Opinion

Burtram v. State

  • 733 So. 2d 921
  • 1998 Ala. Crim. App. LEXIS 270
  • 1998 WL 881185
Court
Court of Criminal Appeals of Alabama
Filed
Dec 18, 1998
Status
Published
Author
Baschab
On the bench
Baschab, Cobb
Cited by
9 cases
Authority
More cited than 15.1%

recognizing that charges of first-degree rape under § 13A-6-61 and second-degree rape under § 13A-6-62 arising out of a single incident are distinct offenses for which a defendant can be convicted and sentenced

How later courts described this case

  • recognizing that charges of first-degree rape under § 13A-6-61 and second-degree rape under § 13A-6-62 arising out of a single incident are distinct offenses for which a defendant can be convicted and sentenced

Written by the judges who cited it.

The opinion

I do not agree with the majority's blanket assertion that first-degree rape and second-degree rape are separate offenses. I believe that the majority's strict reliance on Blockburger is misplaced. This court has previously noted that "`the Alabama Supreme Court has explicitly rejected a strict "elements" approach to the lesser-included/same offense determination, and has implicitly recognized the Blockburger test as a "floor" rather than a "ceiling" for "same offense" definitions.'" Knight v. State, 675 So.2d 487 , 497 (Ala.Cr.App. 1995), writ denied, 675 So.2d 502 (Ala. 1996) (quoting King v. State, 574 So.2d 921 , 930 (Ala.Cr.App. 1990) (Bowen, J., concurring specially)). Furthermore, we have held that "the Blockburger test should be applied in light of the particular facts in question and not to the elements of the *Page 926

crime in the abstract." State v. Patton, 669 So.2d 1002 , 1005

(Ala.Cr.App. 1993). However, because Alabama caselaw on this issue is unsettled, I cannot say that trial counsel was ineffective for advising the appellant that there was a possibility that he could be convicted of both first- and second-degree rape. Therefore, I concur in the result only.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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