concurring specially.
Although I agree with the result reached by the majority, I write separately to clarify the facts and to explain what I believe to be the appropriate analysis for the ineffective assistance claim.
The record shows that Baker was alleged to have taken advantage of a young woman while she was incapacitated. Apparently, Baker admitted to viewing the victim’s breasts and genitals while the victim was unconscious. Police also suspected Baker of rape, and a rape kit test was performed on the victim. Before the DNA results were obtained, Baker was charged, by accusation, with two misdemeanor counts of sexual battery. After the State obtained the results of the DNA testing, Baker was indicted for rape, and the trial court entered an order of nolle prosequi on the prior accusation.
On June 11, 2003, before the indictment was returned, Baker filed a speedy trial demand under OCGA § 17-7-170. Thus the demand pertains only to the two misdemeanor charges. Baker was not timely tried for sexual battery, and he filed his motion in autrefois convict and plea of former jeopardy. Baker argued that he was entitled to acquittal as a matter of law under OCGA § 17-7-170 (b), which provides that if a defendant who has filed a demand is not tried within two terms, “[he] shall be absolutely discharged and acquitted of the offense charged.” Baker further argued that, if he was acquitted of the sexual battery charges, double jeopardy would bar his prosecution for rape.
Following a hearing, the trial court concluded that Baker’s failure to serve the judge with the demand precluded his acquittal under OCGA§ 17-7-170 (b). To the extent Baker’s demand for speedy trial was premised upon constitutional grounds, the trial court found *767that the delay, which was caused by difficulty in obtaining the DNA results, was unintentional and resulted in no prejudice to Baker.
In its opinion, the majority concludes that Baker’s former attorney was ineffective for failing to serve the demand on the trial court, but that Baker was not prejudiced by such failure. However, if we accept Baker’s argument as true — that he should have been acquitted by operation of law — it is disingenuous to say that he was not prejudiced. In my view, the problem stems from the fact the majority analyzes the prejudice issue solely from the constitutional standpoint; namely, whether Baker was prejudiced by the delay. In fact, Baker’s motion was largely predicated on statutory speedy trial grounds, under which he would be entitled to acquittal as a matter of law.
Nonetheless, I do agree that Baker is unable to demonstrate prejudice for another reason. It is undisputed that Baker’s speedy trial demand related solely to the two misdemeanor charges, on which the trial court entered an order of nolle prosequi. Such demand is effective only as to those charges in place at the time the demand is made.5 Thus, Baker’s speedy trial demand should have no bearing on the subsequent rape indictment, as he never filed a new demand.6
By arguing that the rape trial is barred by double j eopardy, Baker attempts to do indirectly that which he cannot do directly — invoke a prior speedy trial demand to bar his trial on a subsequent indictment involving new charges. I do not think this should be allowed. Moreover, I do not think Perkinson v. State7 requires this result.
As noted by the majority, Perkinson holds that “[f]or double jeopardy purposes, a lesser-included and a greater offense are the ‘same offense’ under the Fifth Amendment because the lesser offense requires no proof beyond that which is required for the conviction of the greater offense.”8 Under this reasoning, Baker argues that his “acquittal” for the lesser included offense of sexual battery should preclude his trial on the greater charge of rape.9
In Perkinson, however, the defendant was actually tried and convicted for felony murder. He was not acquitted as a matter of law *768by a procedural mechanism. And Perkinson recognizes that exceptions apply to the rule enunciated, one of which is “[a] defendant may be retried on the greater offense after a mistrial on that count or if that conviction is reversed on appeal.”10 That exception seems analogous to the case before us because both involve termination of the prosecution on grounds other than the substantive merits. As our Supreme Court recently reiterated,
Decided November 18, 2004 Reconsideration denied December 6, 2004 Elizabeth M. Grant, Vicki E. Carter, for appellant. Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.[t]he primary purpose underlying the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where the prosecution has, at the initial trial, produced insufficient evidence to sustain a conviction. The general rule is that the retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency.11
Here, the purpose of double jeopardy is not served by permitting Baker to boot-strap his speedy trial demand on misdemeanor sexual battery charges to a subsequent rape indictment. That is particularly true given that the State lacked sufficient information to indict Baker for rape at the time he was accused of sexual battery.12 For these reasons, I believe Baker’s argument lacks merit, which precludes him from establishing that he was prejudiced.
See Banks v. State, 251 Ga. App. 421, 423-424 (1) (554 SE2d 500) (2001); State v. Daniels, 206 Ga. App. 443, 445 (2) (425 SE2d 366) (1992).
See Banks, supra.
273 Ga. 491 (542 SE2d 92) (2001).
Id. at 494 (1).
Although the misdemeanor charges were dismissed by order of nolle prosequi, a defendant still may claim the benefits of a demand made pursuant to OCGA § 17-7-170 as to those charges. See Bond v. State, 212 Ga. App. 608, 609 (442 SE2d 482) (1994). Thus, having entered a speedy trial demand as to the misdemeanor sexual battery charges, Baker cannot now be tried on those offenses.
Perkinson, supra at 495, n. 2 (citing Keener v. State, 238 Ga. 7 (230 SE2d 846) (1976)).
(Citation omitted.) Nance v. State, 274 Ga. 311 (553 SE2d 794) (2001).
See OCGA § 16-1-7 (b) (“If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.”).