Opinion
Record No. 2325-03-1.
April 12, 2005.
Gregory B. Turpin, Virginia Beach, 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, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY, McCLANAHAN and HALEY.
Upon a Rehearing En Banc
By published opinion dated November 9, 2004, a divided panel of this Court reversed the judgment of the trial court. See Neely v. Commonwealth, 44 Va.App. 239, 604 S.E.2d 733 (2004). We stayed the mandate of that decision and granted a rehearing en banc, 44 Va.App. 535, 605 S.E.2d 777 (2004).
Upon rehearing en banc, it is ordered that the stay of the November 9, 2004 mandate is lifted and the judgment of the trial court is reversed and remanded to the trial court for the reasons set forth in the majority panel opinion.
Chief Judge FITZPATRICK, Judges BUMGARDNER, FELTON and HALEY dissent for the reasons set forth in the panel dissent. See 44 Va.App. at 244-47, 604 S.E.2d at 735-36.
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 order shall be published and certified to the trial court.