
    Herbert Joseph HENRY, Appellant, v. STATE of Florida, Appellee.
    No. E-392.
    District Court of Appeal of Florida. First District.
    April 16, 1964.
    William C. Andrews, Gainesville, for appellant.
    James W. Kynes, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   PER CURIAM.

It appearing that since the filing of our decision dated December 10, 1963, Henry v. State, Fla.App., 158 So.2d 807, denying ap-pellee’s motion to dismiss this cause, which motion was based on the ground that the appeal was not filed within ninety (90) days from the date of the judgment appealed, as required by Rule 6.2, Florida Appellate Rules, 31 F.S.A., in the case of State ex rel. Ervin v. Smith, (Fla.) 160 So.2d 518, the Florida Supreme Court rendered an opinion, the effect of which is to reject the rule announced by our said decision in this cause, and it being made to appear that our decision is not in conformity with the rule laid down in State ex rel. Ervin v. Smith, supra, and that said motion to dismiss was well taken.

It is thereupon ordered that our said decision and judgment filed herein on December 10, 1963 be and it is hereby recalled, set aside and held for naught.

It is further ordered that the said motion of the appellee to dismiss this appeal for failure to file notice of appeal within ninety (90) days from the date of the entry of the judgment sought to be appealed be and the same is hereby granted and said appeal is hereby dismissed.

It is so ordered.

STURGIS, C. J., and WIGGINTON and RAWLS, JJ., concur.  