concurring in result.
I agree that the trial court properly denied Moore’s motion to dismiss but write separately to express a rationale other than that *1210espoused in the majority opinion. While I do not necessarily disagree with the majority’s discussion regarding lesser-ineluded offenses and the application of double jeopardy principles in this case, it is my view that the sole issue before us in this appeal is whether Moore may be retried for Attempted Criminal Deviate Conduct following a reversal of his conviction for that offense, even though the jury has convicted him of Criminal Confinement.
Although the majority notes that both this court and our supreme court have held that double jeopardy principles prohibit a conviction and sentence for both a greater offense and its factually included lesser offense, see op. at 1207-08, Moore has not yet been convicted or sentenced for Attempted Criminal Deviate Conduct in light of our reversal of that offense. As the United States Supreme Court recognized in Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984), double jeopardy protects against a retrial “only if there has been some event, such as an acquittal, that terminates the original jeopardy.” When it comes to a trial error, a reversal says nothing about the innocence or guilt of the defendant. Henderson v. State, 686 N.E.2d 911, 915 (Ind.Ct.App.1997). Moreover, this court observed in Moore’s second appeal that “once a court has vacated the conviction of an accused to grant a new trial, that person is placed in a position as if he had never been tried upon that charge at all.” Moore v. State, 653 N.E.2d 1010, 1019 (Ind.Ct.App.1995), trans. denied; see also State v. Klinger, 698 N.E.2d 1199 (Ind.Ct.App.1998) (retrial on greater charge following hung jury on that charge is permissible under theory of continuing jeopardy even though defendant was convicted of lesser-ineluded offense).
In my view, Moore may be reprosecuted for Attempted Criminal Deviate Conduct without running afoul of double jeopardy prohibitions, and such a result is dictated by our decision in Redman v. State, 679 N.E.2d 927 (Ind.Ct.App.1997), trans. denied. In Redman, the defendant was convicted of attempted murder and aggravated battery, where the aggravated battery offense was found to be a lesser-ineluded offense of attempted murder. Id. at 931. On appeal, this court reversed the defendant’s conviction for attempted murder based on an improper instruction, but affirmed the conviction for aggravated battery. Id. at 927. Following the reversal, Redman moved to dismiss the attempted murder charge, claiming that double jeopardy principles barred a retrial. Id. at 928. We disagreed and observed as follows:
[N]o double jeopardy interest of Redman is offended by the retrial contemplated here. Therefore, this also constitutes an exception to the principle that a previous conviction on an included offense will bar, because of double jeopardy, a subsequent retrial on the greater offense. The conviction on the included offense here does not carry with it the implied acquittal of the greater offense which a simple conviction on the included offense usually does. In fact, Redman was convicted of the greater offense. It would be a miscarriage of justice to allow Redman to successfully appeal his attempted murder conviction and then forbid the State from pursuing a new trial simply because, inherent in the conviction for attempted battery, the State had succeeded in proving some of the elements of the attempted murder.
Id. at 931 (emphasis in original).
As in Redman, the double jeopardy clause does not bar the State from retrying Moore on Attempted Criminal Deviate' Conduct even though the jury convicted him of Criminal Confinement. Only if Moore is convicted of Attempted Criminal Deviate Conduct might the question arise in a subsequent appeal as to whether the conviction and sentence for both may stand. As a result, I vote to affirm the trial court’s denial of Moore’s motion to dismiss and would conclude that retrying Moore on the offense of Attempted Criminal Deviate Conduct is not a violation of double jeopardy.