Opinion
No. 1D12–3021.
2012-10-19
Donald ALLEN, Appellant, v. STATE of Florida, Appellee.
An appeal from the Circuit Court for Bay County. Elijah Smiley, Judge. Donald Allen, pro se, Appellant. Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
An appeal from the Circuit Court for Bay County. Elijah Smiley, Judge.
Donald Allen, pro se, Appellant. Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
The appellant filed a rule 3.850 motion arguing that his conviction for simple possession of cocaine was incorrectly listed on the judgment as a second-degree felony when it is a third-degree felony. The appellant is correct, and in response to this Court's order issued pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the state concedes error. See§ 893.13(6)(a), Florida Statutes (1997); Grandison v. State, 691 So.2d 591 (Fla. 1st DCA 1997). Consequently, the lower court is directed to treat the motion as having been filed under rule 3.800(a), and to correct the judgment to reflect that the appellant's conviction for simple possession constitutes a third-degree felony rather than a second-degree felony. See id.
REVERSED AND REMANDED with directions.