Ellis v. State

686 So. 2d 1265 (1996)

Anthony ELLIS v. STATE.

CR-95-426.

Court of Criminal Appeals of Alabama.

March 8, 1996.

Anthony Ellis, pro se.

Jeff Sessions, Atty. Gen., and David Bjurberg, Asst. Atty. Gen., for Appellee.

COBB, Judge.

Anthony Ellis appeals from the denial of his Rule 32, Ala.R.Crim.P., petition attacking his conviction for second degree rape. The appellant's petition alleges that he *1266 was indicted for first degree rape but that he pleaded guilty to the offense of second degree rape. The appellant contends that the indictment could not have been amended to allow him to so plead because, he says, second degree rape is not a lesser included offense of first degree rape. Although in limited circumstances, second degree rape can be a lesser included offense of first degree rape, see Ex parte Washington, 571 So. 2d 1062 (Ala.1990), the appellant is correct in stating that generally it is not a lesser included offense, see Allen v. State, 472 So. 2d 1122 (Ala.Crim.App.1985); Ross v. State, 529 So. 2d 1074 (Ala.Crim.App.1988).

The appellant's allegations in his petition are unrefuted by the State. Therefore, the appellant is entitled to a hearing on this issue.

The trial court denied the petition, stating that this issue was one that could have been, but was not, raised on appeal. However, if the indictment was amended to charge an offense that was not a lesser included offense of the one originally charged, then the appellant's conviction and sentence are void because the trial court was without jurisdiction to render judgment. Ross. The ground found in Rule 32.2(a)(5) on which the trial court based its judgment specifically states that that ground cannot be used if the ground for relief raises jurisdictional issues.

Thus, this cause is remanded to the trial court with instructions that a hearing be held on the appellant's petition. If the court finds that second degree rape is not a lesser included offense of rape in the first degree in this case, the appellant's sentence must be vacated. A return to remand shall be made to this court within 77 days of this opinion. Said return shall include a transcript of all proceedings as well as any relevant documents, including the indictment in this case.

REMANDED WITH DIRECTIONS.[*]

All the Judges concur.

[*] Note from the Reporter of Decisions: On September 27, 1996, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.