Fitzgerald v. Commonwealth , 13 Va. App. 281 ( 1991 )

411 S.E.2d 228 (1991)

Glenn W. FITZGERALD, Appellant,
v.
COMMONWEALTH of Virginia, Appellee.

Record No. 0234-89-3.

Court of Appeals of Virginia.

November 12, 1991.

J. Harold Eads, Fincastle, for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

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

UPON A REHEARING EN BANC

On February 5, 1991 a panel of this Court affirmed the conviction of Glenn W. Fitzgerald, 11 Va.App. 625, 401 S.E.2d 208 (1991). Fitzgerald's petition for rehearing en banc was granted and heard on October 22, 1991. For the reasons stated in the panel's opinion, a majority of the Court affirms the judgments of the trial court. Accordingly, the stay of this Court's February 5, 1991 mandate is lifted and its directives reinstated.

Judge Benton, with whom Chief Judge Koontz joins, would reverse the judgment of the trial court for the reasons stated in the dissenting opinion of the original panel decision.

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-of-pocket expenses. This amount shall be added to the costs due the Commonwealth in the February 5, 1991 mandate.

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