Robinson v. Commonwealth , 18 Va. App. 814 ( 1994 )

447 S.E.2d 542 (1994)

Earl ROBINSON, Appellant,
v.
COMMONWEALTH of Virginia, Appellee.

Record No. 1002-92-2.

Court of Appeals of Virginia.

August 23, 1994.

Joseph W. Kaestner, Richmond (Kaestner and Associates, on briefs), for appellant.

Robert B. Condon, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Before MOON, C.J., and BAKER, BENTON, COLEMAN, KOONTZ, WILLIS, ELDER, BRAY and FITZPATRICK, JJ.

UPON A REHEARING EN BANC

On January 11, 1994, a panel of this Court affirmed appellant's convictions of second degree murder and the use of a firearm in the commission of murder, holding that his reprosecution was not barred on double jeopardy grounds. See Robinson v. Commonwealth, ___ Va.App. ___, 439 S.E.2d 622 (1994). Appellant's petition for rehearing en banc was granted on March 24, 1994, and the mandate of the January 11, 1994, opinion was stayed.

The appeal was reheard en banc on June 2, 1994. For the reasons stated in the original majority opinion, the Court affirms the decision of the trial court. Therefore, the stay of the mandate of the January 11, 1994 opinion is lifted, and the case is affirmed in accordance with that opinion and its adoption by this order.

Judges Benton, Coleman, Koontz and Elder, for the reasons stated in Judge Benton's dissent from the original decision, Robinson v. Commonwealth, ___ Va.App. ___, 439 S.E.2d 622, 626 (1994) (Benton, J. dissenting), would reverse the conviction and dismiss the case.

The trial court shall allow court-appointed counsel for the appellant an additional $200 for services rendered the appellant on the rehearing portion of this appeal, in addition to counsel's costs and necessary direct out-ofpocket expenses. This amount shall be added to the costs due the Commonwealth in the January 11, 1994 mandate.

This order shall be published and certified to the trial court.