People v. Braxton , 91 Mich. App. 689 ( 1979 )

Bashara, J.

The majority of this panel adopts the factual determination set forth by Judge Burns. However, we reach a different conclusion and would affirm the conviction.

MCL 763.3; MSA 28.856 provides that the "waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel”.

A review of the record reveals that defendant was accompanied by counsel when he signed the proper waiver form in open court before a clerk of the court.

Immediately prior to trial, the judge indicated on the record that the defendant had executed the waiver. At the time of that pronouncement, defendant and his attorney were in the courtroom.

The cases cited by the dissent can be distinguished. In People v Edwards, 51 Mich App 403; 214 NW2d 909 (1974), and People v Polhamus, 59 Mich App 609; 230 NW2d 171 (1975), lv den 394 Mich 819 (1975), no written waiver was made a part of the record. In People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975), and People v Word, 67 Mich App 663; 242 NW2d 471 (1976), no oral acknowledgment was made in open court.

Rather, we rely on our majority opinion in People v McKaig, 89 Mich App 746; 282 NW2d 209 (1979), People v Little, 87 Mich App 50; 273 NW2d 583 (1978), and People v Slappy, 59 Mich App 525; 230 NW2d 4 (1975).

Affirmed.

N. J. Kaufman, P.J., concurred.