’ Ellis v. State, 686 So.2d 1265, 1266 (Ala.Cr.App.1996). Burtram did not offer any facts or caselaw in support of his argument that counsel's assertion that Burtram could be convicted of both first- and second-degree rape was error.

Therefore, he says, he advised Burtram of the possible consequences of proceeding to trial, including that in some cases, rape in the second degree is treated as a separate offense from rape in the first degree and not necessarily a lesser included offense. "Although in limited circumstances, second degree rape can be a lesser included offense of first degree rape, see Ex parte Washington, 571 So.2d 1062 (Ala. 1990), . . . generally it is not a lesser included offense, see Allen v. State, 472 So.2d 1122 (Ala.Cr.App. 1985); Ross v. State, 529 So.2d 1074 (Ala.Cr.App. 1988)." Ellis v. State, 686 So.2d 1265, 1266 (Ala.Cr.App. 1996). Burtram did not offer any facts or caselaw in support of his argument that counsel's assertion that Burtram could be convicted of both first- and second-degree rape was error.

As a matter of law, rape in the second degree and sodomy in the second degree, respectively, can only be lesser included offenses of their first-degree counterparts in very limited circumstances. Ellis v. State, 686 So.2d 1265, 1266 (Ala.Cr.App. 1996), citing Ex parte Washington, 571 So.2d 1062 (Ala. 1990). As was explained in Allen v. State, 472 So.2d 1122, 1125-26 (Ala.Cr.App. 1985), with regard to rape:

This judgment must be reversed in accordance with the rule of law recently applied in Rice v. State, 682 So.2d 485 (Ala.Cr.App. 1996): when the trial court accepts a defendant's guilty plea to an offense for which the defendant has not been indicted, the court's judgment is void because the court lacked jurisdiction. See also Ellis v. State, 686 So.2d 1265 (Ala.Cr.App. 1996); Johnson v. State, 675 So.2d 85 (Ala.Cr.App. 1995); Eiland v. State, 668 So.2d 147 (Ala.Cr.App. 1995); Hammond v. State, 665 So.2d 970 (Ala.Cr.App. 1995); Hall v. State, 655 So.2d 51 (Ala.Cr.App. 1995); Glover v. State, 649 So.2d 216 (Ala.Cr.App. 1994); Ross v. State, 529 So.2d 1074 (Ala.Cr.App. 1988). The court in Rice found that because the victim was over the age of 16 at the time of the offense, second degree rape was not a lesser included offense of first degree rape under the facts.