682 So. 2d 485 | Ala. Crim. App. | 1996
The petitioner, James Paul Rice, pleaded guilty and was convicted of the offense of attempted rape in the second degree. The petitioner was originally indicted for rape in the first degree and for incest. The indictment was subsequently amended to charge attempted rape in the second degree. This is the appellant's fourth post-conviction petition filed pursuant to Rule 32, Ala.R.Crim.P. He cites Hall v. State,
Although this is the petitioner's fourth post-conviction petition, he has shown good cause why he did not raise this issue in a previous petition and he has filed his petition within six months of discovering the rule of law articulated inHall. (C. 13.) This court, in Mitchell v. State,
On return to remand, the trial court filed an order finding that the victim was over the age of 16 years at the time of the offense; thus, second degree rape is not a lesser included offense of first degree rape under these facts. This very issue was addressed in Hall, supra. Hall held that the trial court was without jurisdiction to accept a guilty plea from the defendant on an offense for which he had not been indicted.See, Glover v. State,
For the foregoing reasons, the trial court's judgment in this case is reversed and the case remanded.
REVERSED AND REMANDED.
All the Judges concur.