Eldridge v. State

544 So. 2d 332, 14 Fla. L. Weekly 1403, 1989 Fla. App. LEXIS 3261, 1989 WL 61112

Opinion

PER CURIAM.

Appellant contends that it was error to reclassify his conviction of aggravated battery with a firearm (a second-degree felony) to a first-degree felony pursuant to section 775.087(1), Florida Statutes (1987).

That statute provides for such reclassification when a weapon is used during the commission of a felony, “except a felony in which the use of a weapon or firearm is an essential element....”

As the state admits, this case falls in that exception and it was error to so enhance the judgment. See Thompson v. State, 438 So.2d 1005 (Fla. 2d DCA 1983), and Bell v. State, 394 So.2d 570 (Fla. 5th DCA 1981).

Therefore, we reverse and remand for correction of the judgment to reflect that appellant was convicted of a second-degree felony and for appropriate resentencing.

SCHOONOVER, A.C.J., HALL and ALTENBERND, JJ., concur.