
    Clinton SHEPHARD, Appellant, v. STATE of Florida, Appellee.
    No. 83-774.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Rehearing Denied Aug. 22, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Chief Judge.

The defendant, Shephard, was charged by information with battery upon a law enforcement officer. The information, in pertinent part, reads:

[The State Attorney] CHARGES that CLINTON SHEPHARD, on the 21st day of December, 1982 ... did, in violation of Florida Statutes 784.03 and 784.07, knowingly commit a battery upon a law enforcement officer, CALVIN LEE WACKER, a corrections officer for the Orange County Sheriff’s Department, and in the furtherance thereof, did actually and intentionally touch or strike CALVIN LEE WACKER, against the will of the said CALVIN LEE WACKER, while said officer was engaged in the lawful performance of his duties.

At the trial, there was evidence adduced that Shephard, while in custodial confinement, took a swing at Wacker and missed him. A brief scuffle ensued, resulting in a mild abrasion to Wacker. There was testimony that Wacker saw Shephard leap up and attempt to strike him. Assault is not a necessarily included offense of battery and, in this case, was not alleged so as to be a category two included offense under the Schedule in the Florida Standard Jury Instructions in Criminal Cases. Nevertheless, Shephard was convicted of assault on a law enforcement officer.

The defendant failed to make timely objection to the instructions by the court on assault as a lesser included offense. Therefore, we affirm on authority of Ray v. State, 403 So.2d 956 (Fla.1981), and Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983). Florida Rule of Criminal Procedure 3.390 provides:

(d) No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.

The appellant concedes that his record objection was made after the jury retired. The transcript indicates that the objection was in response to the trial court’s inquiry as to “any objections to the Court’s charge as read.” (Emphasis added.) This does not imply an opportunity afforded to record prior objections; rather, it is a routine question to inquire as to whether either party believes the trial judge has misread the settled instructions. Nothing in the record before this court shows that trial counsel was prevented by the trial judge from registering a timely objection. The burden is on the appellant to preserve his record. Wright v. Coca-Cola Bottling Co. of Miami, 256 So.2d 56 (Fla. 4th DCA 1971).

AFFIRMED.

FRANK D. UPCHURCH, Jr. J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

Statutory assault is not a necessarily included offense of statutory battery. Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980). Assault requires proof of “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Battery does not require proof of such an act or threat and well-founded fear, but instead requires proof of the unlawful touching or striking of another person.

In this case, Shephard was charged solely with battery and the information failed to allege any of the required elements of assault. However, the trial judge charged on, and Shephard was convicted of, assault, based upon the judge’s misapprehension that assault is a lesser included offense of battery. Instructing the jury on an offense erroneously thought to be a lesser included of the offense charged is reversible error, provided defense counsel timely objects. Ray v. State, 403 So.2d 956 (Fla.1981); Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983).

I think in this case the objection was timely made, although the record is not as clear as it could be. Defense counsel claimed he objected at the pretrial conference, but the court said it would allow counsel to make their objections later on the record. Immediately after the closing arguments the court gave its instructions and had the jury retire. It then asked counsel, “[N]ow, gentlemen, are there any objections to the Court’s charge as read?” Defense counsel objected to the assault charge and was overruled.

At a later hearing, the court said it often followed the practice of putting objections on the record later, although it did not recall defense counsel’s earlier objection at the instruction conference. However, the fact that the court asked counsel for their objections after the jury retired lends substance to defense counsel’s position. Based on similar facts, other courts have held objections made after the jury retires were timely, Boston v. State, 411 So.2d 1345 (Fla. 1st DCA), petition for review denied, 418 So.2d 1278 (Fla.1982), despite Florida Rule of Criminal Procedure 3.390(d).

I would reverse the judgment against Shephard on due process grounds. 
      
      . The dissent cites Boston v. State, 411 So.2d 1345 (Fla. 1st DCA), review denied, 418 So.2d 1278 (Fla.1982). There, the trial court, after the jury retired, allowed the defendant counsel to place on the record his previous objection to the court’s denial of a requested instruction.
     
      
      . § 784.011, Fla.Stat. (1983).
     
      
      . § 784.03, Fla.Stat. (1983).
     