         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs December 2, 2003

          THOMAS POSTON STUDDARD v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Dyer County
                              No. C02-61    Lee Moore, Judge



                   No. W2003-01210-CCA-R3-PC - Filed February 27, 2004


The petitioner was indicted on three counts of rape of a child, a Class A felony, and pled guilty to
one count of incest, a Class C felony, in exchange for an eight-year sentence as a Range II, multiple
offender. Following his conviction, he filed a timely motion for reduction of sentence pursuant to
Rule 35 of the Tennessee Rules of Criminal Procedure. After conducting a hearing, the trial court
denied the motion, and the petitioner appealed to this court. We agree that the petitioner should be
allowed to withdraw his plea of guilty, although for a different reason than he argues. Incest, to
which he pled guilty, is not a lesser-included offense of rape of a child, and the record on appeal does
not reflect that the indictment was amended to charge incest. Accordingly, we vacate the judgment
of conviction and remand this matter to the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                        Remanded

ALAN E. GLENN , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR ., and
ROBERT W. WEDEMEYER , JJ., joined.

Jim W. Horner, District Public Defender, and H. Tod Taylor, Assistant District Public Defender, for
the appellant, Thomas Poston Studdard.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and
C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

        The petitioner, Thomas Poston Studdard, was indicted by the Dyer County Grand Jury for
three counts of rape of a child, a Class A felony. Pursuant to his negotiated plea agreement, on
August 22, 2002, he pled guilty to one count of incest, a Class C felony, in exchange for an agreed
sentence of eight years as a Range II, multiple offender in the Department of Correction. On
December 20, 2002, the petitioner filed a pro se motion for correction or reduction of sentence,
pursuant to Tennessee Rule of Criminal Procedure 35, and alleged his plea agreement failed to
stipulate that his parole was contingent upon his completion of a mandatory sex offender program,
and his trial counsel had misinformed him of the actual time he would be required to serve by telling
him he would be eligible for parole in approximately fourteen months.

        Following the appointment of counsel, the petitioner filed an amended motion for reduction
of sentence on February 26, 2003, alleging, inter alia, that he did not learn until after his conviction
and incarceration that, before he could receive parole, he was required under Tennessee Code
Annotated section 40-35-503(c) to obtain certification from a psychiatrist or psychologist that to a
reasonable degree of medical certainty he would not commit further sexual assaults if released from
confinement. The petitioner asked that the trial court declare the certification requirement
unconstitutional as a violation of his equal protection rights and, in the interest of justice, reduce his
sentence to probation for the remainder of his eight-year term.

        It is not necessary that we consider the petitioner’s claim on its merits for, as we will explain,
we conclude that because he pled to an offense with which he was not charged, and the record on
appeal does not reflect that the charged offense, rape of a child, was amended to incest, to which he
pled guilty, his guilty plea must be set aside and the indictment charging him with rape of a child
reinstated.

        It is clear that rape and incest are separate offenses with different elements. In State v.
Beauregard, 32 S.W.3d 681, 683 (Tenn. 2000), our supreme court determined that principles of
double jeopardy do not preclude a defendant’s being convicted of both rape and incest based upon
a single act, for they are different offenses:

                A comparison of the statutory elements of rape and incest
                demonstrates that the elements are dissimilar. Rape, unlike incest,
                requires non-consensual sexual penetration accompanied by force or
                coercion; incest, unlike rape, requires that the victim be the natural
                child of the defendant, regardless of whether the victim consented.

       This case presents a posture similar to that of State v. Robert James Yoreck, III, No. M2001-
02448-CCA-R3-CD, 2003 WL 141051 (Tenn. Crim. App. Jan. 15, 2003), perm. to appeal granted
(Tenn. May 27, 2003), where the defendant had been indicted for rape and had pled guilty to
aggravated assault, receiving a sentence of nine years, which he claimed, on direct appeal, was
excessive. This court found that “plain error dictat[ed] the conviction be vacated and the case
remanded for further proceedings because aggravated assault is not a lesser included offense of
rape.” Id. at *1. Applying the holding of this court in State v. Adkisson, 899 S.W.2d 626, 638-39
(Tenn. Crim. App. 1994), we determined, as well, that plain error had occurred by the defendant’s
pleading guilty to a charge which was not a lesser-included offense to that for which he was indicted.
Additionally, we determined that a plea of guilty to such an offense violated the defendant’s Sixth
Amendment rights because he had not been given appropriate notice of the charge against him. Id.
at *2. Thus, the court in Yoreck reversed the conviction and remanded to the trial court for a new
trial or appropriate proceedings.

        Applying the holdings in Beauregard and Yoreck, we conclude that the petitioner’s plea of
guilty to incest cannot stand because he was not indicted for that offense, it is not a lesser-included
offense of rape of a child, for which he was indicted, and the record does not reflect that the
indictment was amended to charge incest. Accordingly, we vacate the judgment of conviction and
remand this matter to the trial court for appropriate proceedings.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE
