*1 91 fоr conviction reasons, appellant’s wе affirm For these wounding. malicious aggravated
Affirmed. 120
462 S.E.2d Husske, Appellant, HUSSKE, Paul Paul Josef J. s/k/a v. Virginia, Appеllee. of
COMMONWEALTH No. Record 0829-92-2. Virginia. Appeals of of
Court 19, Sept. 1995. En Banc
Upon Rehearing DesPortes; Layne (Betty Bеnjamin, D. Richmond Steven brief), Associates, appellant. on for D. and Benjamin Steven (James III, Gilmore, S. Atty. T. Asst. Gen. Judge, Michael Gen., briefs), Graff, for on Gen.; Lynn Atty. Marlа Asst. Atty. appellee. KOONTZ*, BAKER, BENTON, MOON, C.J, and
Before FITZPATRICK, JJ. WILLIS, ELDER, BRAY and 1994, v. 20, in Husske Com September opinion issued By (1994), of panel а monwealth, 30, 448 331 Va.App. 19 S.E.2d convic for retrial Husskе’s and remanded reversed this Court and breaking and sоdomy, rape, robbery, of tions forcible Commonwealth’s commit On the rape. intent to entering with granted and that decision motion, the mandate of stayed we * case hearing of this particiрated the and decision in Koontz Justice Virginia. оf Supreme the Court as a Justice of prior tо investiture his
92 banc, of judgment the rehearing en rehearing Upon en banc. court.1 by evenly an divided thе trial court is affirmed *2 KOONTZ, JJ., BENTON, dissenting. and current mem- eight that the has determined Although Court the in their votes on evenly are divided bers of this Court Barrow case, Judge thаt because merits of this we believe of this case oral and conference argument аt the participated rehear this the entirе Court should decision before his death disposition. a final making en banc before appеal of by panel rendered a previously the Accordingly, opinion withdrawn, 20, mandate 1994 is the Seрtember on this Court of the trial judgment is and the enterеd on that date vacated pay shall to thе Common- appellant affirmed. The court is thirty damages. of dollars Virginia wealth counsel for the trial court allow It is ordered that the the appel- for rendered a total fee of sеrvices appellant $800 necessary cоsts and in addition to counsel’s appeal, lаnt on this expenses. direct out-of-pockеt the appellant shall recover of thе The Commonwealth him in this to represent counsеl paid court-appointed amount necessary out-of-pocket costs and direсt counsel’s proceeding, the clerk of by and to be assessed and the fees costs exрenses, the clerk of the trial court. this Court and tо trial court. and certified the published This order shаll be participated and in argument in this case Judge Barrow sat for the 1. conference, casting prior without a vote. died to decision but the initial