Opinion
88C 21678; CA A51197
Submitted on record and briefs November 16, 1989
Reversed and remanded for new trial December 6, 1989
Appeal from Circuit Court, Marion County.
Robert B. McConville, Judge.
Jay R. Jackson, Salem, filed the brief for appellant.
Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Robert M. Atkinson, Assistant Attorney General, Salem, filed the brief for respondent.
Before Joseph, Chief Judge, and Newman and Deits, Judges.
PER CURIAM
Reversed and remanded for new trial.
Defendant appeals his conviction on stipulated facts for assault in the second degree. He was tried to the court without a jury. There is nothing in the record to show that a written waiver of the right to jury trial was executed by appellant. Or Const, Art I, § 11; State v. Milstead, 57 Or. App. 658, 646 P.2d 63, rev den 293 Or. 483 (1982). The state concedes that the court improperly allowed a trial without a jury.
Reversed and remanded for a new trial.