author: SHAW, Judge. SHAW, Judge.

text:
    Robert James BRADLEY v. STATE of Alabama.
    CR-03-0453.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2004.
    Opinion Overruling Application for Rehearing Jan. 7, 2005.

      Stephen T. Speakman, Auburn, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   SHAW, Judge.

Robert James Bradley was indicted for robbery in the first degree, a violation of § 13A-8^41(a)(l), Ala.Code 1975. A jury convicted him of assault in the second degree, a violation of § 13A-6-21(a)(2), Ala. Code 1975. He was sentenced, as a habitual felony offender, to life imprisonment.

The evidence adduced at trial indicated the following. On the afternoon of February 17, 2003, Bradley entered an automobile-repair shop, TNT Transmission Service; pulled a gun on the owner, Hung Nguyen, and the manager, Minh Nguyen; and demanded money. Bradley fired a shot toward Minh, but missed, at which point the gun jammed. While Bradley was trying to unjam the gun, Minh grabbed the gun and a struggle ensued. Hung joined the struggle and Bradley hit Hung over the head several times with the clip from the gun. Hung eventually got the gun away from Bradley, ran outside, and threw the gun on top of a delivery truck parked outside. Bradley followed, got the gun off the top of the truck, and then began shooting toward Hung, but again missed. Hung retrieved his own gun and fired it in the air. At that point, Bradley fled. He turned himself into police the next day.

This appeal was originally submitted by Bradley’s counsel filing an Anders brief. However, upon our review of the record, we noticed an issue arguable on its merits that warranted further briefing. We granted Bradley’s counsel’s motion to withdraw, appointed new counsel to represent Bradley, and requested that the parties file briefs addressing the following issue:

“In light of Powell v. State, 624 So.2d 220 (Ala.Crim.App.1993), is second-degree assault under § 13A-6-21(a)(2), Ala.Code 1975, the crime for which [Bradley] was convicted, a lesser-included offense of first-degree robbery under § 13A-8^tl(a)(l), Ala.Code 1975, the crime for which [Bradley] was indicted?”

We also requested that the parties address the implications of Hamilton v. State, 455 So.2d 170 (Ala.Crim.App.1984), and Burton v. State, 487 So.2d 951 (Ala.Crim.App.1984), on this issue. Both parties filed thorough and well-argued briefs addressing the issue and, after reviewing the briefs as well as the record in this case, we conclude that second-degree assault under § 13A-6-21 (a)(2) is not a lesser-included offense of first-degree robbery under § 13A-8^11(a)(l) as charged in Bradley’s indictment.

Bradley was indicted for first-degree robbery pursuant to § 13A-8-41(a)(l), which provides that “[a] person commits the crime of robbery in the first degree if he violates Section 18A-8-43 [] and he ... [i]s armed with a deadly weapon or dangerous instrument.” However, Bradley was convicted of second-degree assault pursuant to § 13A — 6—21(a)(2), which provides that “[a] person commits the crime of assault in the second degree if ... [w]ith intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or a dangerous instrument.”

Section 13A-1-9 provides, in pertinent part:

“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interests, or a lesser kind of culpability suffices to establish its commission.”

In Bush v. State, 580 So.2d 106 (Ala. Crim.App.1991), the appellant was indicted for and convicted of robbery in the first degree under § 13A-8-41(a)(l). This Court held that he was not entitled to a jury instruction on assault in the second degree because second-degree assault was not a lesser-included offense of first-degree robbery. In Powell v. State, 624 So.2d 220 (Ala.Crim.App.1993), this Court addressed the issue whether the appellant, who had been indicted for and convicted of robbery in the first degree pursuant to § 13A-8-41(a)(l), was entitled to jury instructions on assault in the second degree pursuant to § 13A-6-21(a)(3) and assault in the third degree pursuant to § 13A-6-22(a)(2) — reckless assault. Holding that the appellant was not entitled to such instructions, this Court explained:

“The appellant argues that the trial court erred by refusing to give his requested jury instructions regarding reckless assault. He contends that because he asserted at trial that he had been intoxicated and, therefore, that he did not have the specific intent to commit robbery, the trial court should have instructed the jury regarding reckless assault in the second degree as provided by § 13A-6-21(a)(3) and reckless assault in the third degree, as provided by 13A-6 — 22(a)(2), Code of Alabama 1975.
“The appellant was charged by indictment with robbery in the first degree for 'us[ing] force or threaten[ing] the imminent use of force against the person of Katherine Griffin, with the intent to overcome her physical resistance or physical power of resistance or to compel acquiescence to the taking of or escaping with [her] property, while [he] was armed with a deadly weapon or dangerous instrument....’ He was not charged pursuant to § 13A-8-41(a)(2), which provides for robbery in the first degree in which the defendant allegedly caused ‘physical injury to another.’ The state merely had to prove that he used ‘force,’ rather than prove that the victim suffered ‘physical injury.’
“Neither reckless assault in the second degree as provided for by § 13A-6-21(a)(3) nor reckless assault in the third degree as provided for by § 13A-6-22(a)(2), is a lesser included offense of the robbery in the first degree alternative of § 13A-8-41(a)[(l)], as the term ‘lesser included offense’ is defined by § 13A-1-9 or by Ex parte Jordan, 486 So.2d 485 (Ala.1986). Neither assault offense ‘is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged.... ’ See § 13A-l-9(a)(l). Both § 13A-6-21(a)(3) and § 13A-6-22(a)(2) require proof of some physical injury before one can be charged with assault, whereas § 13A-8-41(a)[(l)] requires only proof of force for one to be charged with robbery. Neither assault section ‘consists of an attempt or solicitation to commit [robbery in the first degree] or to commit a lesser included offense.’ See § 13A-l-9(a)(2). Nor is reckless assault in the second or third degree ‘specifically designated by statute as a lesser degree’ of robbery in the first degree. See § 13A-l-9(a)(3). Finally, contrary to §. 13A-l-9(a)(4), both code sections charging assault require greater injury than required to charge robbery rather than lesser injury. Thus, because reckless assault as provided by §§ 13A-6-21(a)(3) and -22(a)(2) is not a lesser included offense of robbery in the first degree as charged in the indictment, the trial court did not err by refusing the appellant’s requested jury instructions.”

624 So.2d at 225-26.

The rationale in Powell is applicable here. As was the case in Powell, Bradley was charged with first-degree robbery under § 13A-8-41(a)(l) — using or threatening the imminent use of force against the victim while armed with a deadly weapon or dangerous instrument — not under § 13A-8-41(a)(2) — using or threatening the imminent use of force against the victim and causing serious physical injury to the victim. Second-degree assault under § 13A-6-21 (a)(2) requires proof of physical injury, whereas first-degree robbery under § 13A-8-41(a)(l) requires proof only of force, see § 13A-l-9(a)(l); thus, second-degree assault under § 13A-6-21(a)(2) actually requires greater injury than that required for first-degree robbery under § 13A-8-41(a)(l), not lesser injury, see § 13A-l-9(a)(4). In addition, second-degree assault under § 13A-6-21(a)(2) does not “consistí] of an attempt or solicitation to commit [first-degree robbery] or to commit a lesser included offense,” § 13A-l-9(a)(2), nor is second-degree assault under § 13A-6-21(a)(2) “specifically designated by statute as a lesser degree” of first-degree robbery under § 13A-8-41(a)(1). § 13A-l-9(a)(3). Thus, we hold that second-degree assault under § 13A-6-21(a)(2) is not a lesser-included offense of first-degree robbery under § 13A-8-41(a)(1).

We recognize that in Hamilton this Court suggested that assault was a lesser-included offense of first-degree robbery under § 13A-8-41(a)(l). The issue in Hamilton was whether there was a fatal variance between the indictment and the trial court’s oral charge to the jury. The appellant in Hamilton was indicted for first-degree robbery under § 13A-8-41(a)(1); however, the court charged the jury on both § 13A-8^1(a)(l) and (a)(2) in the alternative. Finding no fatal variance because subsections (a)(1) and (a)(2) of § 13A-8-41 were not mutually exclusive and contradictory, but could both occur at the same time, the Court stated:

“Robbery includes the lesser included offenses of ‘assault with intent to rob, for larceny, for attempt to rob, for assault, or for an assault and battery.’ Robertson v. State, 24 Ala.App. 237, 237, 133 So. 742, 742 (1931), Rickard v. State, 44 Ala.App. 281, 207 So.2d 422 (1968). The lesser included offenses are the same for robbery under § 13A-8-41(a)(1) and under § 13A-8-41(a)(2).”

