Opinion
8 Div. 606.
January 21, 1975. Rehearing Denied February 18, 1975.
Appeal from the Lauderdale County Circuit Court, Robert M. Hill, J.
No brief for appellant.
William J. Baxley, Atty. Gen., and Charles N. Parnell, III, Asst. Atty. Gen., for the State.
The appellant was indicted in Lauderdale County for the offense of robbery (case #15117) and assault with intent to murder (case #15118).
On June 17, 1974, appellant entered a plea of guilty in circuit court case #15117 and was convicted of a lesser offense of larceny from the person. Subsequently, probation was denied and he was sentenced to two years.
On September 6, 1974, after counsel for appellant and the state agreed, the assault with intent to murder charge (case # 15118) was amended and the appellant was allowed to enter a plea to a charge of assault with intent to rob. Twenty days later, appellant was given a two-year sentence to run concurrently with case #15117.
It is our judgment that assault with intent to rob is not a lesser or an included offense in an assault with intent to murder charge, and that the trial court was without any authority to accept such plea to the amended charge. Title 15, Section 263, Code of Alabama. Based on the foregoing, we reverse the judgment and remand the cause in case No. 15118. The judgment in case No. 15117 is affirmed.
Affirmed in part; reversed and remanded in part.
CATES, P. J., and TYSON and HARRIS, JJ., concur.