State v. Kendall
| Decision Date | 24 May 1989 |
| Citation | 96 Or.App. 735,773 P.2d 1362 |
| Parties | STATE of Oregon, Respondent, v. Tamlane KENDALL, Appellant. C87-02-30946; CA A48220. |
| Court | Oregon Court of Appeals |
J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.
In a trial to the court, defendant was convicted of delivery of a controlled substance and possession of a controlled substance. ORS 475.992. He contends that the court erred in denying his pretrial motion to suppress evidence. We hold that the court did not err in denying that motion. However, we reverse because of the lack of a written waiver of trial by jury.
Consent to be tried without a jury requires an express written waiver. Or.Const., Art. I, § 11; ORS 136.001. Although the state concedes that there is no written waiver in the record, it argues that, because defendant did not object or otherwise raise the issue in the trial court, he has not preserved the error for review. However, the error is apparent on the face of the record and we will consider it. ORAP 7.19(5). See State v. McDaniel, 96 Or.App. 337, 772 P.2d 951 (1989).
Judgment reversed and remanded for a new trial.
To continue reading
Request your trial
-
State v. Crain
...him to the court on an aggravating offense, in the absence of a written waiver of trial by jury on that offense. See State v. Kendall, 96 Or.App. 735, 773 P.2d 1362, rev den 308 Or. 382, 780 P.2d 735 (1989) (failure to obtain the defendant's written waiver of trial by jury as required by Ar......
-
State v. Thomas
...of trial by jury in a criminal prosecution is error apparent on the face of the record and warrants a new trial under State v. Kendall, 96 Or.App. 735, 773 P.2d 1362, rev. den., 308 Or. 382, 780 P.2d 735 ...
-
State v. Barber
...obtain a written waiver of his right to a jury trial, the court's error is apparent on the face of the record. See also State v. Kendall, 96 Or.App. 735, 773 P.2d 1362, rev. den., 308 Or. 382, 780 P.2d 735 Even though an error is apparent on the face of the record, it is within our discreti......
-
State v. Smay
...state concedes, and we agree, that this case must be remanded for a new trial because there was no written jury waiver. State v. Kendall, 96 Or.App. 735, 773 P.2d 1362, rev. den. 308 Or. 382, 780 P.2d 735 (1989). We address the denial of defendant's motion to suppress the handgun seized fro......