RICKY SIMMONS A/K/A ROBERT ABRAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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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.
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Bauder v. State, 923 So. 2d 1223 (Fla. 3d DCA 2006)…offer any mitigation of his conduct. As the trial court summarily found Mr. Bauder in direct criminal contempt and sentenced him without complying with the rule, the judgment and sentence must be reversed.1 See Gopman v. Washington Mut. Bank, F.A., 885 So. 2d 1037, 1038 (Fla. 4th DCA 2004); Kendrick v. Kendrick, 876 So. 2d 730 (Fla. 1st DCA 2004); Patz v. State, 691 So. 2d 66, 67 (Fla. 3d DCA 1997)(stating that “[t]he case law in this area is very clear that strict adherence to the rule is absolutely imperati…