Opinion
Record No. 1472-02-2. Circuit Court Nos. CR00-4122 and CR00-4175.
December 16, 2003.
Upon a Rehearing En Banc.
Jennifer M. Newman (Carolyn V. Grady; Jennifer M. Newman, P.C.; Carolyn V. Grady, P.C., on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Felton and Kelsey.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On May 27, 2003, a panel of this Court reversed and dismissed the judgment of the trial court. See El-Amin v. Commonwealth, Record No. 1472-02-2 (Va.Ct.App. May 27, 2003). We stayed the mandate of that decision and granted rehearing en banc.
Upon rehearing en banc, appellant's convictions of possession of cocaine and possession of cocaine while in possession of a firearm are affirmed without opinion by an evenly divided Court. Accordingly, the opinion previously rendered by a panel of this Court on May 27, 2003 is withdrawn, and the mandate entered on that date is vacated. The Court notes, however, that while the conviction order reflects that appellant was convicted of possession of cocaine in violation of Code § 18.2-250, the sentencing order dated April 2, 2001 reflects that appellant was convicted and sentenced for a conviction of possession of cocaine with intent to distribute in violation of Code § 18.2-248. Accordingly, this matter is remanded to the trial court to correct the clerical error in the final sentencing order. The appellant shall pay to the Commonwealth of Virginia thirty dollars damages.
Chief Judge Fitzpatrick, Judges Bumgardner, Humphreys, Felton and Kelsey voted to affirm the judgment of the trial court.
Judges Benton, Elder, Annunziata, Frank and Clements voted to reverse the judgment of the trial court.
This order shall be certified to the trial court.