Willamette Law Online

Oregon Court of Appeals


State v. Gilbert

Summarized by: 

Date Filed: 02-13-2013
Case #: A147533
Haselton, C.J. for the Court; Ortega, P.J.; and Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A147533.pdf

Criminal Procedure: For a jury trial to be properly waived, the defendant must act knowingly and voluntarily and mere reference to such a waiver in the record is not sufficient.

Defendant appealed a conviction, following a bench trial, for resisting arrest and giving false information to a peace officer for service of an arrest warrant. Defendant contended that, despite not raising the asserted error before the trial court, there was no voluntary written waiver of a trial by jury. The State claimed that despite a lack of a written waiver, if the written record contained some reference to a waiver, then the ruling was not a reversible error. Thus, the lower court’s pretrial order and Defendant’s failure to object was a sufficient reference. The Court of Appeals held that, regardless of the trial court record's reference to a waiver of a jury trial, without the voluntary and knowing act of the Defendant, no basis for a waiver exists. The trial court committed plain error. Reversed and remanded.