Simmons v. State

885 So. 2d 1037, 2004 Fla. App. LEXIS 16665, 2004 WL 2479851

Opinion

SHARP, W., J.

Simmons appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He seeks to have his 1998 conviction for felony petit theft set aside based on facts he claims were unknown to him and which could not have been ascertained through the exercise of due diligence. The trial court ruled that Simmons essentially raises a scrivener’s error, so despite the fact that the motion was untimely, the court granted relief by amending the judgment to reflect that Simmons was adjudicated guilty of felony petit theft and not robbery.

It thus appears that Simmons received the relief he sought. However, it also appears that the 84 month sentence which he received in this case exceeds the statutory maximum sentence for felony petit theft, a third degree felony. See § 812.014(3)(c), Fla. Stat.

Accordingly, we affirm this cause without prejudice to Simmons to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), challenging the legality of his sentence.

AFFIRMED.

SAWAYA, C.J., and PALMER, J., concur.