#### James KIRBY v. STATE of Arkansas

CR 98-1442

992 S.W.2d 803

Supreme Court of Arkansas

Opinion delivered June 24, 1999

James O. Clawson, for appellant.

*284No response.

Per Curiam.

In accordance with our per curiam entered on May 20, 1999, James O. Clawson appeared before the court to show cause why he should not be held in contempt for failing to appeal appellant James Kirby’s case. Upon denying any fault, Mr. Clawson stated that, after the court previously remanded this case to the trial court for a hearing to determine if Mr. Kirby had requested counsel Clawson to appeal his case, Clawson was never given notice of such a hearing. As a result, Mr. Clawson asserts that he was never afforded the opportunity to be heard on the belated-notice-of-appeal issue. Our review of the transcript of the trial court’s February 8, 1999 hearing fails to reflect that notice was given Mr. Clawson, and the record also confirms Mr. Clawson made no appearance.

Before we continue further in this show-cause proceeding, it is necessary that a determination be made by the trial court as to whether Mr. Clawson was given notice of the February 8 hearing, and, if not, afford him the opportunity to present his testimony. Obviously, Mr. Kirby’s and his new counsel’s presence will be required to assure a complete record can be made for return to this court. After the trial court’s hearing, findings, and return of the record, this court will then decide if a motion for belated appeal should be granted and whether a special master is needed.