636 SO2D 586 - Daniels v. State

W. SHARP, Judge.

¶1Daniels appeals from his judgments and sentences for third degree felony murder with a firearm1 and aggravated assault with a firearm.2 He argues the trial court erred by reclassifying3 his murder conviction from a second degree felony to a first degree felony because the use of a weapon was an essential element of the predicate felony, aggravated assault with a firearm.

¶2The state concedes error. See Gonzalez v. State, 585 So.2d 932 (Fla.1991); Pinkerton v. State, 534 So.2d 425 (Fla. 5th DCA 1988); Webb v. State, 410 So.2d 944(Fla. 1st DCA), rev. denied, 421 So.2d 68 (Fla.1982). Accordingly, we vacate Daniels’ sentence for third degree murder and remand the cause for resentencing as a second degree felony.

¶3AFFIRMED in part; VACATED in part and REMANDED.

HARRIS, C.J., and THOMPSON, JJ., concur.

¶4. § 782.04(4), Fla.Stat. (1989).

¶5. § 784.021, Fla.Stat. (1989).

¶6. Section 775.087, Florida Statutes (1989) provides for the reclassification of felonies involving the use or possession of a weapon in the commission of the felony, except a felony in which the use of the weapon is an essential element.