Smith v. State

I disagree with the majority opinion affirming the appellant’s conviction. The language of the indictment charged the appellant with first-degree rape, alleging that the victim was under the age of 12. However, the appellant pled guilty to second-degree rape, acknowledging that the victim was between the ages of 12 and 16. Therefore, under the facts of this case, second-degree rape was not a lesser included offense of first-degree rape. See Ross v. State, 529 So.2d 1074 (Ala.Crim.App.1988); Allen v. State, 472 So.2d 1122 (Ala.Crim.App.1985). Even though the appellant knew he was pleading…