Summary
In State v. May, 131 Or App 570, 571, 888 P.2d 14 (1994), for example, we held that the lack of an objection to the trial court's failure to provide the advice of rights mandated by ORS 426.100(1) did not waive the appellant's statutory right to receive that advice, where the record did not demonstrate a waiver on the record and, further, that the omission required reversal.
Summary of this case from State v. T. C. (In re T.C.)Opinion
9403-95759; CA A83731
Submitted on record and briefs November 7, 1994
Reversed and remanded December 7, 1994
Appeal from Circuit Court, Multnomah County.
Phillip J. Roth, Judge.
Paul L. Breed submitted the brief for appellant.
Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Kristin N. Preston, Assistant Attorney General, filed the brief for respondent.
Before Rossman, Presiding Judge, and De Muniz and Leeson, Judges.
PER CURIAM
Reversed and remanded.
Appellant, an alleged mentally ill person, appeals from a judgment of involuntary civil commitment. Because we conclude that the trial court erred in failing to advise appellant of her hearing rights, we reverse.
The state concedes that the trial court failed to explain to appellant her rights under ORS 426.100(1), as required by State v. Allison, 129 Or. App. 47, 877 P.2d 660 (1994). The state contends, however, that any error was waived by counsel, who made no objection at the hearing.
ORS 426.100(1) provides:
"At the time the alleged mentally ill person is brought before the court, the court shall advise the person of the following:
"(a) The reason for being brought before the court;
"(b) The nature of the proceedings;
"(c) The possible results of the proceedings;
"(d) The right to subpoena witnesses; and
"(e) The person's rights regarding representation by or appointment of counsel."
We hold that a lawyer's failure to object, standing alone, does not constitute a waiver of the right to be advised of the rights pertaining to the conduct of a civil mental commitment hearing. Those are mandatory advisements specifically designed to ensure that the alleged mentally ill person receives the benefits of a full and fair hearing. The court must either advise the alleged mentally ill person directly regarding those rights or conduct an examination on the record to determine whether a valid waiver of the right to be advised has been knowingly and voluntarily made. Here, the court neither advised appellant nor conducted any such examination.
Reversed and remanded.