State v. Dykstra

Under ORS 131.525 (1)(b)(B), manifest necessity includes “a legal defect in the proceeding that would make any judgment entered…reversible as a matter of law.” Without a written jury waiver, a trial court “errs in going to trial at all” and any decision made by the court must be reversed on appeal. State v. Barber, 343 Or 525, 530, 173 P3d 827 (2007).

Defendant appealed a judgment of guilty except for insanity (GEI) on various charges.  In a previous stipulated-facts trial, the court declared a mistrial because Defendant had not submitted a jury trial waiver.  The State refiled the charges.  At the second trial, Defendant filed a motion to dismiss the second indictment on double jeopardy grounds.  On appeal, Defendant assigned error to the trial court’s denial of his motion to dismiss and argued that the mistrial resulted in jeopardy since the trial court reached a verdict.  In response, the State argued that jeopardy was properly terminated due to manifest necessity, under ORS 131.525.  Under ORS 131.525 (1)(b)(B), manifest necessity includes “a legal defect in the proceeding that would make any judgment entered…reversible as a matter of law.”  Without a written jury waiver, a trial court “errs in going to trial at all” and any decision made by the court must be reversed on appeal.  State v. Barber, 343 Or 525, 530, 173 P3d 827 (2007).  The Court found that the failure to obtain a signed jury trial waiver in the first trial would have resulted in reversal on appeal, which established manifest necessity for a mistrial. Thus, the Court held that “double jeopardy did not bar Defendant’s prosecution” in the second trial.  Affirmed.