concurring in part and dissenting in part
While I agree that Miller’s three convictions for criminal recklessness should be reversed, I must depart from that portion of the decision directing the trial court to enter convictions on the lesser-included offense of attempted battery with a deadly weapon.
Our Supreme Court established long ago that criminal recklessness is not an inherently lesser-included offense of attempted murder because the crime of attempted murder requires that a defendant acted with specific intent, and there is no element of specific intent in the offense of recklessness. Humes v. State, 426 N.E.2d 379, 383 (Ind.1981). Furthermore, as the lead opinion notes, criminal recklessness cannot be a factually included lesser offense of attempted murder in the present case because the charging information does not indicate that Miller disregarded the consequences of his actions. To the contrary, the charging information specifi*357cally states that Miller fired a handgun “with the intent to kill.” (R. 29). See Shoup v. State, 570 N.E.2d 1298 (Ind.Ct.App.1991).
It is well-established that due process requires a defendant be given notice of the crime or crimes with which he is charged so that he can prepare his defense. Lewis v. State, 418 N.E.2d 1069, 1071 (Ind.Ct. App.1980). Absent sufficient notice that a particular offense is charged, a defendant cannot be convicted of that crime. Id. Here, the prosecutor charged Miller with attempted murder. The charging information contained no language indicating that Miller had been reckless. Thus, Miller was not put on notice that he might possibly be found guilty of engaging in reckless criminal activity.
Indiana case law that addresses variances in a charging information and proof adduced at trial utilizes a legal analysis comparable to the one presented in this case. When a charging information differs from the proof at trial, our courts examine whether the defendant was misled by the variance in preparation and maintenance of his defense, whether he was prejudiced thereby, and whether he will be protected in the future against double jeopardy. Mitchem v. State, 685 N.E.2d 671, 677 (Ind.1997). Here, the State’s failure to either charge Miller with criminal recklessness or to include language alleging recklessness in the charging information prevented Miller from presenting a defense to any allegation of recklessness. Although the evidence presented at trial establishes that the prosecutor might have charged Miller with several different crimes, the prosecutor chose not to do so. Neither this Court nor the trial court may go back in an attempt to “fix” what the prosecutor chose not to do. The trial court found insufficient evidence to support the charge of attempted murder and, evidently, any of the inherently included lesser-offenses of attempted murder.
The trial court determined that Miller committed the crime of criminal recklessness when he shot at the police officers. This Court has previously held that “[A] defendant convicted of a lesser and included offense has been impliedly acquitted of the greater offense.” Anderson v. State, 674 N.E.2d 184, 188 (Ind.Ct.App.1996) (quoting Bennett v. State, 174 IndApp. 663, 369 N.E.2d 949 (1977)). Thus, in convicting Miller of criminal recklessness, the trial court impliedly acquitted Miller of attempted murder. The fact that criminal recklessness is not a lesser-included offense of attempted murder has no effect on this portion of the analysis. This is because in impliedly acquitting Miller of attempted murder, the trial court determined that the evidence was insufficient to find as a matter of law that Miller knowingly or intentionally fired the handgun at the officers.
The present case is comparable to the situation where an appellate court has reversed a conviction due to the insufficiency of the evidence. In such an instance, the rule against placing a defendant in double jeopardy prevents the appellate court from remanding for a retrial on the same charge. Redman v. State, 679 N.E.2d 927, 928-929 (Ind.Ct.App.1997). The basis of this rule is that reversal for insufficiency of the evidence establishes that the government has failed to prove its case. Warner v. State, 579 N.E.2d 1307, 1311 (Ind.1991). In the present case, the trial court, like a reviewing court on appeal, found that the government failed to prove each element of the attempted murder charges. Therefore, because the trial court found that the State failed to prove that Miller acted knowingly or intentionally in firing the handgun, the State is precluded by principles of double jeopardy from retrying Miller on any lesser-included offense requiring proof of these elements.
The three charges as listed in the information in the present case are identical except for the names of the police officers. Each states that:
DAYON M. MILLER, on or about APRIL 30, 1998, did attempt to commit *358the crime of Murder, which is to knowingly or intentionally kill another human being, that is: [POLICE OFFICER], by engaging in conduct, that is: firing a handgun at and toward the person of [POLICE OFFICER], which conduct constituted a substantial step toward the commission of said crime of Murder[.]
(R. 29).
The subsequent convictions for criminal recklessness indicate that the trial court found Miller did in fact fire a handgun at the police officers. However, the convictions for criminal recklessness further indicate that the trial court found the State had failed to prove that Miller acted knowingly or intentionally when he fired the handgun at the police officers. Despite this factual finding, the lead opinion instructs the trial court to enter convictions on lesser-included offenses that, by definition, include knowingly or intentionally as an element.
Although I agree that we may remand to the trial court to enter a conviction on a lesser-included offense where the evidence supports an assurance that the fact-finder would have convicted the defendant of that lesser-included offense, I do not agree that under the facts of this case we can direct the trial court to change its factual finding. The trial court has already determined that Miller acted recklessly, and has therefore impliedly acquitted Miller of any crime requiring proof that he acted knowingly or intentionally when he fired the handgun at the officers. To now instruct the trial court to enter judgment on a crime requiring specific intent violates all concepts of fundamental fairness and further violates Miller’s guarantee against double jeopardy.7
Based on the foregoing, I would affirm with regard to Miller’s convictions of resisting law enforcement and reverse and vacate Miller’s three convictions of criminal recklessness.
. Although I am constrained by double jeopardy principles to instruct the trial court to vacate the judgments for criminal recklessness, I do not believe double jeopardy principles preclude the prosecutor from filing new charges against Miller consistent with this opinion. See Redman v. State, 679 N.E.2d 927, 928 (Ind.Ct.App.1997) (stating that, “[Ojnce- 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[,]" and explaining that the basis for this rule is that trial error does not indicate anything about the guilt or innocence of the defendant) (quoting Moore v. State, 653 N.E.2d 1010, 1019 (Ind.Ct.App.1995)).