¶1 dissenting. Respectfully, I dissent from the majority’s disposition of the defendant-appellant’s second assigned error which denied defendant-appellant’s request to determine the existence of prior convictions in his indictment at the sentencing hearing.
¶2 Pursuant to R.C. 2941.142, a defendant may request that the trial judge determine the existence of the prior offense specifications at the sentencing hearing rather than by a jury at trial.
¶3 The record demonstrates that defense counsel did make such a request prior to trial:
“MR. COTNER: It is the Defense — it is the contention of the Defense that *94 as to the elements of the crime of aggravated robbery and as to the specification relating to the gun, that the Prosecution must prove those elements beyond a reasonable doubt. It must also prove the allegations and specifications relating to prior offenses beyond a reasonable doubt. However, it is our contention that those must be separate issues. ” (Emphasis added.)
¶4 The majority, however, has determined that:
“The record does not indicate that appellant requested a separate hearing before the trial judge on the prior offense specifications. Counsel instead requested that the prior offense specifications be tried by the jury in a separate hearing. R.C. 2941.142 does not provide for such a procedure.”
¶5 Although the request did not specifically mention R.C. 2941.142, the record clearly shows that defense counsel sought a determination of appellant’s prior convictions separate from the trial issues. Because counsel inadvertently stated that the jury 1 must determine the existence of the prior offense specification, the majority seizes upon that statement to justify a conclusion that “the issue of a separate hearing by the trial judge was not properly raised below.”
¶6 I am persuaded that the majority’s conclusion elevates form over substance, and represents an unreasonably narrow interpretation of the defendant’s “request” pursuant to R.C. 2941.142.
¶7 Alternatively, the majority holds that “[t]he request to not try these offenses before the jury was not timely made.” In my opinion, however, the clear language of Crim. R. 12 dictates the opposite conclusion.
¶8 Appellant’s request was made to the court as the indictment was being read during voir dire. Therefore, the request was made prior to trial. Crim. R. 12(B) and (C) provide:
“(B) Pretrial motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial:
“(1) Defenses and objections based on defects in the institution of the prosecution;
“(2) Defenses and objections based on defects in the indictment, information, or complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding);
“(3) Motions to suppress evidence, including but not limited to statements and identification testimony, on the ground that it was illegally obtained. Such motions shall be filed in the trial court only;
“(4) Requests for discovery under Rule 16;
“(5) Requests for severance of charges or defendants under Rule 14.
“(C) Motion Date. All pretrial motions except as provided in Rule 7(E) and Rule 16(F) shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier. The court in the interest of justice may extend the time for making pretrial motions.” (Emphasis added.)
¶9 Crim. R. 12(B) provides that a “request” may be raised before trial by motion. If the request is made by motion, then Section (C) governing the motion date provisions of Crim. R. 12(C) becomes applicable. Crim. R. 12 also *95 lists five objections which must be raised before trial. The request that the trial court determine prior convictions at sentencing is clearly a request that could be made by motion, but it is not mandatory that the request be made in the form of a motion.
¶10 Consequently, I am persuaded that appellant’s request was timely and the trial court committed prejudicial error in denying said request. Accordingly, I would reverse and remand for a new trial.