DONALD ALLEN, v. STATE OF FLORIDA

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA DONALD ALLEN, Appellant, v. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D12-3021 STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed October 19, 2012. 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 seconddegree 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. DAVIS, VAN NORTWICK, and ROWE, JJ., CONCUR. 2

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