
    Charles R. ROGERS, Appellant, v. The STATE of Florida, Appellee.
    No. 70-54.
    District Court of Appeal of Florida, Second District.
    Sept. 11, 1970.
    Walter R. Talley, Public Defender, and D. Turner Matthews, Asst. Public Defender, Bradenton, for appellant.
    Earl Faircloth, Atty. Gen., Tallahassee, and Morton J. Hanlon, Asst. Atty. Gen., Lakeland, for appellee.
   PIERCE, Judge.

Appellant Charles R. Rogers appeals an order denying a motion for post-conviction relief brought under CrPR 1.850, 33 F.S. A.

Rogers was informed against in the Criminal Court of Record for Hills-borough County for the offense of breaking and entering a business building with intent to commit a misdemeanor. Upon plea of guilty he was sentenced to a term in the State Prison. Thereafter he filed a motion to vacate the judgment and sentence. The trial court denied the motion and he appeals to this Court from the order of denial. The ground of the motion was that the statute under which Rogers was charged, F.S. § 810.05, F.S.A., “is unconstitutional and of no legal foundation”.

Rogers obviously relies upon the dissenting opinion of Judge McCain of the 4th District Court in the case of Brown v. State, Fla.App., 232 So.2d 55. But the Supreme Court of Florida, upon further review of the same case, Brown v. State, 237 So.2d 129, 1970, specifically overruled Judge McCain’s dissenting opinion, holding that an indictment or information charging a crime in essentially the same language as used in the instant case sufficiently stated a felony.

This disposes of the only question relied upon here, and the order appealed from is therefore—

Affirmed.

HOBSON, C. J., and MANN, J., concur.  