Appellant’s motion in the trial court for relief pursuant to Rule 1.850, Florida Rules of Criminal Procedure, 33 F.S.A., w.as based upon the grounds that (1) he was indigent, and (2) he was not offered or furnished the assistance of counsel at the time of his guilty plea. An examination of the files and records before us conclusively shows that the second ground for relief is false. We therefore affirm this appeal from the order denying relief.

We note also that this appeal is subject to dismissal pursuant to the rule set forth in Frappied v. State, Fla.App.1964, 163 So.2d 502, that relief under Criminal Rule One (now Rule 1.850, Florida Rules of Criminal Procedure) would not be available to an appellant not in custody under sentence of the lower court. But since that point was not presented in the State’s brief, we do not act upon it.

Affirmed.