455 So.2d at 173. The issue in Hamilton was not whether assault could be a lesser-included offense of first-degree robbery under § 13A-8-41(a)(l), as is the issue here, but whether it was error to charge the jury on both subsections of the first-degree robbery statute; thus, this statement was not essential to the holding in Hamilton, but was dicta. Moreover, in making this statement, the Court in Hamilton relied on caselaw that predated the adoption of the robbery and assault statutes and that dealt with the common-law definitions of robbery and assault, definitions very different from the ones in the current statutes, see Commentary to §§ 13A-8-40 through 13A-8-44 and Commentary to §§ 13A-6-20 through 13A-6-22, and the Court undertook no analysis of the statutory elements of robbery or assault in making the statement. Therefore, we do not believe the statement in Hamilton, that the lesser-included offenses are the same for both § 13A-8-41(a)(l) and § 13A-8^11(a)(2), is controlling on this issue. However, to avoid any ambiguity in that regard, we expressly overrule Hamilton to the extent that it suggests that assault is a lesser-included offense of first-degree robbery under § 13A-8^41(a)(l).

We likewise find that Burton is not controlling. In Burton, the appellant was indicted for and convicted of robbery in the first degree pursuant to § 13A-8-41(a)(l). This Court held that the appellant was not entitled to an instruction on assault in the first degree because “[t]he evidence is subject to no reasonable construction that the defendant committed an assault in the first degree upon the alleged victim but that he did so without any intent to steal.” 487 So.2d at 959. However, the Court in Burton did not analyze whether first-degree assault could be a lesser-included offense of first-degree robbery under § 13A-8-41(a)(1) based on the statutory elements of those offenses; it merely assumed that it could be. Therefore, Burton does not stand for the proposition that assault is a lesser-included offense of first-degree robbery under § 13A-8-41(a)(l).

Finally, we reject the State’s argument that because the facts in this case indicate that Bradley caused physical injury to the victim and because Bradley consented to the trial court’s instructing the jury on second-degree assault, the indictment was effectively “amended” with Bradley’s consent to charge second-degree assault and, therefore, his conviction for second-degree assault is proper. Although a trial court can amend an indictment through its jury instructions, see Ash v. State, 843 So.2d 213 (Ala.2002), a “defendant cannot consent to an amendment that effectively charges an offense not contemplated by the indictment.” Ex parte Cole, 842 So.2d 605, 608 (Ala.2002). Because we have already determined that second-degree assault under § 13A-6-21(a)(2) is not a lesser-included offense of first-degree robbery under § 13A-8-41(a)(l), any “amendment” to the indictment to charge second-degree assault was improper. See Rule 13.5(a), Ala.R.Crim.P. See also Wright v. State, 902 So.2d 720 (Ala.Crim.App.2004).

Because second-degree assault under § 13A-6-21(a)(2) is not a lesser-included offense of first-degree robbery under § 13A-8-41(a)(l), the trial court lacked jurisdiction to adjudge Bradley guilty of second-degree assault based on the indictment charging robbery in the first degree, and Bradley’s conviction and sentence for second-degree assault must be reversed. Moreover, the jury’s verdict finding Bradley guilty of second-degree assault effectively acquitted Bradley of first-degree robbery as charged in the indictment; thus, Bradley cannot be retried for robbery in the first degree. See McKelvey v. State, 895 So.2d 1025 (Ala.Crim.App.2004), and Wright.

Based on the foregoing, the judgment of the trial court is reversed and this cause remanded for the trial court to vacate Bradley’s conviction and sentence for assault in the second degree.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

On Application for Rehearing

SHAW, Judge.

In an opinion issued on October 1, 2004, this Court reversed Robert James Bradley’s conviction for assault in the second degree, a violation § 13A-6-21(a)(2), Ala. Code 1975, holding that second-degree assault under § 13A-6-21(a)(2) was not a lesser-included offense of robbery in the first degree under § 13A-8-41(a)(l), Ala. Code 1975, as charged in Bradley’s indictment.

The State has filed an application for rehearing requesting that we set aside our judgment. Although we have already addressed the several arguments advanced by the State on rehearing, one merits further discussion. The State argues that this Court erroneously concluded that second-degree assault under § 13A-6-21(a)(2) can never be a lesser-included offense of first-degree robbery under § 13A-8-41(a)(1) because, the State says, this Court failed to consider the facts of this particular case. According to the State, the evidence at trial established that Bradley assaulted the victim; therefore, the State argues, second-degree assault is a lesser-included offense of first-degree robbery under the facts in this case. In support of its argument, the State relies on Ex parte Jordan, 486 So.2d 485 (Ala.1986); Anderson v. State, 686 So.2d 381 (Ala.1996); Eiland v. State, 668 So.2d 147 (Ala.Crim.App.1995); Farmer v. State, 565 So.2d 1238 (Ala.Crim.App.1990); Miller v. State, 565 So.2d 275 (Ala.Crim.App.1989); and Updyke v. State, 501 So.2d 566 (Ala.Crim.App.1986).

The State has misapprehended our holding in this case. We did not hold that second-degree assault under § 13A-6-21(a)(2) can never be a lesser-included offense of first-degree robbery under § 13A-8-41(a)(l); our holding was that, under the facts in this particular case, second-degree assault under § 13A-6-21(a)(2) is not a lesser-included offense of first-degree robbery under § 13A-8-41(a)(1) as charged in Bradley’s indictment. We agree with the State that' the evidence introduced at trial in this case established an assault; however, the facts necessary to support that charge were not alleged in Bradley’s indictment, as was the case in Ex parte Jordan. Moreover, the validity of the holding in Anderson is questionable, and there are insufficient facts in the opinions in Eiland, Farmer, Miller, and Updyke to' determine whether they support the State’s argument; as recently explained in Childers v. State, 899 So.2d 1025 (Ala.2004):

