ON RETURN TO REMAND

On original submission, we reviewed the circuit court’s denial of Eddie C. Eiland’s Rule 32, Ala.R.Crim.P., petition and held that that court had erred in dismissing the assertion in Eiland’s petition that the trial court had been without jurisdiction to adjudge him guilty of second degree assault because the offense to which he pleaded guilty was not included in the indictment charging him with attempted first degree rape (rape by forcible compulsion, see Ala.Code 1975, § 13A-6-61(a)(1)). Eiland v. State, 668 So.2d 147 (Ala.Cr.App. 1995). We remanded for the circuit court to determine whether, under the particular facts of this case, second degree assault is a lesser included offense of attempted first degree rape.

In its return, the circuit court granted Eiland a new trial because the prosecutor asserted that the victim’s testimony was essential to show that the offense to which Eiland had pleaded is a lesser included offense of the indicted offense, but that the victim could not be found.

Accordingly, this appeal is dismissed.

APPEAL DISMISSED.