Opinion
No. 88-02011.
June 9, 1989.
Appeal from the Circuit Court for Polk County; Joe R. Young, Jr., Judge.
James Marion Moorman, Public Defender, and Megan Olson, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Donna A. Provonsha, Asst. Atty. Gen., Tampa, for appellee.
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.