Summary
deferring to a trial court's factual finding of no prosecutorial misconduct in deciding whether double jeopardy principles prevented retrial of a defendant
Summary of this case from Dalo v. CommonwealthOpinion
49586 No. 1002-92-2
August 23, 1994
In the Court of Appeals of Virginia on Tuesday the 23rd day of August, 1994.
Before Chief Judge Moon, Judges Baker, Benton, Coleman, Koontz, Willis, Elder, Bray and Fitzpatrick
Joseph W. Kaestner (Kaestner and Associates, on briefs), for appellant.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
ORDER
VIRGINIA:
UPON A REHEARING EN BANC OPINION
On January 11, 1994, a panel of this Court affirmed appellant's convictions of second degree murder and the use of a firearm in the commission of murder, holding that his reprosecution was not barred on double jeopardy grounds. See Robinson v. Commonwealth, 17 Va. App. 551, 439 S.E.2d 622 (1994). Appellant's petition for rehearing en banc was granted on March 24, 1994, and the mandate of the January 11, 1994, opinion was stayed.
The appeal was reheard en banc on June 2, 1994. For the reasons stated in the original majority opinion, the Court affirms the decision of the trial court. Therefore, the say of the mandate of the January 11, 1994 opinion is lifted, and the case is affirmed in accordance with that opinion and its adoption by this order.
Judges Benton, Coleman, Koontz and Elder, for the reasons stated in Judge Benton's dissent from the original decision, Robinson v. Commonwealth, 17 Va. App. 551, 557, 439 S.E.2d 622, 626 (1994) (Benton, J. dissenting), would reverse the conviction and dismiss the case.