
    Walter H. BROWN, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
    Supreme Court of Delaware.
    Submitted: Nov. 4, 1982.
    Decided: Nov. 24, 1982.
    Walter H. Brown, Jr., pro se, appellant.
    James B. Ropp, Deputy Atty. Gen., Wilmington, for appellee.
    Before HERRMANN, C.J., HORSEY and MOORE, JJ.
   PER CURIAM:

Defendant has appealed Superior Court’s denial of his Motion for Postconvietion Relief to correct his sentence; and the State has filed a Motion to Affirm the judgment below.

Defendant contends that he was convicted and sentenced for the offense of “Aggravated Rape”, which he asserts is not a crime under the Delaware Criminal Code. Defendant apparently bases this assertion on the Trial Judge’s use of the term “Aggravated Rape” instead of “Rape in the First Degree” in instructions to the jury.

Superior Court correctly denied defendant’s Motion for a corrected sentence. While the jury returned a verdict against defendant of conviction of Rape in the First Degree, a Class A felony, commonly referred to as “Aggravated Rape”, the Court reduced defendant’s judgment and sentence to Rape in the Second Degree, a Class B felony.

Although defendant was tried under indictment for Rape in the Second Degree, the State was permitted to introduce evidence of aggravating circumstances required for conviction of Rape in the First Degree. The jury was then erroneously instructed as to “Aggravated Rape”; and defendant was convicted of Rape in the First Degree.

On defendant’s Rule 34 Motion for Arrest of Judgment, Superior Court ruled that defendant could not be convicted of a Class A felony as the requisite aggravating circumstances were not alleged in the indictment. As stated, the Court then reduced defendant’s conviction to Rape in the Second Degree and sentenced defendant accordingly.

The issue raised by defendant’s Rule 35(a) Motion was mooted by the Court’s previous correction of his judgment and sentence.

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The State’s Motion to Affirm is granted and the judgment of Superior Court is affirmed.  