FILED: February 1, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

GLEN LEROY MUSSLER,

Appellant.

03C52155; A125227

Appeal from Circuit Court, Marion County.

Albin W. Norblad, Judge.

Submitted on record and briefs December 29, 2005.

Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, and Susan Fair Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, and Janet A. Klapstein, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Landau and Wollheim,* Judges.

PER CURIAM

Reversed and remanded for new trial.

*Wollheim, J., vice Richardson, S. J.

PER CURIAM

Defendant appeals a judgment of conviction for manufacture of a controlled substance, ORS 475.992. He argues that his conviction must be reversed because the record fails to establish that he waived in writing his right to jury trial. He further argues that the trial court erred in imposing an upward departure sentence. The state concedes that the record does not include a written jury waiver and that the conviction must therefore be reversed. We accept the state's concession and agree that, because of the absence of a written jury waiver, defendant's conviction must be reversed and the matter must be remanded for a new trial. State v. Stephens, 184 Or App 556, 56 P3d 950 (2002), rev den, 335 Or 195 (2003). Because we reverse the conviction, we do not address defendant's arguments regarding his sentence.

Reversed and remanded for new trial.


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