State v. Kendall

773 P.2d 1362 (1989)

96 Or.App. 735

STATE of Oregon, Respondent, v. Tamlane KENDALL, Appellant.

C87-02-30946; CA A48220.

Court of Appeals of Oregon.

Argued and Submitted January 30, 1989.

Decided May 24, 1989.

*1363 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.

PER CURIAM.

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.