based on a stipulated facts trial conducted by the court without a written waiver of the defendant's right to jury trial). We agree and, for the reasons set forth in Barber, exercise our discretion to correct the error. Accordingly, defendant's conviction must be reversed and the case remanded for a new trial.

Reversed and remanded.