# Burtram v. State

> Court of Criminal Appeals of Alabama · December 18, 1998 · 733 So. 2d 921

URL: https://www.frixlaw.com/law-library/cases/9933423

## Case

- **Full name:** Randall Burtram v. State.
- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** December 18, 1998
- **Citations:** 733 So. 2d 921; 1998 Ala. Crim. App. LEXIS 270; 1998 WL 881185
- **Precedential status:** Published
- **Opinion:** Concurrence by Baschab
- **Judges:** Baschab, Cobb
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9933423

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9933423. Public record. Not legal advice.