#### STATE OF NORTH CAROLINA v. ROBERT LEWIS McCLAIN

No. 140A00

(Filed 31 January 2002)

ORDER

Pursuant to N.C.G.S. § 15A-1418, defendant’s Motion for Appropriate Relief filed in this Court on 20 December 2001 is allowed for the limited purpose of entering the following orders:

Defendant’s Motion for Appropriate Relief is hereby remanded to the Superior Court, Mecklenburg County, for a determination as to whether defendant is mentally retarded as defined by N.C.G.S. § 15A-2005.

It is further ordered that an evidentiary hearing be held on the aforesaid motion and that the resulting order containing the findings of fact and conclusions of law of the trial court determining the motion be transmitted to this Court so that it may proceed with the appeal or enter an order terminating the appeal. Time periods for perfecting or proceeding with the appeal are tolled pending receipt of the order of disposition of the motion in the trial division.

By order of the Court in Conference, this the 31st day of January, 2002.

s/Robert H. Edmunds. Jr. For the Court