“In explicating [Ex parte] Cole, [842 So.2d 605 (Ala.2002)'] we are confronted with a number of Alabama precedents which address a foundational issue in Cole. Some are consistent with Cole, and some are not. Worse, those that are inconsistent with Cole are also inconsistent with Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
“This foundational issue is the difference between distinct offenses on the one hand and lesser-included offenses on the other. The difference is critical in our jurisprudence because we cannot consistently hold, -in one case, that an offense is lesser-and-included within a charged offense for the purpose of affirming a conviction pursuant to a trial or a guilty plea and yet, in another case, hold that the two offenses are distinct for the purpose of affirming two convictions under two separate charges.
“For purposes of double. jeopardy, Blockburger, 284 U.S. at 304, held that ‘where the same act or transaction constitutes a violation'of two, distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.-’ ‘The Block-burger test turns on the statutory elements of the two offenses, not on the actual evidence that may be used by the state in proving the crimes.’ Ex parte Wright, 477 So.2d 492, 493 (Ala.1985). ‘Alabama has applied the Blockburger test to determine whether two offenses are the “same” under the Alabama Constitution.’ Id. However, the Alabama appellate courts have, in deciding whether one offense is lesser-and-included within another, sometimes reached conclusions that conflict with the Blockbur-ger test.
“In Anderson v. State, 686 So.2d 381 (Ala.1996), the defendant Anderson was indicted for the single offense of first-degree rape under § 13A-6-61(a)(l). However, on the basis of the evidence presented by the State, the trial court instructed the jury that it could consider not only first-degree rape under § 13A-6-61(a)(l) but also first-degree assault under § 13A-6-20(a)(l) as a lesser-included offense. The jury found Anderson guilty of first-degree assault, and the trial court convicted and sentenced him accordingly. On appeal, Anderson argued that the trial court erred in instructing the jury on first-degree assault under § 13A-6-20(a)(l) as a lesser-included offense of first-degree rape under § 13A-6-61(a)(l) because first-degree assault under § 13A-6~20(a)(l) requires, as an essential element, a serious physical injury, while first-degree rape under § 13A-6-61(a)(1) does not.
“On certiorari review of the reversal by the Alabama Court of Criminal Appeals, Anderson v. State, 686 So.2d 378 (Ala.Crim.App.1994), the Alabama Supreme Court rejected Anderson’s argument. The Supreme Court said:
“ ‘Had Anderson been convicted of rape in the first degree and if no jury charges on assault had been given, then Anderson would have been entitled to a new trial, at which the jury would be instructed on assault as a lesser included offense, because the evidence here would support such a charge. It is apparent in this case that the jury believed that the sexual intercourse between the victim and Anderson was consensual. However, the jury also obviously determined that Anderson subsequently assaulted the victim, and it found him guilty of the offense of assault in the first degree. Therefore, the trial court did not err in charging on assault. The evidence supported the charge.’
“686 So.2d at 384 (emphasis added [in Childers ]).
“First-degree rape under § 13A-6-61(a)(1) requires, as an essential element, that the defendant engage in sexual intercourse with the victim by forcible compulsion. First-degree assault under § 13A-6-20(a)(l) does not. First-degree assault under § 13A-6-20(a)(l) requires, as an essential element, that the defendant cause serious physical injury. First-degree rape under § 13A-6-61(a)(l) does not. Therefore, under the Blockburger test, first-degree rape under § 13A-6-61(a)(l) and first-degree assault under § 13A-6-20(a)(l) are two separate offenses rather than a greater offense and its lesser-included offense. Under the Blockburger test, a defendant who committed both first-degree rape under § 13A-6-61(a)(l) and first-degree assault under § 13A-6-20(a)(l) in a single transaction could be indicted for, convicted of, and punished for, both offenses. Ex parte Dawson, 675 So.2d 905, 907 (Ala.1996). Accordingly, the holding in Anderson that the evidence presented by the State on the charge of first-degree rape under § 13A-6-61(a)(1) could make first-degree assault under § 13A-6-20(a)(l) a lesser-included offense of first-degree rape under § 13A-6-61(a)(l) conflicts with- the Blockburger test.
“In Ex parte Washington, 571 So.2d 1062 (Ala.1990), the defendant Washington was indicted for first-degree rape under § 13A-6-61(a)(l). While the indictment alleged that the defendant engaged in sexual intercourse with the victim by forcible compulsion, it did not allege the ages of the defendant and the victim. Upon motion of the State, the indictment was amended to charge second-degree rape under § 13A-6-62(a)(1). Washington entered a guilty plea to second-degree rape, under § 13A-6-62(a)(l) and then appealed his guilty-plea conviction. On appeal, Washington argued that the indictment could not be validly amended to charge second-degree rape under § 13A-6-62(a)(1) because that offense was not a lesser-included offense of first-degree rape under § 13A-6-61(a)(l). The reason, Washington argued, was that the ages of the defendant and the victim are essential elements of second-degree rape under § 13A-6-62(a)(l), while they are not essential elements of first-degree rape under § 13A-6-61(a)(l). Washington further argued that, since the amendment of the indictment was invalid, the trial court lacked subject-matter jurisdiction to accept his guilty plea to second-degree rape.
“On certiorari review of the affir-mance by the Alabama Court of Criminal Appeals, Washington v. State, 564 So.2d 115 (Ala.Crim.App.1990) (table), the Alabama Supreme Court rejected Anderson’s argument. In holding that second-degree rape under § 13A-6-62(a)(1) was a lesser-included offense of first-degree rape under § 13A-6-61(a)(1), the Washington Court said:
“ ‘[Washington] was indicted under § 13A-6-61(a)(l), engaging in sexual intercourse with a female by forcible compulsion.. The ages of the defendant and the victim are not necessary elements under § 13A-6-61(a)(l). The facts that the State would have brought forth in this case to prove forcible compulsion would have included the ages of Washington and the victim. If this case had gone to a jury, Washington would have been entitled to a jury instruction on second degree rape, as defined in § 13A-6-62(a)(l), the section of the Code Washington was charged with violating [by the amended indictment], and the charge to which he entered a plea of guilty.’
571 So.2d at 1064 (footnote omitted; emphasis added [in Childers ]).
“As noted above, first-degree rape under § 13A-6-61(a)(l) requires, as an essential element, that, the defendant accomplish the rape by forcible compulsion. Second-degree rape under § 13A-6-62(a)(l) does not. Second-degree rape under § 13A-6-62(a)(l) requires, as essential elements, that the defendant be 16 years old or older, that the victim be less. than 16 and more than 12 years old, and that the defendant be at least two years older than the victim. First-degree rape under § 13A-6-61(a)(l) does not. Thus, under the Blockburger test, first-degree rape under § 13A-6-61(a)(l) and second-degree rape under § 13A-6-62(a)(l) are two different offenses rather than a greater offense and its lesser-included offense. Yet, Washington held that the presentation by the State of evidence of first-degree rape under § 13A-6-61(a)(1), since it might incidentally include evidence of the essential elements of second-degree rape as well, made second-degree . rape under § 13A-6-62(a)(1) a lesser-included offense of first-degree rape under § 13A-6-61(a)(1). Thus, the holding in Washington conflicts with the Blockburger test.
“However, the holding in Ex parte Jordan, 486 So.2d 485, 488 (Ala.1986), is compatible with the Blockburger test. In Jordan, the indictment charged Jordan with two counts of murder. Count One, which charged Jordan with reckless murder, alleged that Jordan ‘ “did recklessly engage in conduct which manifested extreme indifference to human life and created a grave risk of death to [another person], and did thereby cause the death of John Howard Od[u]m by operating a motor vehicle under the influence of alcohol ... [and] striking the vehicle which John Howard Od[u]m was operating....” ’ 486 So.2d at 486 (footnote omitted). Count Two alleged intentional murder. Jordan requested a lesser-included-offense jury instruction on vehicular homicide. The vehicular-homicide statute provides that the essential elements of that offense consist of the defendant’s ‘unlawfully and unintentionally causing] the death of another person while engaging] in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle ... or to the regulation of traffic....’ § 32-5A-192(a), Ala.Code 1975 (emphasis added [in Childers ]). The trial court denied Jordan’s request for a lesser-included-offense jury instruction on vehicular homicide. The jury convicted Jordan of reckless murder under Count One of the indictment.
“On certiorari review of the affir-mance by the Alabama Court of Criminal Appeals, Jordan v. State, 486 So.2d 482 (Ala.Crim.App.1985), the Alabama Supreme Court explained and held:
“ ‘Under the proper application of subsection (1) of the lesser-included-offense statute to these criminal statutes, the issue is simple: Can all or fewer than all of these facts establishing the commission of murder also establish the commission of vehicular homicide? In the present case, they conceivably can. According to the language of the indictment and the jury’s subsequent conviction thereunder, Jordan “did recklessly engage in conduct which manifested extreme indifference to human life and created a grave risk of death ... and did thereby cause the death of John Howard Od[u]m by operating a motor vehicle under the influence of alcohol ... [and] striking the vehicle which John Howard Od[u]m was operating.... ” Some of these very same facts could establish the commission of vehicular homicide. Jordan operated a vehicle in a manner violating motor vehicle traffic laws, specifically, DUI laws. His driving proximately caused Odum’s death.
“ ‘Under the proper application of subsection (4) [of § 13A-1-9], the issue is whether the two criminal statutes differ under these facts only in that vehicular homicide contemplates a less serious injury or risk of injury or requires a lesser kind of culpability. As the [Court of Criminal Appeals] correctly noted, vehicular homicide does require a lesser kind of culpability. Reckless conduct creating a “grave risk of death” and “manifesting extreme indifference to human life” does encompass conduct in violation of motor vehicle laws which unintentionally but proximately causes another’s death.
“ ‘Therefore, under the facts of this case, vehicular homicide is a lesser included offense of murder by way of application of either subsection (1) or (4) of Code 1975, § 13A-1-9. Consequently, Jordan was entitled to [a lesser-ineluded-offense jury instruction on vehicular homicide].’
“486 So.2d at 488 (some emphasis added [in Childers ]). Thus, Ex parte Jordan held that, because the reckless-murder count of Jordan’s indictment alleged all of the essential elements of vehicular homicide, vehicular homicide was a lesser-included offense of the reckless murder charged in his indictment. The Ex parte Jordan Court considered whether the evidence establishing the allegations of the indictment, i.e., ‘the jury’s subsequent conviction [under the indictment];’ 486 So.2d at 488, justified a jury instruction on vehicular homicide only because the presence in the indictment of allegations of all of the essential elements of vehicular homicide made vehicular homicide a lesser-included offense under. Jordan’s indictment.
“The result in Aucoin v. State, 548 So.2d 1053 (Ala.Crim.App.1989), can be justified by the Ex parte Jordan rationale, although the Aucoin court applied a different rationale. A number of other precedents do not reveal enough detail about the content of the respective indictments for us to discern whether those precedents are consistent with Ex parte Jordan and Blockburger, or consistent with Anderson and Washington and inconsistent with Blockburger: Ex parte Long, 600 So.2d 982 (Ala.1992), overruled in part on other grounds by Ex parte Edwards, 816 So.2d 98, 108 (Ala.2001); Ex parte Stephens, 512 So.2d 786, 787-89 (Ala.1987); Ex parte Oliver, 518 So.2d 705, 705-07 (Ala.1987); Crawford v. State, 886 So.2d 846 (Ala.Crim.App.2003); Culpepper v. State, 827 So.2d 883, 884-87 (Ala.Crim.App.2001); C.P. v. State, 597 So.2d 246, 247 (Ala.Crim.App.1992); Black v. State, 586 So.2d 968 (Ala.Crim.App.1991); Farmer v. State, 565 So.2d 1238, 1239-40 (Ala.Crim.App.1990); Miller v. State, 565 So.2d 275, 276 (Ala.Crim.App.1989); Johnston v. State, 518 So.2d 244, 245-46 (Ala.Crim.App.1987); and Updyke v. State, 501 So.2d 566, 567-68 (Ala.Crim.App.1986).
“The holding in Cole is consistent with Ex parte Jordan and Blockburger. In Cole, ‘[t]he indictment by which Cole was charged [with first-degree robbery] alleged only facts describing a first-degree robbery in which he acted alone.’ 842 So.2d at 608. Cole pled guilty to second-degree robbery. At Cole’s guilty-plea proceeding, the prosecutor stated that the evidence established that another participant was present when Cole committed the robbery. This Court held that, while Cole’s ‘plea of guilty to the offense of second-degree robbery, in effect, “amended” his indictment to charge second-degree robbery,’ 842 So.2d at 606, that informal ‘amendment’ was not valid because it failed to comply with Rules 13.5(a) and 13.2(c), Ala.R.Crim.P., which ‘combine to permit only those amendments that charge a lesser-included offense [encompassed within the offense charged in the original indictment],’ 842 So.2d at 608. Since Cole’s original indictment failed to allege ‘facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery,’ 842 So.2d at 609, Cole’s indictment could not be informally amended by the prosecutor’s evidence that Cole was aided by another participant and Cole’s plea of guilty to second-degree robbery. ‘To treat the proceedings in this case as if the original indictment included [the] additional fact [that another participant was present] just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment of an indictment.’ Id. Finally, Cole held that, since the indictment was not validly amended to charge second-degree robbery, the trial court lacked subject-matter jurisdiction to accept Cole’s guilty plea to second-degree robbery. 842 So.2d at 607-09.”

