
    Winters v. Alvis, Warden, et al.
    (No. 5895
    Decided April 15, 1958.)
    
      Mr. Harry F. Winters, in propria persona.
    
    
      Mr. William Saxbe, attorney general, and Mr. William M. Vance, for respondents.
   Petree, P. J.

This is an action in habeas corpus wherein the petitioner claims he is being held in illegal custody by respondents as a result of a conviction, on February 14, 1957, in the Court of Common Pleas of Champaign County, of being an habitual criminal, thereafter being sentenced to a term for life.

The journal entry of the court recites as follows, beginning with the second sentence:

“Defendant having appeared in court with counsel and having waived a jury, the trial was had to the court.”

The petitioner appeared in court and testified that he did not waive a jury or sign a waiver. Petitioner’s March 24, 1958, rebuttal memorandum has been considered.

Section 2945.05, Revised Code, not only requires that the waiver shall be in writing but substantially sets out the form in which it shall be written.

The petitioner exhibited to the court a letter from O. R. Outram, clerk of the Common Pleas Court of Champaign County, in answer to a request made by the petitioner for a certified copy of the written waiver if any could be found in the records of said court. Clerk Outram, in answer to his inquiry for a certified copy, replied, “No waiver of jury.” The petitioner had forwarded a sum of money for the fee for certification of the copy of the waiver.

Decision of this case was postponed until the assistant attorney general, William M. Vance, could have an opportunity to check the appearance docket to see whether a written waiver had been filed and listed thereon. His inquiry showed that “the appearance docket shows no filing of such waiver.” Furthermore, he stated that “the records show no formal waiver of jury trial signed by defendant as required by Section 2945.05, Revised Code.” Vance explained further that the trial judge recalled no written waiver but stated that a jury was waived in open court, and the case was heard without objection.

We feel that the statute is mandatory and, in view of the above state of the record, that the trial was a nullity. See State v. Fife, Jr., 100 Ohio App., 550, 137 N. E. (2d), 429, wherein the Court of Appeals for Wayne County arrived at the same conclusion as we have.

The petitioner is remanded to the Common Pleas Court of Champaign County for further proceedings according to law. The petitioner was informed in court that should he be successful in obtaining his relief in this case, he would lose the time which he has served in the penitentiary towards any new sentence which the court might give in the event he is again convicted. Petitioner said he understood that matter and still wished to urge his case.

The entry in this case will be held a reasonable time to permit notice to the Common Pleas Court of Champaign County to give the court an opportunity to arrange for the return of the petitioner to Champaign County for trial.

Judgment accordingly.

Bryant and Miller, JJ., concur.  