The opinion
*724 SCHWAB, C. J.,
dissenting.
The Bishop-Boyd procedure requires a ’’timely” pretrial motion to consolidate separate charges for trial. State v. Boyd, 271 Or 558, 568 , 553 P2d 795 (1975); State v. Bishop, 16 Or App 310, 314 , 518 P2d 177 (1974). The majority holds that such a motion "is timely if filed at anytime prior to trial.” 28 Or App at 723. I disagree.
The purpose of the Bishop-Boyd procedure is to require a defendant facing multiple charges to elect between one or several trials. The defendant’s choice of one mutually exclusive alternative constitutes a waiver of any posible right to the other alternative. A waiver of a right "must amount to an intentional relinquishment or abandonment of a known right or privilege.” Church v. Gladden, 244 Or 308, 312-13 , 417 P2d 993 (1966). It is not likely that a defendant confronted for the first time with a motion to consolidate filed on the eve of trial can make an informed and knowledgeable response that constitutes a waiver in this sense.
In State ex rel Dooley v. Connall, 257 Or 94, 102 , 475 P2d 582 (1970), the Supreme Court held that exculpatory evidence "must be disclosed by the prosecution at such time as will allow the defendant to use it effectively in his own defense.” Adapting that approach to the present situation, I would hold that a Bishop-Boyd motion to consolidate, to be timely, must be filed at such time as will allow the defendant to make an informed and calculated response. Applying that rule to the present facts, I find myself in agreement with the circuit court’s conclusion that a motion to consolidate filed on the eve of trial is not timely. I would affirm.