899 So.2d at 1028-33 (footnotes omitted).

In Childers five Justices concurred to quash the writ as improvidently granted, but only four Justices concurred in the main opinion. Although the main opinion is not a majority opinion for precedential purposes, it nonetheless is consistent with this Court’s interpretation of Ex parte Cole, 842 So.2d 605 (Ala.2002), see Toliver v. State, 881 So.2d 1070 (Ala.Crim.App.2003), and with the decisions of both this Court and the Supreme Court in Wright v. State, 902 So.2d 720 (Ala.Crim.App.2004), aff'd, 902 So.2d 738 (Ala.2004).

APPLICATION OVERRULED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ„ concur.

      . Bradley was also indicted for attempted murder, a violation of §§ 13A-6-2 and 13A-4-2, Ala.Code 1975; the jury found him guilty of the lesser-included offense of reckless endangerment, a violation of § 13A-6-24, Ala. Code 1975. Bradley does not appeal that conviction.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Section. 13A-8-43 provides, in pertinent part:
      “(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
      "(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
      "(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

      . Bradley’s indictment charged, in pertinent part:
      "The grand jury of said county charge that, before the finding of this indictment, Robert James Bradley, whose name is to the grand juiy otherwise unknown than as stated, did in the course of committing a theft of property, to-wit: lawful United States currency, the property of TNT Transmission Service located at 2821 Government Street, use or threaten the imminent use of force against the person of Hung Nguyen, with intent to compel acquiescence to the taking of or escaping with the property, while the said Robert Bradley, or another participant, was armed with a deadly weapon or dangerous instrument, to-wit: a gun, in violation of § 13A-8-41(a)(1) of the Code of Alabama, against the peace and dignity of the'State of Alabama.”
      (C. 4.) At the charge conference, when asked about the charge on first-degree robbery, the prosecutor specifically stated that he was proceeding under subsection (a)(1) of § 13A-8-41 — that Bradley was armed with a deadly weapon or dangerous instrument — not under subsection (a)(2)' — that Bradley caused serious physical injury (R. 271-75), and the trial court charged the jury solely on subsection (a)(1) (R. 318-22; 336-39).

      . We note that the Court in Powell mistakenly cites to § 13A-8-41(a) (2), instead of § 13A-8-41 (a) (1) in two places; we have corrected these errors by putting the correct subsections in brackets.

      . We also note that, in holding that the indictment in Hamilton, although charging only a violation of § 13A-8-41(a)(l), was sufficient to notify the appellant that he would be expected to defend against either § 13A-8-41(a)(1) or § 13A-8-41(a)(2), this Court relied on Farley v. State, 437 So.2d 639 (Ala.Crim. App.1983), which held that there was no variance between an indictment charging theft of currency and proof of the theft of a check. However, Farley was overruled by Ex parte Airhart, 477 So.2d 979 (Ala.1985), in which the Alabama Supreme Court held that there was a fatal variance between an indictment charging theft of currency and proof of the theft of a check. Therefore, the continuing validity of the holding in Hamilton is questionable.

      . The record reflects that Bradley requested a jury instruction on third-degree assault and that, in response, the State then requested the jury instruction on second-degree assault. Bradley consented to the jury's being charged on both second- and third-degree assault.

      . Because of our disposition of this case, we decline to address the other issue raised by Bradley in his brief.


source: Caselaw Access Project

author: HARWOOD, Justice. STUART, Justice

license: Public Domain

text:
    Ex parte State of Alabama. (In re Robert James BRADLEY v. STATE of Alabama).
    1040558.
    Supreme Court of Alabama.
    Oct. 7, 2005.

      Troy King, atty. gen., and Stephanie N. Norman and Jean-Paul M. Chappell, asst, attys. gen., for petitioner.
    Steven T. Speakman, Auburn, for respondent.
   HARWOOD, Justice.

Robert James Bradley was indicted for robbery in the first degree under § 13A-8-41(a)(l), Ala.Code 1975 (person committing the robbery is armed with a deadly weapon or dangerous instrument), and for attempted murder. At his trial he was found guilty of reckless endangerment as a lesser-included offense of the charge of attempted murder and of assault in the second degree under § 13A-6-21 (a)(2), purportedly as a lesser-included offense of the charge of robbery in the first degree. He was sentenced to one year in the Mobile County jail on the reckless-endangerment conviction and to life, imprisonment, as a habitual felony offender, on the conviction for assault in the second degree. He subsequently appealed his second-degree-assault conviction and sentence, but he did not appeal the conviction for reckless endangerment.

