State v. Michaels

FILED: July 19, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

GEOFFREY ADRIAN MICHAELS,

Appellant.

0402-30552; A126693

Appeal from Circuit Court, Multnomah County.

Jan G. Wyers, Judge.

Submitted on record and briefs June 2, 2006.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Susan F. Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General, filed the brief for respondent.

Before Landau, Presiding Judge, and Schuman and Ortega, Judges.

PER CURIAM

Reversed and remanded for new trial.

PER CURIAM

Defendant was charged with one count of possession of a controlled substance (schedule II). Former ORS 475.992 (2003), renumbered as ORS 475.840 (2005). He moved to suppress certain evidence seized during a traffic stop, but the trial court denied the motion. He then advised the court that he waived the right to a jury trial, and the case was tried to the court on stipulated facts. The trial court found defendant guilty and imposed sentence. Defendant now appeals, arguing that the trial court erred in trying him without a valid written waiver of his right to a jury trial. The state agrees that the trial court erred. We agree and accept the state's concession. Although a defendant may waive the right to a jury trial, the waiver is ineffective unless it is in writing. State v. McMilian, 191 Or App 62, 69, 80 P3d 538 (2003), rev den, 337 Or 248 (2004). The lack of a written jury waiver is reviewable even in the absence of an objection. State v. Huntley, 112 Or App 22, 24, 827 P2d 918 (1992).

Reversed and remanded for new trial.