Opinion
No. 88-3144.
March 7, 1990.
Appeal from the Circuit Court, Duval County, R. Hudson Olliff, J.
Michael E. Allen, Public Defender, and Lawrence M. Korn, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and William A. Hatch, Asst. Atty. Gen., Tallahassee, for appellee.
Ernest Thomas Bell appeals a judgment and sentence adjudicating him guilty of murder in the third degree with a firearm and sentencing him to 12 years' incarceration with a 3-year mandatory minimum. The state concedes that our decision in Webb v. State, 410 So.2d 944 (Fla. 1st DCA 1982), supports Bell's position that the lower court erred in reclassifying his conviction at sentencing from a second-degree felony to a first-degree felony. We adhere to our decision in Webb and find that the reclassification in this case was improper because use of a firearm was an essential element of the third degree murder offense of which Bell was convicted. Webb v. State, 410 So.2d at 945; § 775.087(1), Florida Statutes (1987). Thus, we vacate the sentence imposed in this case and remand the case for resentencing.
We find Bell's arguments that the court erred in allowing the prosecutor to violate the motion in limine and erred in its re-instruction to the jury to be without merit, and affirm those points without discussion.
Affirmed in part, reversed in part, and remanded.
SHIVERS, C.J., and JOANOS and ZEHMER, JJ., concur.