Bradley’s trial counsel was allowed to withdraw, and new counsel appointed to represent Bradley on appeal; that attorney filed a “no merit” brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and requested permission to withdraw as Bradley’s counsel. On May 5, 2004, the Alabama Court of Criminal Appeals granted that request, appointed as successor appellate counsel the attorney presently representing Bradley, and directed that attorney to file a brief addressing the following pertinent question:

“In light of Powell v. State, 624 So.2d 220 (Ala.Crim.App.1993), is second-degree assault under § 13A-6-21(a)(2), Ala.Code 1975, the crime for which the appellant was convicted, a lesser-included offense of first-degree robbery under § 13A-8-41(a)(l), Ala.Code 1975, the crime for which the appellant was indicted?”

The Court of Criminal Appeals issued an opinion on Bradley’s appeal on October 1, 2004, holding that “second-degree assault under § 13A-6-21(a)(2) is not a lesser-included offense of first-degree robbery under § 13A-8-41(a)(l)” and that, consequently, “the trial court lacked jurisdiction to adjudge Bradley guilty of second-degree assault based on the indictment charging robbery in the first degree”; it reversed Bradley’s conviction and sentence for second-degree assault. Bradley v. State, 925 So.2d 221, 226 (Ala.Crim.App.2004). Additionally, the Court of Criminal Appeals stated: “Moreover, the jury’s verdict finding Bradley guilty of second-degree assault effectively acquitted Bradley of first-degree robbery as charged in the indictment; thus, Bradley cannot be retried for robbery in the first degree.” Id. The State applied for rehearing as to both the holding that assault in the second degree was not a lesser-included offense of robbery in the first degree and the holding that Bradley could not be retried for the offense of robbery in the first degree. The Court of Criminal Appeals overruled the application for rehearing on January 7, 2005, but extended its original opinion to explain:

“We did not hold that second-degree assault under § 13A-6-21(a)(2) can never be a lesser-included offense of first-degree robbery under § 13A-8-41(a)(l); our holding was that, under the facts in this particular case, second-degree assault under § 13A-6-21 (a)(2) is not a lesser-included- offense of first-degree robbery under § 13A-8^41(a)(l) as charged in Bradley’s indictment. We agree with the State that the evidence introduced at trial in this case established an assault; however, the facts necessary to support that charge were not alleged in Bradley’s indictment, as was the case in Ex parte Jordan [, 486 So.2d 485 (Ala.1986)].”

Bradley v. State, 925 So.2d 221, 227 (Ala.Crim.App.2004) (opinion on rehearing).

The Court of Criminal Appeals did not address in its opinion on rehearing the State’s separate contention that, even if assault in the second degree was not a lesser-included offense of robbery in the first degree under the particular subdivisions of the respective Code sections at issue, an implied acquittal for robbery in the first degree had occurred so that Bradley could not be retried for that offense.

Subsequently, the State filed a petition for a writ of certiorari with this Court, challenging only the holding of the Court of Criminal Appeals that Bradley had been effectively acquitted of the offense of first-degree robbery and could not be retried for that offense. The State asserted that the holding of the Court of Criminal Appeals conflicted with a statement by this Court in Wright v. State, 902 So.2d 738 (Ala.2004). In Wright, this Court, after holding that, under the particular circumstances of each of the two cases consolidated for certiorari review, a charge of second-degree robbery was not available as a lesser offense included in the charge. of first-degree robbery, concluded that the original indictments in each case charging first-degree robbery remained valid and that the State “may still try [the two defendants] on those charges, or it may attempt to reindict them for another offense justified by the facts.” Wright, 902 So.2d at 742. We granted the State’s petition solely to review the single issue whether the Court of Criminal Appeals erred in concluding that the jury’s verdict finding Bradley guilty of second-degree assault effectively acquitted him of the charge of first-degree robbery, so that Bradley cannot be retried on the robbery-in-the-first-degree charge. It is to be noted that the State does not seek review of the Court of Criminal Appeals’ holding that second-degree assault under § 13A-6-21(a)(2) was' not a lesser-included offense of first-degree robbery under § 13A-8-41 (a)(1) as charged in Bradley’s indictment. We affirm.

The record reveals that immediately following the evidentiary stage of the trial, the trial judge conducted a charge conference with counsel, and, in the process, solicited their views as to appropriate lesser-included offenses with respect to both charged offenses. With respect to the charge of first-degree robbery predicated on § 13A-8-41(a)(l), Ala.Code 1975, Bradley’s attorney requested a charge on assault in the third degree as a lesser-included offense. The assistant district attorney prosecuting the case advised the court that the State was not requesting any lesser offenses to the charged offense of robbery in the first degree, and he expressed the opinion that the facts of the case would not accommodate third-degree assault as a lesser-included offense. However, after the judge expressed his view that third-degree assault could be a lesser-included offense of first-degree robbery, the assistant district attorney took the position that if an instruction on assault, was going to be given, it should be predicated on § 13A-6-21(a)(2), under which a person commits the crime of assault in the second degree if, with intent to cause physical injury to another person, he causes physical injury to any person by means of a deadly weapon or a dangerous instrument. The State requested that the court charge the jury only -on assault in the second degree, and not assault in the third degree, given the evidence. When asked to comment about the propriety of charging the jury on second-degree assault as requested by the State but not 'on third-degree assault, counsel for Bradley expressed his opinion that whether the facts supported a finding of guilty as to- second-degree or third-degree assault “would be a jury question” and that the jury should be allowed to chose between- second- and third-degree assault based on its view of the evidence. The judge elected to charge the jury on both second-degree- assault under § 13A-6-21(a)(2) and third-degree assault under § 13A — 6—22(a)(1).

During the trial judge’s subsequent charge to the jury, he explained the elements of robbery in the first degree as charged in the indictment. He then further charged the jury:

“If you find from the evidence that the State has proved beyond a reasonable doubt each of the above elements of the offense of robbery in the first degree as charged in that indictment, then you shall find [Bradley] guilty of robbery in the first degree.
“If you find that the State has failed to prove beyond a reasonable doubt any one or more of the elements of the offense of robbery in the first degree, then you cannot find [Bradley] guilty of robbery in the first degree.
“In that event, you would move to consideration of the lesser included charge of assault in the second degree relative to the alleged victim named in this indictment....”

The court then proceeded to charge the jury concerning the relevant elements of assault in the second degree, thereafter explaining:

“If you find that the State has failed to prove beyond a reasonable doubt any one or more of the elements of assault in the second degree as a lesser included offense, then you cannot find [Bradley] guilty of assault in the second degree.
“In that event, you would turn to a consideration of the final potential lesser included charge in the robbery first degree indictment, that of assault third degree.”

The judge next charged the jury concerning the relevant elements of the offense of assault in the third degree.

The verdict form submitted to the jury with respect to the charge of robbery in the first degree provided four options: (1) finding Bradley “guilty of the offense of robbery in the first degree as charged in the indictment”; (2) finding Bradley “guilty of the offense of assault in the second degree as a lesser-included offense of that charged in the indictment”; (3) finding Bradley “guilty of the offense of assault in the third degree as a lesser-included offense of that charged in the indictment”; or (4) finding Bradley “not guilty.” A signature blank for the foreperson was provided under each of the four separate verdicts. In subsequently announcing the verdict of the jury, the foreperson stated that the jury found Bradley “guilty of the offense of assault in the second degree as a lesser-included offense of that charged in the indictment” and signed his name on the signature blank associated with that verdict.

The holding and analysis of the United States Supreme Court in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), as further explicated in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), controls the outcome of this appeal.

