Appellant, Bobby Graham, appeals his convictions and sentence for felony fleeing to elude law enforcement with lights and sirens activated, possession of cannabis with intent to sell, grand theft, and misdemeanor resisting an officer without violence. We affirm Appellant’s convictions on all counts. However, upon the State’s concession of error, we reverse and remand for correction of the sentencing score sheet. We agree that the primary score sheet offense of felony fleeing to elude law enforcement with lights and sirens activated under § 316.1935(2), Florida Statutes, should be scored as a level 3 offense, see § 921.0022, Fla. Stat., and a third-degree felony, § 775.082(3)(d), Fla. Stat. (2011).

AFFIRMED, in part; REVERSED AND REMANDED, in part.

concurring in part and dissenting in part.

I join in the decision to reverse for resentencing but dissent to the extent that the court has affirmed the appellant’s conviction for fleeing and eluding a law enforcement officer. I agree with the appellant that the trial judge erred by pointing out to the prosecution factual elements that had not been proven.