Florida District Courts of Appeal, 2012

Allen v. State

Allen v. State
Florida District Courts of Appeal · Decided October 19, 2012 · Davis, Nortwick, Rowe
98 So. 3d 1274; 2012 WL 5076177; 2012 Fla. App. LEXIS 18161 (Southern Reporter, Third Series)

Allen v. State

Opinion of the Court

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 *1275to 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.

DAVIS, VAN NORTWICK, and ROWE, JJ., concur.

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