In Green, the defendant was indicted for murder in the first degree; the trial judge instructed the jury that it could find him guilty of either that offense or murder in the second degree, as a lesser-included offense. The jury found Green guilty of murder in the second degree, but its verdict was silent as to the charge of murder in the first degree. Green appealed the conviction and obtained a reversal on the basis that the charge of murder in the second degree was not supported by the evidence. On retrial, he was convicted of first-degree murder. The Supreme Court reversed that conviction, holding that it violated the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. The Court explained:

“Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of eases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder. But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green’s consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green’s jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense. Wade v. Hunter, 336 U.S. 684 [(1949)]. In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.’ ”

355 U.S. at 190-91, 78 S.Ct. 221 (footnote omitted).

In Price, the defendant’s murder trial resulted in a verdict finding the defendant guilty of the lesser-included offense of voluntary manslaughter; the verdict form was silent as to the murder charge. The defendant successfully appealed the conviction, but he was then tried again for murder. The second trial also resulted in a conviction for voluntary manslaughter, but a unanimous Supreme Court reversed the conviction, holding that the defendant should not have been exposed to a second prosecution for murder. “[T]his Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge.” 398 U.S. at 329, 90 S.Ct. 1757 (footnote omitted). The Court held that even though the defendant was convicted only of voluntary manslaughter at his second trial, the error in retrying him on the murder charge could not be disregarded as harmless because the protection of the Double Jeopardy Clause “is cast in terms of the risk of hazard of trial and conviction, not the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly.” 398 U.S. at 331, 90 S.Ct. 1757 (footnote omitted).

The jury verdict at the conclusion of Bradley’s trial represented more than an implicit acquittal of the charge of robbery in the first degree; under the instructions by which the jury was bound, its verdict included an explicit acquittal with respect to the offense of robbery in the first degree. The jury was instructed that only if it found that the State had failed to prove all of the elements of robbery in the first degree, so that the jury could not find Bradley guilty of that offense, should it “[i]n that event, ... move to consideration of the lesser included offense of assault in the second degree.” “The law is well settled that this Court will presume that the jury followed the trial court’s instructions unless there is evidence to the contrary.” Wootten v. Ivey, 877 So.2d 585, 590 (Ala. 2003). The verdict form, which listed in descending order the available verdict options by which Bradley could be found guilty of robbery in the first degree, assault in the second degree, or assault in the third degree or be found simply “not guilty,” conformed to the jury instructions, so that the verdict form contained no option that stated that Bradley was not guilty of robbery in the first degree. The verdict of not guilty of first-degree robbery was an explicit condition precedent, under the trial court’s instructions, to the jury’s proceeding to consider the offenses of assault in the second and third degrees. Accordingly, proceeding under those in-struetions and using the conforming verdict form, the jury clearly declared by its verdict that it had found Bradley not guilty of the offense of robbery in the first degree.

The State argues that Green is distinguishable because in it the defendant was convicted of a legitimately available lesser-included offense and that conviction was reversed only because the evidence was insufficient, whereas the offense Bradley was convicted of was not a lesser-included offense to the charged offense. Based on that distinction, the State reasons:

“Consequently, because assault in the second, degree was not a lesser-included offense of Bradley’s charged offense, the trial court lacked the jurisdiction to convict him of that offense and erroneously instructed the jury on assault in the second degree. [.Bradley v. State, 925 So.2d 221, - (Ala.Crim.App.2004)]. The jury never should have been able to consider the assault charge because it was not included in Bradley’s indictment; therefore, it should not act as an implied acquittal of the robbery in the first degree charge, and the State should be allowed to try Bradley again for the original charge.
“In Brown v. Ohio, 432 U.S. 161, 166 (1977), the Supreme Court noted that the test for determining whether the State violated Brown’s double jeopardy rights for successively prosecuting him for auto theft after convicting him of joyriding is whether ‘each provision requires proof of an additional fact which the other does not[.]’ Id. (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). The Court held that ‘the lesser offense [of] joyriding requires no proof beyond that which is required for conviction of the greater auto theft. The greater offense is therefore by definition the “same” for purposes of double jeopardy as any lesser offense included in it.’ Id. at 168. In United States v. Dixon, 509 U.S. 688, 706-711 (1993), the Court made clear that the Blockburger test is the only test for determining whether double jeopardy principles are violated.
“Robbery in the first degree under Section 13A-8-41(a)(l) requires the taking of property, which is not required to prove assault in the second degree; similarly, assault in the second degree requires proof of a physical injury, which is not a required element of robbery in the first degree, as charged under Section 13A-8-41(a)(l). Therefore, the Blockburger test is not met, and the State will not violate Bradley’s double jeopardy rights by retrying him for robbery in the first degree.”

(State’s reply brief, pp. 5-6.)

Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), however, is not on point, because Bradley does not contend that the jury verdict finding him guilty of assault in the second degree serves to bar a second prosecution for the “same offense.” Rather, he relies on the effect of the determination by the jury, before it was permitted under the governing instructions to reach a verdict concerning the offense of assault in the second degree, that Bradley was not guilty of robbery in the first degree.

The State argues that this Court held in Wright v. State, 902 So.2d 738 (Ala.2004), that under procedural circumstances such as exist in this case the original indictment remains valid, and the State may try the defendant under it, or it may attempt to reindict him for another offense justified by the facts.

In Wright,- we granted the State’s petitions for a writ of certiorari in two cases—Wright v. State, 902 So.2d 720 (Ala.Crim.App.2004), and King v. State, 902 So.2d 736 (Aia.Crim.App.2004). In each case, the defendant had been indicted for first-degree robbery. King had pleaded guilty to second-degree robbery, supposedly a lesser-included offense. Wright had proceeded to trial, but had persuaded the trial judge that under the evidence in his case second-degree robbery represented a lesser-included offense; therefore, the trial judge gave Wright’s requested written jury instruction to that effect. The trial judge charged the jury on both robbery in the first degree and robbery in the second degree, and the jury found Wright guilty of robbery in the second degree. King and Wright each subsequently challenged as void his conviction of second-degree robbery, under this Court’s holding in Ex parte Cole, 842 So.2d 605 (Ala.2002), because the indictments in both instances contained facts charging only robbery in the first degree and were never properly amended to include the factual averment necessary to accommodate recognition of robbery in the second degree as a lesser-included offense of first-degree robbery.

In Cole, the defendant had been originally indicted for first-degree robbery and first-degree assault but had been allowed to plead guilty to second-degree robbery, presumably as a lesser-included offense, and first-degree assault. Cole subsequently challenged only his conviction for second-degree robbery. The indictment alleged facts describing only a first-degree robbery in which the defendant had acted alone; it was never amended to include the factual averment required for second-degree robbery — that the defendant was aided by another person actually present. See § 13A-8-42, Ala.Code 1975. “Had the trial court obtained Cole’s consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element.” Cole, 842 So.2d at 609. Determining that the conviction for second-degree robbery had to be reversed because it did not represent a lesser-included offense under the indictment as drafted, this Court stated:

“Because the indictment charging him with first-degree robbery was improperly amended to charge second-degree robbery, Cole’s original indictment charging first-degree robbery remains valid. The State may try Cole on this charge, or if the factual circumstances would support a conviction for another degree of robbery, the State may rein-dict Cole for the proper offense. See Williams v. State, 823 So.2d 1285 (Ala. Crim.App.2001); Pless v. State, 805 So.2d 778 (Ala.Crim.App.2001); Marks v. State, 791 So.2d 1062, 1064 (Ala.Crim. App.2000). A reindictment after a conviction that has been held to be void does not constitute double jeopardy because, if a court is without jurisdiction, there can be no valid conviction; hence there is no jeopardy. Dutton v. State, 807 So.2d 596 (Ala.Crim.App.2001), citing Cox v. State, 585 So.2d 182, 192 (Ala.Crim.App.1991). See also Cox v. State, 462 So.2d 1047, 1051 (Ala.Crim. App.1985).”

842 So.2d at 609.

In Wright, after similarly concluding that the indictments in Wright’s case and in King’s case had not been properly amended so as to afford the trial court subject-matter jurisdiction over the potentially available lesser-included offense of robbery in the second degree in each case, so that each conviction for second-degree robbery was void, this Court declared:

“As we stated in Cole, the indictments of Wright and King for first-degree robbery remain valid. The State may still try them on those charges, or it may attempt to reindict them for another offense justified by the facts. As we explained in Cole, a conviction that has been held void does not raise double-jeopardy concerns, because double jeopardy attaches only when the court obtains jurisdiction. Cole, 842 So.2d at 609.”

