State prosecutors cannot obtain a sentence of life in prison without parole against someone who rapes a child unless they are seeking the death penalty, the Georgia Supreme Court ruled Monday.

In a 4-3 opinion, the court said a Grady County judge lacked the authority to sentence Rodolfo Lopez Velazquez to life without parole for the June 2005 rape of a 7-year-old girl. Velazquez, who must now be resentenced, faces a sentence of life in prison with the possibility of parole.

Prosecutors told the court that they hadn't sought the death penalty in the case because were barred from doing so in a case involving rape when the victim is not murdered.

But Justice Harris Hines, writing for the majority, said that the U.S. Supreme Court in 1977 ruled the death penalty unconstitutional only for the rape of an adult woman. Neither the U.S. Supreme Court nor the Georgia Supreme Court "has yet addressed whether the death penalty is unconstitutionally disproportionate for the crime of raping a child," Hines wrote.

The U.S. Supreme Court could decide the issue this year. In January, it agreed to hear an appeal of a Louisiana man who was sentenced to death in 2004 for raping an 8-year-old girl.

In Georgia, if the death penalty is sought, the defendant can be sentenced to life with parole, life without parole or death. Even though the Legislature in 1999 passed an amendment allowing life-without-parole for the crime of rape, the state Supreme Court's own precedent in a 1996 decision handed does not allow it —unless death is sought by the prosecution, Hines wrote.

Justice George Carley, joined by Justices Carol Hunstein and Harold Melton, dissented. "If the majority were correct, the Legislature accomplished nothing" by amending the law in 1999, Carley said.