State v. Huntley
827 P.2d 918
Or. Ct. App.
1992
Check Treatment
*24 RICHARDSON, P. J.

Defendant appeals his conviction for driving while suspended, ORS 811.175, contending that it should be reversed because the trial court record does not contain a written waiver of jury trial.

Immediately before trial began, the court said:
“Be seated. Okay. This is State versus Huntley.
“I understand you are waiving jury. Do you have a written waiver?
“[DEFENSE COUNSEL]: Unfortunately not, Your Honor. I can have one to you over the noon lunch break. I can get one from Mr. Powers’ office. My — that’s my error.
“THE COURT: Okay.”

There is no written jury trial waiver in the record.

The state argues that defendant should not be allowed to complain, because his counsel asserted on his behalf that a waiver would be executed and defendant made no objection to continuing with the trial without a waiver. Although we sympathize with the state’s position, we cannot agree.

Article I, section 11, of the Oregon Constitution and ORS 136.001 require a written waiver of a defendant’s right to jury trial. We have held that an oral waiver is not sufficient, see State v. Cordray, 91 Or App 436, 438, 755 P2d 735 (1988), and that the lack of an objection to proceeding without a written waiver is not fatal on appeal. See 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). There is nothing in the record that assures us that defendant understood what rights he was waiving or that he waived them voluntarily. We cannot say, as we did in State v. Naughten, 5 Or App 6, 480 P2d 448, rev den (1971), that the error was harmless.

Reversed and remanded for a new trial.