Opinion
No. 89-3009.
July 25, 1990.
Appeal from the Circuit Court for Indian River County; Paul B. Kanarek, Judge.
Richard L. Jorandby, Public Defender, and Donna Levine, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and John M. Koenig, Jr., Asst. Atty. Gen., West Palm Beach, for appellee.
We reverse and vacate that part of the trial court's sentence which imposed a three-year mandatory minimum sentence for the defendant's conviction of third-degree murder. The use of a firearm is not an essential element of third-degree murder and the jury did not, by interrogatory verdict, make a specific finding that appellant used a firearm in the commission of the murder. The state agrees that this part of the trial court's sentence must be reversed on the authority of State v. Overfelt, 457 So.2d 1385 (Fla. 1984) and Vause v. State, 502 So.2d 511 (Fla. 1st DCA 1987).
We affirm appellant's conviction and the remainder of the sentence imposed by the trial court.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
LETTS and DELL, JJ., and FRANK, RICHARD H., Associate Judge, concur.