dissenting:
The primary issue in this case is whether Wang was in actuality acquitted of the enhanced felony charge during the first trial. If acquitted in legal effect, then double jeopardy bars retrial. If, however, the trial judge did not in fact find an insufficiency of the evidence to convict on the enhanced charge, but instead found that the evidence, as introduced, of the prior uncounseled conviction was sufficiently prejudicial that he could not allow the case to go to the jury on the lesser included offense of Theft of Property in violation of Ohio Rev.Code Ann. § 2913.02, then Wang’s second trial and subsequent conviction are not barred by double jeopardy. We must interpret the trial judge’s actions at the close of the first trial in which the trial judge expressly granted a “new trial,” and denied Wang’s motion for acquittal.
The trial judge was confronted with the choice of denying the defendant’s motions and allowing the case to proceed to the jury on the lesser included offense (since he construed Baldasar to make conviction of the enhanced crime impossible1), granting the motion to acquit, or declaring a mistrial2 due to prejudice. The trial judge was in the best posture to determine the proper course of action. His decision should not be overturned on appeal unless clearly erroneous: “[I]t would exceed the appropriate scope of review were we ourselves to attempt to pass an independent judgment upon the propriety of the mistrial, even should we be prone to do so[.]” Gori v. United States, 367 U.S. 364, 367, 81 S.Ct. 1523, 1525, 6 L.Ed.2d 901 (1961).
The trial judge stated: “I believe from the evidence that the defendant was prejudiced, thereby, and prevented from having a fair trial. On that basis I am going to grant a motion for a [mistrial], and we will set it.” It is clear that the judge granted the motion on the basis of prejudice — not on the basis that the state failed to prove its case.
Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the de*959fendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons v. United States, 142 U.S. 148 [12 S.Ct. 171, 35 L.Ed. 968 (1891)]; Logan v. United States, 144 U.S. 263 [12 S.Ct. 617, 36 L.Ed. 429 (1892) ]; Dreyer v. Illinois, 187 U.S. 71, 85-86 [23 S.Ct. 28, 32-33, 47 L.Ed. 79 (1902)].
Gori, 367 U.S. at 368, 81 S.Ct. at 1526; Brock v. North Carolina, 344 U.S. 424, 427, 73 S.Ct. 349, 330-51, 97 L.Ed. 456 (1953) (“This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served.”) (citations omitted).
Even had the trial judge thought the State failed to prove its primary case, he could have allowed the case to go to the jury on the lesser included offense for which defendant Wang was later tried and convicted. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982); see Wade v. Hunter, 336 U.S. 684, 688-89, 69 S.Ct. 834, 836-37, 93 L.Ed. 974 (1949):
The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.
Only the judge’s perception that the defendant was unfairly prejudiced by the manner of proof about the prior conviction prevented the case going to the jury on the misdemeanor charge at the first trial. The judge responded to defendant’s motion.
In this case “there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.” Wade, 336 U.S. at 688-89, 69 S.Ct. at 836-37. The trial judge himself, in a certificate “setting forth the facts occurring at the trial[,]”3 stated that
This Court did not believe that proof of the presence of counsel at the prior conviction was an essential element of the crime with which defendant was charged, rather that factor would be pertinent at sentencing. Therefore, this Court denied the motion for acquittal, and made no finding on any elements of the crime charged.
Because of the volume of testimony presented concerning the prior conviction, and its potential to misdirect and confuse the jury, this Court granted a mistrial on those grounds at the specific request of the defendant. (Transcripts of first trial, pages 155-56)
On habeas review, “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State ... were parties, evidenced by a written finding ... shall be presumed to be correct,____” 28 U.S.C. § 2254(d) (emphasis added). None of the eight exceptions to this rule under the statute apply. The Ohio state courts have found that the trial judge declared a mistrial due to testimony that unfairly prejudiced the defendant. To grant the writ in this case would fail to give the state courts’ judgment a presumption of validity that Congress, and the Supreme Court, requires: “[The] interest in federalism recognized by Congress in enacting § 2254(d) requires deference by federal courts to factual determinations of all state courts.” Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981) (emphasis added). The trial judge granted a mistrial for the reasons stated and borne *960out on the record. I would deny the writ accordingly.
. Whether the trial court's interpretation of Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), was correct or not is immaterial in my view. Baldasar, correctly construed, would bar a conviction for the enhanced offense. It would not, however, have had any effect on the validity of a conviction, during the first trial, for the lesser included offense.
. The trial judge erroneously relabeled the defendant’s motion for mistrial a "motion for new trial.” The request was for a mistrial.
. 28 U.S.C.A. § 2245 clearly allows, in habeas corpus proceedings, a trial judge to set forth the facts. Wang’s argument that the judge improperly “recharacterizes” the events is without merit. Congress recognized that at trial, where events move fast and the written record may inadequately reflect the true effect of the parties’ actions, a trial judge’s certificate may assist the federal court in reviewing a state conviction in a habeas corpus proceeding. I would not disregard the trial judge’s certificate and would accord deference to the trial judge.