Smith v. State , 670 So. 2d 1181 ( 1996 )

670 So.2d 1181 (1996)

Moses Anthony SMITH, Appellant,
v.
STATE of Florida, Appellee.

No. 95-4109.

District Court of Appeal of Florida, Fourth District.

April 3, 1996.

Moses Anthony Smith, Jasper, pro se.

No appearance required for Appellee.

SHAHOOD, Judge.

Moses Anthony Smith appeals from the trial court's order which denied in part and granted in part his rule 3.850 motion for post-conviction relief. We dismiss for a lack of jurisdiction.

Pursuant to appellant's motion for post-conviction relief, the court entered an order which denied appellant's motion as to count one (ineffective assistance of counsel for failing to object to transfer to adult court and imposition of adult sanctions and failing to order a presentence investigation), but granted the motion as to count two (ineffective assistance of counsel for failing to file a notice of appeal), stating that the court "shall adopt and incorporate the state's response, which is attached." As to count two, the state conceded in its response that the issue "can only be resolved after an evidentiary hearing."

At this time, we do not know whether an evidentiary hearing was held in accordance with the trial court's order granting partial relief. However, any ruling made by the trial court would be without jurisdiction because of the instant appeal. See Gowins v. State, 662 So.2d 1348 (Fla. 5th DCA 1995).

Based on the current status of the case in the court below, all judicial labor of the trial court has yet to be performed because either the evidentiary hearing has not been held, or if held, the trial court was without jurisdiction because of the pendency of this appeal. This case is not clothed with the finality required to invoke this court's appellate jurisdiction. See Stewart v. State, 647 So.2d 219 (Fla. 2d DCA 1994); White v. State, 450 So.2d 556 (Fla. 2d DCA 1984).

We appropriately dismiss this appeal for a lack of jurisdiction.

STONE and WARNER, JJ., concur.