Opinion
J84-0971; CA A40881
Argued and submitted May 27, 1987.
Reversed and remanded for new trial June 24, 1987.
Appeal from the Circuit Court, Douglas County, Thomas W. Kolberg, Judge.
Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
PER CURIAM
Reversed and remanded for new trial.
Defendant seeks reversal of his conviction for theft in the first degree, contending that he was tried without a jury and that there is neither a written waiver of his right to a jury trial, ORS 136.001, nor a recorded oral waiver of a jury trial.
The state concedes that there is no written waiver in the trial court file and that there is no record of an oral waiver in the transcription by the court reporter. Accordingly, defendant is entitled to a new trial. State v. Rogers, 83 Or. App. 270, 730 P.2d 43 (1986); State v. Naughten, 5 Or. App. 6, 480 P.2d 448, rev den (1971).
Reversed and remanded for a new trial.