Nesbitt v. State

Appellant, Sean C. Nesbitt, was convicted of murder in the third degree with a firearm. At sentencing, the trial court, relying on section 775.087(1), Florida Statutes (1991), reclassified the conviction from second degree to first degree on the ground that appellant used a firearm in the commission of the offense. This was error. See Gonzalez v. State, 585 So.2d 932 (Fla.1991); see also Lareau v. State, 554 So.2d 638 (Fla. 4th DCA 1989), approved, 573 So.2d 813, 815 (Fla.1991).

We therefore affirm the conviction but reverse the sentence, and remand for re-sentencing in light of this opinion.

AF…