State v. Huntley , 1992 Ore. App. LEXIS 501 ( 1992 )

827 P.2d 918 (1992) 112 Or.App. 22

STATE of Oregon, Respondent,
v.
Thomas George HUNTLEY, Appellant.

90-CR-0071-15; CA A65668.

Court of Appeals of Oregon.

Argued and Submitted July 24, 1991. Decided March 11, 1992.

Irene B. Taylor, Salem, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., and WARREN and DEITS, JJ.

RICHARDSON, Presiding Judge.

Defendant appeals his conviction for driving while suspended, ORS 811.175, contending that it should be reversed because the trial court record does not contain a written waiver of jury trial.

Immediately before trial began, the court said:

"Be seated. Okay. This is State versus Huntley.

"I understand you are waiving jury. Do you have a written waiver?

"[DEFENSE COUNSEL]: Unfortunately not, Your Honor. I can have one to you over the noon lunch break. I can get one from Mr. Powers' office. My — that's my error.

"THE COURT: Okay."

There is no written jury trial waiver in the record.

The state argues that defendant should not be allowed to complain, because his counsel asserted on his behalf that a waiver would be executed and defendant made no objection to continuing with the trial without a waiver. Although we sympathize with the state's position, we cannot agree.

Article I, section 11, of the Oregon Constitution and ORS 136.001 require a written waiver of a defendant's right to jury trial. We have held that an oral waiver is not sufficient, see State v. Cordray, 91 Or. App. 436, 438, 755 P.2d 735 (1988), and that the lack of an objection to proceeding without a written waiver is not fatal on appeal. See State v. Kendall, 96 Or. App. 735, 773 P.2d 1362, rev. den. 308 Or. 382, 780 P.2d 735 (1989); State v. McDaniel, 96 Or. App. 337, 772 P.2d 951, rev. den. 308 Or. 382, 780 P.2d 735 (1989). There is nothing in the record that assures us that defendant understood what rights he was waiving or that he waived them voluntarily. We cannot say, as we did in State v. Naughten, 5 Or. App. 6, 480 P.2d 448, rev. den. (1971), that the error was harmless.

Reversed and remanded for a new trial.