William KINDER, Appellant, v. STATE of Florida, Appellee, 240 So. 2d 162

PIERCE, Judge. This is an appeal by appellant William Kinder from an order denying his motion filed under CrPR 1.850, 33 F.S.A. to vacate a previous judgment of conviction entered against him. On July 24, 1968, information was filed in the Hillsborough County Criminal Court of Record charging Kinder with the offense of assault with intent to commit first degree murder.

Upon plea of guilty in open Court on October 16, 1968 to the lesser offense of assault with intent to commit manslaughter, Kinder was, on December 9, 1968, adjudged to be guilty of said lesser offense and sentenced to serve a term in the State Prison. On November 24, 1969, Kinder filed motion in the trial Court under CrPR 1.850, seeking to vacate said judgment and sentence, contending that the trial Court did not have jurisdiction of the offense of assault with intent to commit manslaughter, relying upon Judge McCain’s 4th District dissenting opinion in Brown v. State, Fla.App.1970, 232 So.2d 55, 58.

But the Supreme Court of Florida upon further review of the same case, specifically overruled Judge McCain’s dissenting opinion, Brown v. State, Fla.1970, 237 So.2d 129. This 2nd District Court has had occasion to apply the Supreme Court’s ruling in cases brought to this Court on appeal since the high Court’s opinion in Brown was released. See Rogers v. State, Fla.App., 239 So.2d 118, opinion filed September 11, 1970, not yet published; also Woods v. State, 239 So.2d 853, this day decided by this Court. The order appealed from is thereupon'— Affirmed. HOBSON, C. J., and McNULTY, J., concur.