State v. Lopez-Loaiza

NEWMAN, J.,

dissenting.

The state failed to obtain a written waiver of defendant’s right to trial by jury. As the state concedes, that was error. Both the Oregon Constitution and ORS 136.001 require that a defendant, to make a waiver of the right to trial by jury, must give an express written waiver.

The majority says that the error is not reversible, because defendant did not accept the court’s offer of a new trial. He was under no obligation to do that. The state’s brief says:

“The state agrees that a defendant’s failure to execute a written jury waiver mandates reversal. State v. Kendall, 96 Or App 735, 773 P2d 1362, rev den 308 Or 382 (1989); State v. McDaniel, 96 Or App 337, 772 P2d 951, rev den 308 Or 382 (1989).”

That is correct.

I dissent.