902 So.2d at 742.

This statement was completely correct as to King, because King, like Cole, had pleaded guilty to the purportedly lesser-included offense of second-degree robbery with the result that, because the trial court never obtained jurisdiction over that charge, the original indictment charging first-degree robbery remained valid. As the Court of Criminal Appeals explained in Hammond v. State, 665 So.2d 970, 974 (Ala.Crim.App.1995):

“The original capital murder-robbery indictment in this case was a valid indictment. In carrying out the plea agreement, the state attempted to amend the indictment by adding a separate count charging ‘solicitation to distribute a controlled substance,’ Ala.Code 1975, § 13A-12-202. The amendment purporting to add this charge was void. An indictment may be amended by order of the court with the consent of the defendant in all cases, except to change the offense or to charge new offenses not contemplated by the original indictment. Ross v. State, 529 So.2d 1074 (Ala.Crim.App.1988); Ala. R. Cr. P. 13.5. In this case, the added charge is a substantial change from the indictment returned by the grand jury and charges a new offense not included in the original charge. Thus, all proceedings stemming from the amendment of the indictment had no legal effect and were void.”

(Emphasis added.)

Wright, having been convicted after a trial, represents a different situation. Unlike the jury instructions in Bradley’s case, however, the jury instruction in Wright’s case did not require the jury to determine Wright’s guilt as to the charge of robbery in the first degree before proceeding to consider the charge of robbery in the second degree; rather, the jury instruction simply made both charges equally available to the jury, without requiring disposition of one as a precondition to addressing the other. Wright v. State, 902 So.2d at 723-25. Also, Wright himself led the trial judge into the error of believing that robbery in the second degree was a lesser-included offense of robbery in the first degree under the allegations of the indictment charging robbery in the first degree and therefore persuaded the trial judge to give Wright’s requested jury charge to the effect that the jury could find Wright guilty of robbery in the second degree if the evidence established, among other things, that Wright was aided in the robbery by another person who was actually present. 902 So.2d at 724.

The procedural circumstances of Bradley’s case are such that, as explained above, he was expressly acquitted of the offense of robbery in the first degree. Under the broader holding of Green, however, Wright, whether or not impliedly acquitted of robbery in the first degree, was “in direct peril of being convicted and punished” for that charge because the jury “was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so.” Green, 355 U.S. at 190-91, 78 S.Ct. 221. Consequently, under the holding of Green, Wright’s “jeopardy for [first-degree robbery] came to an end when the jury was discharged so that he could not be retried for that offense.” Green, 355 U.S. at 191, 78 S.Ct. 221. The conclusion expressed by the Court of Criminal Appeals in Wright v. State, supra, that, “[o]n remand, while the State cannot retry Wright on a robbery-in-the-first-degree charge, it can reindict him on a charge of robbery-in-the-second-degree charge,” 902 So.2d at 733, would seem to be in accord with the holding of Green although it does not cite Green.

The holding of Green was never advanced by the parties to this Court during our certiorari review of the decision of the Court of Criminal Appeals, and it is likely that this Court was influenced in its statement concerning the scope of a retrial of Wright’s case by its recognition that the doctrine of invited error might well preclude Wright from asserting a double-jeopardy bar. As a general proposition, a defendant may not assume inconsistent positions in the trial court and the appellate court and will not be permitted to allege as error an action that was a natural consequence of his own actions. Melson v. State, 775 So.2d 857, 874 (Ala.Crim.App. 1999), affd, 775 So.2d 904 (Ala.2000). Although invited error does not serve to prevent recognition of a jurisdictional impediment, it may serve to deprive a defendant of a defense of double jeopardy. See Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). Nonetheless, under our holding today, a defendant who proceeds to the conclusion of a criminal trial in which the jury, under instructions paralleling those given at Bradley’s trial, expressly finds the defendant not guilty of the offense charged in the indictment, but finds him guilty of an offense not contemplated by the indictment, resulting in a void conviction, may not be retried for the charged' offense of which he has been acquitted.

The State argues, alternatively, that Bradley invited the error associated with giving the jury instruction on assault in the second degree,

“by requesting an erroneous jury instruction on assault in the third degree. After his request, the State asked the trial court to charge the jury on assault in the second degree under 13A-6-21(a)(2). Bradley consented to the requested second-degree assault instruction. While one cannot consent to lack of subject-matter jurisdiction or invite a jurisdictional error, see Flannigan v. Jordan, 871 So.2d 767, 768 (Ala.2003), a defendant, can, by his actions, waive his right against double jeopardy. See Jef-fers v. United States, 432 U.S. 137, 153— 54 (1977), overruled on other ground by Jeffers v. Chandler, 253 F.3d 827 (5th Cir.2001).[]”

(State’s brief, p. 14.)

The State also cites Phillips v. State, 527 So.2d 154, 156 (Ala.1988), for the proposition that “[u]nder the doctrine of invited error, a defendant cannot by his own voluntary conduct invite error and then seek to profit thereby,” and Tuscaloosa County v. Jim Thomas Forestry Consultants, Inc., 613 So.2d 322 (1992), and Phillips v. Anesthesia Services, P.C., 565 So.2d 127 (Ala. 1990), for the proposition that a defendant cannot claim error based on a jury instruction requested by the defendant.

The charge-conference discussions among the trial judge, counsel for Bradley, and counsel for the State that gave rise to the decision by the trial judge to consider second-degree and third-degree assault lesser-included offenses under the indictment charging robbery in the first degree and to charge the jury accordingly, were as follows: The trial judge asked Bradley’s lawyer what lesser-included offenses he was asking that the jury be charged as to, with respect to the offenses of attempted murder and robbery in the first degree. As to the robbery charge, Bradley’s lawyer suggested “assault third, reckless endangerment, and menacing.” When the trial judge similarly asked the State about lesser-included offenses, the assistant district attorney suggested assault in the second degree, but, when the judge explained that he was focusing at that point just on the attempted-murder indictment, the assistant district attorney corrected his suggestion by stating: “Actually that was on the robbery, I suppose.” When the trial judge subsequently returned the discussion to a consideration of appropriate lesser-included offenses under the indictment charging robbery in the first degree, counsel for the State stated: “I think assault second degree could be....” At that point the trial judge interrupted to inquire about the applicability of robbery in the third degree as a lesser-included offense and counsel for the State acknowledged that, although third-degree robbery could be a lesser-included offense of first-degree robbery under certain scenarios, it was not available under the evidence presented because in this case there was “the use of a gun, ... a deadly weapon.” The trial judge was eventually persuaded not to charge the jury on robbery in the third degree as a lesser-included offense to robbery in the first degree.

The trial judge then returned to a consideration of assault in the third degree as a lesser-included offense of the first-degree-robbery charge. Noting that the defendant had proposed that the jury be charged on that lesser-included offense, the court asked the assistant district attorney: “Before I reach what the Defense requests, does the State feel that the jury should be charged on any other possible lesser-included offenses in the robbery-first indictment?” Counsel for the State advised, “[N]o sir, we do not request any lesser-included offenses.” The court and counsel then turned their attention to the charge requested by the defense on assault in the third degree, and when the trial judge asked the assistant district attorney if he thought that offense applied and received a negative response, he asked “why?” The assistant district attorney responded: “[Bjecause assault third requires either an assault without the use of a weapon, or assault with a weapon through criminal negligence.” This analysis implicated the elements of assault in the third degree, which is defined by statute:

“(a) A person commits the crime of assault in the third degree if:
“(1) With intent to cause physical injury to another person, he causes physical injury to any person; or
“(2) He recklessly causes physical injury to another person; or
“(3) With criminal negligence he causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
“(4) With intent to prevent a peace officer from performing a lawful duty, he causes physical injury to any person.”

Ala.Code 1975, § 13A-6-22.

The assistant district attorney was contrasting those elements with the particular prong of second-degree assault he subsequently stated was applicable: “A person commits the crime of assault in the second degree if the person ... [w]ith intent to cause physical injury to another person, ... causes physical injury to any person by means of a deadly weapon or dangerous instrument.” § 13A-6-21(a)(2).

