State v. Burke

Court of Appeals of Oregon

State v. Burke

178 P.3d 311, 218 Or. App. 113, 2008 Ore. App. LEXIS 159

CourtCourt of Appeals of Oregon

DecidedFebruary 13, 2008

DocketCR040545; A129508

StatusPublished

This text of 178 P.3d 311 (State v. Burke) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Burke, 178 P.3d 311, 218 Or. App. 113, 2008 Ore. App. LEXIS 159 (Or. Ct. App. 2008).

Pincite

Opinion

PER CURIAM

After a trial to the court on stipulated facts, defendant was convicted of possession of a controlled substance, former ORS 475.992. On appeal, she argues that her conviction must be reversed because the record does not contain a written jury waiver. The state concedes that the conviction must be reversed for that reason, and we agree and accept that concession. State v. Barber, 343 Or 525, 173 P3d 827 (2007). Accordingly, we reverse defendant’s conviction and remand for the trial court to determine whether defendant wishes to waive her right to a jury trial and stipulate to the facts.

Defendant also argues that the trial court committed error apparent on the face of the record, ORAP 5.45, by ruling on her motion to suppress evidence in her absence. The state responds that the error does not appear on the face of the record because there are competing factual inferences as to whether defendant waived her right to be present at the hearing on the motion. On remand, the trial court may consider, in the first instance, whether defendant waived her right to be present at the suppression hearing or whether to reopen the record for that hearing.

Reversed and remanded.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM

After a trial to the court on stipulated facts, defendant was convicted of possession of a controlled substance, former ORS 475.992. On appeal, she argues that her conviction must be reversed because the record does not contain a written jury waiver. The state concedes that the conviction must be reversed for that reason, and we agree and accept that concession. State v. Barber, 343 Or 525, 173 P3d 827 (2007). Accordingly, we reverse defendant’s conviction and remand for the trial court to determine whether defendant wishes to waive her right to a jury trial and stipulate to the facts.

Defendant also argues that the trial court committed error apparent on the face of the record, ORAP 5.45, by ruling on her motion to suppress evidence in her absence. The state responds that the error does not appear on the face of the record because there are competing factual inferences as to whether defendant waived her right to be present at the hearing on the motion. On remand, the trial court may consider, in the first instance, whether defendant waived her right to be present at the suppression hearing or whether to reopen the record for that hearing.

Reversed and remanded.

Cite This Page — Counsel Stack

Bluebook (online)

178 P.3d 311, 218 Or. App. 113, 2008 Ore. App. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burke-orctapp-2008.

Opinion

Related

Cite This Page — Counsel Stack