dissenting.
I respectfully dissent since I do not agree with the majority that the instant prosecution violates Henderson’s constitutional protection *646against double jeopardy. The Forsyth County ordinance regarding disorderly conduct provides, in part, that it is unlawful for any person to engage in conduct which is likely to provoke or incite an immediate breach of the peace. OCGA § 16-5-23 (a), which outlines the offense of simple battery, provides that one “commits the offense of simple battery when he either (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” OCGA § 16-7-23, which defines criminal damage to property in the second degree, provides that a person commits the offense when he intentionally or recklessly damages the property of another person.
“In State v. Burroughs, 246 Ga. 393, 394 (271 SE2d 629) (1980), the court held that a person convicted of a greater offense cannot thereafter be convicted in a separate trial for the lesser included offense if both convictions are based on proof of the same facts, and that the reverse is also true, i.e., a conviction of a lesser included offense bars subsequent trial on the greater offense.” Bailey v. State, 184 Ga. App. 890, 892 (2) (363 SE2d 172) (1987). Unlike Burroughs, in the instant* case, it was not necessary to the charges for criminal damage to property and simple battery that the State prove the entirety of the charge for disorderly conduct or vice versa. It is apparent from the definitions of the crimes that they are not the same as a matter of law.
Furthermore, the incidents were not the same as a matter of fact. The March 16 incident report shows that the charge for disorderly conduct was based on conduct other than that of damaging the vehicle by striking the vehicle with a stick and of striking Ms. DeLong. Prior to committing those crimes, Henderson was involved in a domestic disturbance with Ms. Akins, he had broken the window on the door to her residence and been warned by the police. Subsequent to this warning, according to the report, there was the sound of a disturbance and of glass breaking. The acts on which the disorderly conduct charge were based were those which involved disturbance of the peace, i.e., those acts which preceded the acts forming the basis for the simple battery and criminal damage to property charges. In other words, it was Henderson’s failure to refrain from creating a disturbance, and not the damaging of property or the battery, which formed the basis for the disorderly conduct charge. By definition, the disorderly conduct charge involved those acts which were likely to incite an immediate breach of the peace, whereas the charges of criminal damage to property and simple battery were based on actions which occurred after Henderson breached the peace. Contrary to the majority’s representations, the district attorney’s description of the events of the evening are not inconsistent with this conclusion.
Because I find that the crimes here lack factual commonality and *647were not the same as a matter of law, I think the trial court properly denied Henderson’s plea.
Decided December 4, 1992. J. Russell Jackson, for appellant. Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee. I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong and Judge Cooper join in this dissent.