NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.
COMMONWEALTH OF VIRGINIA
July 10, 2001.
Record No. 0076-00-3
Avery Demetrie Kirby,
Commonwealth of Virginia,
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton,
Willis, Elder, Bray, Annunziata, Bumgardner, Frank, Humphreys,
Clements and Agee
S. Jane Chittom, Appellate
Defender (Public Defender Commission, on
briefs), for appellant.
Virginia B. Theisen,
Assistant Attorney General (Mark L. Earley,
Attorney General, on brief), for appellee.
By unpublished opinion dated December 5, 2000,
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 the December 5, 2000 mandate is lifted,
and the judgment of the trial court is affirmed for the reasons
set forth in the majority panel opinion.
Judges Benton and Elder dissent for the reasons
set forth in the panel dissent.
The Commonwealth shall recover of the appellant
an additional fee of $200 for services rendered by the Public
Defender 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
December 5, 2000 mandate.
This order shall be certified to the trial
Cynthia L. McCoy, Clerk