LOUIS CHARLES SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Louis Charles Smith appealed the trial court's denial of his motion for rehearing regarding a post-conviction relief proceeding. The appellate court dismissed the appeal as premature and lacking jurisdiction because trial court proceedings were still pending that could moot the appeal.
The appellate court lacks jurisdiction to hear the appeal because it is premature and piecemeal. Since trial court proceedings were still pending that could moot the appeal, it was inappropriate for the appellate court to address the case in a piecemeal fashion.
[1] An appeal from an order denying a motion for rehearing is premature when the trial court still has labor to conduct, such as an evidentiary hearing.
[2] An appellate court lacks jurisdiction to hear a premature and piecemeal appeal.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Since there is still trial court labor to be conducted below, which might moot the appeal, it is not appropriate that we deal with this case in a piecemeal fashion.”
Establishes the court's primary rationale for dismissing the appeal as premature—that pending trial court proceedings could moot the appellate issues.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSmith was convicted of sexual battery and kidnapping and sentenced to two life imprisonment terms, with a 15-year mandatory minimum on the kidnapping …
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W. SHARP, Judge.
Smith was convicted of sexual battery1 (a life felony), and kidnapping2 (a first-degree felony), and he was sentenced to two life imprisonment terms. On the kidnapping charge, he was sentenced as a violent felony habitual offender and received a 15-year mandatory minimum sentence. He also was designated as a sexual predator. He appealed and this court affirmed without opinion. Smith v. State, 675 So. 2d 948 (Fla. 5th DCA 1996).
Smith filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He alleged five grounds, four of which claimed incompetence of trial counsel. The trial judge summarily denied relief except for a portion of the first claim— the failure of trial counsel to call an alibi witness. On September 16, 1997, the judge ordered an evidentiary hearing to be held concerning that issue.
However, on September 24, 1997, Smith filed a motion for rehearing, which was denied October 6, 1997. Next Smith filed a notice of appeal directed to the trial court’s order of October 6, denying his motion for rehearing. Apparently recognizing that he had created a jurisdictional quagmire, Smith filed a motion with this court for temporary relinquishment of jurisdiction to the trial court.
We agree there is a jurisdiction problem in this case. In like cases this court has consistently held that such an appeal is premature. Since there is still trial court labor to be conducted below, which might moot the appeal, it is not appropriate that we deal with this case in a piecemeal fashion. See, e.g., unpublished orders entered in: Gordon v. State, 688 So. 2d 995 (Fla. 5th DCA 1997) (sua sponte dismissed without prejudice); Myers v. State, No. 96-1585 (Fla. 5th DCA June 17, 1996) (sua sponte dismissed as improper piecemeal appeal); Williams v. State, No. 96-778 (Fla. 5th DCA Mar. 28, 1996) (sua sponte dismissed for lack of jurisdiction); Johnson v. State, No. 95-2713 (Fla. 5th DCA Oct. 26, 1995) (sua sponte dismissed for lack of jurisdiction).
Accordingly, we deny Smith’s motion for temporary relinquishment of jurisdiction to the trial court, and we dismiss this appeal, sua sponte, as being premature and piecemeal, and thus one this court lacks jurisdiction to hear. Motion DENIED; Appeal DISMISSED.
COBB and THOMPSON, JJ., concur. . § 794.011(3), Fla. Stat. (1993).
. § 787.01(1 )(a), Fla. Stat. (1993).
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McGRIFF v. State, 721 So. 2d 839 (Fla. 5th DCA 1998)…videntiary hearing has been held, and no final order following it has been rendered. Any appeal should be from that order. Since this issue was not raised by the state, sua sponte, we dismiss this appeal for-lack of jurisdiction. See Smith v. State, 703 So. 2d 1165 (Fla. 5th DCA 1997); Gordon v. State, 688 So. 2d 995 (Fla. 5th DCA 1997); Gowins v. State, 662 So. 2d 1348 (Fla. 5th DCA 1995). DISMISSED. GRIFFIN, C.J., and COBB, J., concur.…
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