Hunt v. Commonwealth

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                                                                  Tuesday                24th

               February, 2004.


Marcus Anthony Hunt,                                                                     Appellant,

against             Record No. 1575-02-2
                    Circuit Court Nos. 02-559-F and 02-560-F

Commonwealth of Virginia,                                                                Appellee.


                                       Upon a Rehearing En Banc

          Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank,
                                Humphreys, Clements, Felton and Kelsey

                    Craig W. Stallard, Assistant Public Defender (Office of the
                    Public Defender, on brief), for appellant.

                    Stephen R. McCullough, Assistant Attorney General (Jerry W.
                    Kilgore, Attorney General, on brief), for appellee.


       By opinion dated September 2, 2003, a panel of this Court, with one judge dissenting, reversed

and dismissed the convictions of Marcus Anthony Hunt for possession of a firearm while in possession

of cocaine and possession of cocaine with the intent to distribute, holding the search was unreasonable.

See Hunt v. Commonwealth, 41 Va. App. 404, 585 S.E.2d 827 (2003). We granted the

Commonwealth’s petition for rehearing en banc and stayed the mandate of that decision.

       Upon rehearing en banc, the judgment of the trial court is affirmed without opinion by an evenly

divided Court. Accordingly, the opinion previously rendered by a panel of this Court on September 2,

2003 is withdrawn and the mandate entered on that date is vacated. 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.

         The Commonwealth shall recover of the appellant the costs in this Court, which costs shall

include a total fee of $925 for services rendered by the Public Defender on this appeal, in addition to

counsel's necessary direct out-of-pocket expenses, and the costs in the trial court.

         This order shall be certified to the trial court.

Costs due the Commonwealth by
 appellant in Court of Appeals of Virginia:

         Public Defender         $925.00     plus costs and expenses


                                             A Copy,

                                                     Teste:

                                                                       Cynthia L. McCoy, Clerk

                                                     By:

                                                                       Deputy Clerk




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