Opinion
No. 1D01-1491
November 30, 2001.
An appeal from the Circuit Court for Okaloosa County. Thomas T. Remington, Judge.
Appellant, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
The appellant challenges the trial court's order denying as untimely filed his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the appellant's motion was filed within two years of the date that the supreme court disposed of the appellant's petition for review of this Court's decision on direct appeal, the appellant's motion is timely. See Brown v. State, 617 So.2d 1105, 1106 (Fla. 1st DCA 1993); see also Cargle v. State, 770 So.2d 1151 (Fla. 2000).
Further, the appellant's claim, which is that the trial court erred in reclassifying his aggravated battery conviction from a second-degree felony to a first-degree felony based on his use of a weapon, because the use of a weapon was an essential element of this conviction, is facially sufficient. See § 775.087(1), Fla. Stat. (1995); see also Senterfitt v. State, 515 So.2d 411 (Fla. 1st DCA 1987).
We accordingly reverse and remand this cause to the circuit court with directions to consider the appellant's claim on the merits.
ERVIN, BENTON and POLSTON, JJ., concur.