Opinion
Record No. 2879-00-1. Circuit Court Nos. 43952-00 through 43954-00.
December 3, 2002.
Upon a Rehearing En Banc.
Paul E. Turner, Jr., for appellant.
Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Agee, Felton and Kelsey.
By memorandum opinion dated July 16, 2002, a divided panel of this Court affirmed the judgment of the trial court. We stayed the mandate of that decision and granted rehearing en banc.
Upon rehearing en banc, it is ordered that the stay of this Court's July 16, 2002 mandate is lifted, and the judgment of the trial court is affirmed for the reasons set forth in the panel majority.
Chief Judge Fitzpatrick and Judge Benton dissent for the reasons set forth in the dissenting opinion of the panel.
It is ordered that the trial court allow counsel for the appellant an additional fee of $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 July 16, 2002 mandate.
This order shall be certified to the trial court.