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544 So. 2d 332

544 So.2d 332

14 Fla.L.Weekly 1403

Eldridge v. State

District Court of Appeal of Florida · decided 1989-06-09

Relies on 394 So. 2d 570 - Bell v. State · Thompson v. State

Decided 1989-06-09

PER CURIAM.

¶1Appellant 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).

¶2That 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....”

¶3As 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).

¶4Therefore, 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.
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