RA v. State

943 So.2d 135 (2006)

R.A.
v.
STATE of Alabama.

CR-04-1360.

Court of Criminal Appeals of Alabama.

February 3, 2006. Rehearing Denied March 17, 2006. Certiorari Denied May 12, 2006.

John C. Taylor, Huntsville, for appellant.

Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.

Alabama Supreme Court 1050849.

COBB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and SHAW and WISE, JJ., concur. BASCHAB, J., dissents, with opinion.

BASCHAB, Judge, dissenting.

In this case, the appellant was convicted of one count of first-degree sodomy, a violation of § 13A-6-63(a)(1), Ala.Code 1975, and one count of second-degree sodomy, a violation of § 13A-6-64(a)(1), Ala. Code 1975. However, both of the appellant's convictions were based on evidence that, on one occasion, the appellant put his mouth or tongue on the victim's vagina. Therefore, the appellant's convictions for both first-degree sodomy and second-degree sodomy violate double jeopardy principles, and one of his convictions should be set aside. See Ex parte Robey, 920 So.2d 1069 (Ala.2004); Ex parte Washington, 571 So.2d 1062 (Ala.1990). Accordingly, I must respectfully dissent.