murder; the information alleged the appellant killed the victim by “shooting him with a firearm.” The jury was instructed on the lesser-included offense of third-degree (felony) murder, based on the underlying felony of aggravated assault. The trial court classified the conviction as a first-degree felony, and the Second District reversed: We recognize it is possible to commit a third-degree murder without a weapon or firearm. However, the information and the jury instruction in this case caused the use of a firearm to be an essential element of the offense. Under these circumstances, the reclassification was error. See Gonzalez v. State, 585 So.2d 932 (Fla.1991); Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989). Id. See also Rodriguez v. State, 650 So.2d 1111 (Fla. 2d DCA 1995) (<HOLDING>). In this case, the discharge of the firearm
holding that separate sentences for aggravated assault with a deadly weapon and with intent to rob were barred holding reclassification impermissible where underlying felony of attempted thirddegree murder with a firearm was aggravated assault and aggravated assault includes the use of a deadly weapon as a necessary element holding that aggravated assault was not a lesser included offense in prosecution for armed burglary attempted robbery and use of a firearm in the com mission of a felony because the allegation in the information that the accused carried a firearm was insufficient to charge the elements of aggravated assault holding that an unloaded gun used in the commission of an aggravated assault is a deadly weapon holding in case in which defendant pleaded guilty to aggravated assault with a deadly weapon that same conduct could be used as element of offense and also serve as basis for deadly weapon finding