Opinion
No. 88-1637.
June 16, 1989. Rehearing Denied July 24, 1989.
Appeal from the Circuit Court for Jefferson County, Felix A. Johnston, J.
Michael E. Allen, Public Defender, and Nancy A. Daniels, Special Asst. Public Defender, Tallahassee, for appellant.
Robert Butterworth, Atty. Gen., Richard E. Doran, Asst. Atty. Gen., and Gypsy Bailey, Certified Legal Intern, Tallahassee, for appellee.
Grantham has appealed from a conviction for depraved mind second-degree murder, use of a firearm in the commission of a felony and carrying a concealed weapon. We affirm in part, reverse in part and remand with directions.
Grantham alleges that the trial court erred in improperly instructing the jury on the defense of excusable homicide and in denying the defense request for an instruction on third-degree murder, pursuant to Section 782.04, Florida Statutes. We affirm on these issues.
However, Grantham further alleges that she should not have been adjudicated guilty of using a firearm in the commission of a felony, in that the use of a firearm was relied on to enhance her second-degree murder conviction from a first-degree to a life felony, pursuant to Section 775.087, Florida Statutes. We agree. See Hall v. State, 530 So.2d 1066 (Fla. 1st DCA 1988).
Grantham's conviction of use of a firearm in the commission of a felony, contrary to Section 790.07(2), Florida Statutes, is therefore reversed, and the case is remanded with directions to vacate that conviction. Because the trial court declined to sentence Grantham on this charge, no resentencing is necessary on remand. The judgment and sentence are in all other respects affirmed.
ERVIN and SHIVERS, JJ., concur.