
    T.L.G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 94-1255.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 1995.
    James B. Gibson, Public Defender, and Daniel P. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Kristen L. Davenport, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

T.L.G. was charged with battery, but was found guilty of disorderly conduct because the circuit court mistakenly believed that the latter crime under section 877.03, Florida Statutes, was a lesser included offense of battery. D.L. v. State, 491 So.2d 1243 (Fla. 2d DCA 1986).

The state argues that, notwithstanding the court’s misunderstanding, the defense waived the error by failing to object to the disposition of the case. While the defense could have been more assertive in objecting when the trial court determined that disorderly conduct is a lesser included offense of battery, there was no waiver of the error. When asked by the court whether disorderly conduct was a lesser included offense, the defense responded that the standard criminal jury instructions did not include any lesser offenses of battery and that it was “not listed as a category one or a category two [lesser offense].” We find that the defense’s response to the court was sufficient to preserve the error. This was not a situation where the defense played a significant role in the erroneous ruling, failed to object to an erroneous jury instruction, or applied a strategy that might have inured to the defendant’s benefit. In Interest of E.W., 616 So.2d 1194 (Fla. 4th DCA 1993).

The order withholding adjudication and placing T.L.G. on community control is quashed.

ORDER QUASHED.

PETERSON and THOMPSON, JJ., concur.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring.

While I agree with the result reached by the majority, I would go further, if I could, and say that it is fundamental error to convict one of a crime with which he was not charged. See Rose v. State, 507 So.2d 630, 631 (Fla. 5th DCA 1987). But see Ray v. State, 403 So.2d 956 (Fla.1981). •  