dissenting.
I am unable to agree with the majority’s holding that the appeal should be dismissed as it is my view that the case sub judice is controlled by the decision in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821), and should be decided on the merits.
I am authorized to state that Chief Judge Birdsong, Judge Sognier and Judge Benham join in this dissent.