Counsel for the State went on to explain that under the evidence Bradley could not be guilty of third-degree assault under § 13A-6-22(a)(l) because “the listed victim in the robbery case was assaulted with a weapon, the clip of the gun”; he also explained that under the evidence Bradley could not be guilty of assault in the third degree under § 13A-6-22(a)(2) or (3) because he acted neither recklessly nor with criminal negligence; Bradley’s assault on the victim, the assistant district attorney insisted, was undisputably intentional.

It is to be noted that counsel for the State did not argue that assault in the third degree was not a lesser-ineluded offense available under the averments of the indictment; he argued only that the evidence contradicted all of the factual scenarios for assault in the third degree spelled out by § 13A-6-22. Bradley’s lawyer argued that the jury could find the facts to be such that third-degree assault would be available, because the evidence as to how the victim was injured during his scuffle with Bradley was not conclusive and the victim “at best, was injured by a clip from a gun,” which would not qualify as a physical injury “by means of a deadly weapon or a dangerous instrument” under § 13A — 6—21 (a) (2); further, Bradley’s attorney argued that the jury could conclude that the injury to the victim was recklessly caused. At the end of these discussions the trial judge expressed the belief that under the evidence assault in the third degree could be a lesser offense included in the charge of robbery in the first degree. The assistant district attorney then expressed the view that if ■ an assault charge was going to be given, a charge on assault in the second degree would better fit the circumstances, although he reiterated that the State was not, in the first instance, requesting a charge on any lesser-included offenses. Nonetheless, he argued, assault in the second degree would be the more appropriate lesser-ineluded offense “because assault second degree instructs the jury about an assault using a deadly weapon or dangerous instrument.” Being thus directed to charge on assault in the second degree under § 13A-6-21(a)(2), the trial judge asked the assistant district attorney: “[D]o you contend that applies” to which the assistant district attorney responded, “[Y]es, sir.” When the trial judge again stated that he planned to charge on third-degree assault, he asked if the State was still requesting a charge on second-degree assault and received an affirmative response, with the clarifying explanation that the State was actually asking that a charge on second-degree assault “be given in lieu of the assault third degree instruction because of the presence of a deadly weapon or dangerous instrument during the assault” and the inapplicability under the evidence of “any of the prongs of assault third.”

In the end, the trial judge announced that he was going to charge the jury on third-degree assault as a lesser-ineluded offense, but only under § 13A-6-22(a)(l), and he confirmed that under those circumstances the State requested that the jury be charged on second-degree assault under § 13A-6-21(a)(2). Asked if he had “a comment about that,” Bradley’s counsel stated that he thought “that would be a jury question,” with the instructions proposed by the trial court giving the jury “a choice between second and third, then they have to decide whether the injury was caused by an instrument, [and] if there was any requisite intent.”

Given the particular evolution of the discussions among the court and counsel, we cannot agree with the State that the positions taken by Bradley resulted in invited error sufficient to constitute a waiver by Bradley of the protection afforded by the Double Jeopardy Clause. Although our decision in Ex parte Cole, supra, was issued on March 15, 2002, neither the implications of Cole nor the availability of charges on lesser-included offenses to robbery in the first degree were raised by either the State or Bradley; each simply argued whether the elements of third-degree assault and second-degree assault were proven under the evidence presented, rather than alerting the trial judge to the possibility that both degrees of assault under discussion required an element, in the form of physical injury, not contemplated by robbery in the first degree as charged under § 13A-8^fl(a)(l).

We cannot say that Bradley’s attorney was in error when he argued that under the evidence the jury could conclude that the physical injury to the victim was not caused by a deadly weapon or a dangerous instrument. The victim testified that the injury to his head was inflicted when he and his brother were wrestling with Bradley at a point when Bradley had his pistol in one hand and the ammunition clip to it in his other hand and “used the clip to hit [the victim’s] head.” The State’s argument in that regard was that because third-degree assault required “an assault without the use of a weapon” and because the victim “was assaulted with a weapon, the clip of a gun,” second-degree assault “would fit the circumstances better,” i.e., the physical injury was caused by means of a deadly weapon or dangerous instrument. Under the circumstances shown, however, it would be up to the jury to determine whether the pistol clip, held by Bradley in one hand separately from the pistol he was holding in his other hand, would qualify as a deadly weapon or dangerous instrument. Section 13A-l-2(5) and (7) give the following definitions for those terms:

“(5) Dangerous Instrument. Any instrument, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is highly capable of causing death or serious physical injury. The term includes a ‘vehicle,’ as that term is defined in subdivision (15).”
“(7) Deadly Weapon. A firearm or anything manifestly designed, made, or adapted for the purposes of inflicting death or serious physical injury. The term includes, but is not limited to, a pistol, rifle, or shotgun; or a switchblade knife, gravity knife, stiletto, sword, or dagger; or any billy, blackjack, bludgeon, or metal knuckles.”

(Emphasis added.)

Consequently, the error into which the trial court was led — of understanding the assault charges to be potential lesser-included offenses to the offense of first-degree robbery charged in the indictment, depending only on the view taken of the evidence — was “invited” equally by both sides; Bradley was not “solely responsible” for it, to use the language of Jejfers v. United States, supra. Although the State is correct that Bradley “prompted” the discussions of the two degrees of assault as lesser-included offenses to the charged offense of first-degree robbery, and the State clearly indicated that it was not, on its own initiative, requesting any instructions on assault as a lesser-included offense, the State and Bradley erred equally in assuming, without analyzing, that second-degree assault and third-degree assault were contemplated by the indictment charging first-degree robbery and arguing to the court only whether the evidence supported any of the alternative factual scenarios spelled out by §§ 13A-6-21 and -22, respectively. The position taken by Bradley was not invited error of such magnitude as to constitute a waiver by him of the double-jeopardy defense spotted by the Court of Criminal Appeals.

For the reasons explained above, we affirm the decision of the Court of Criminal Appeals that “the jury’s verdict finding Bradley guilty of second-degree assault effectively acquitted Bradley of first-degree robbery as charged in the indictment; thus, Bradley cannot be retried for robbery in the first degree.”

AFFIRMED.

NABERS, C.J., and SEE, BOLIN, and PARKER, JJ., concur.

LYONS, WOODALL, STUART, and SMITH, JJ., concur in the result.

STUART, Justice

(concurring in the result).

I agree with the majority that, in light of the sole issue presented by the State for certiorari review and applying the law as it stands today to the facts of this case, the judgment of the Court of Criminal Appeals holding that Bradley cannot be retried for first-degree robbery is due to be affirmed.

Today’s holding is a consequence of this Court’s holdings in Ex parte Cole, 842 So.2d 605 (Ala.2002), Wright v. State, 902 So.2d 738 (Ala.2004), and their progeny. I adhere to my writings in Wright and Childers v. State, 899 So.2d 1025 (Ala.2004)(plurality opinion), maintaining that this Court has unnecessarily extended Cole and that, if the evidence before the trial court supports a lesser offense, then the indictment is necessarily amended by construction to encompass the lesser offense. This issue, however, was not presented to this Court, and this Court did not have an opportunity to revisit it.

      . We do not understand the State to actually be suggesting that an opinion by the United States Court of Appeals for the Fifth Circuit could "overrule” an opinion of the United States Supreme Court; moreover, the cited Fifth Circuit case, Jeffers v. Chandler, simply represents the disposition by the Fifth Circuit of the latest of the numerous collateral attacks filed by Jeffers, the partially successful certio-rari petitioner in Jeffers v. United States, 24 years before. In that case, the Supreme Court held that Jeffers, who had successfully opposed a government motion to consolidate two indictments against him for trial, "was solely responsible for the successive prosecutions” that ensued. As a result, the successive prosecutions did not offend the Double Jeopardy Clause. 432 U.S. at 154, 97 S.Ct. 2207. The Court noted in a footnote that "[t]he considerations relating to the propriety of a second trial would obviously be much different if any action by the Government contributed to the separate prosecutions on the lesser and greater charges. No hint of that is present in the case before us, since the Government affirmatively sought trial on the two indictments together.” 432 U.S. at 152 n. 20, 97 S.Ct. 2207.