Paul J. Husske, s/k/a, etc. v Commonwealth

Tuesday 	19th
September, 1995.
Paul J. Husske, s/k/a
Paul Josef Husske, 	Appellant,
against 	Record No. 0829-92-2
Circuit Court Nos. CR-91-0943-00F through
CR-91-0943-02F and CR-91-1361-00F
Commonwealth of Virginia, 	Appellee.
Upon Rehearing En Banc
Before Chief Judge Moon, Judges Baker, Benton, Koontz*,
Willis, Elder, Bray and Fitzpatrick
Steven D. Benjamin (Betty Layne DesPortes;
Steven D. Benjamin and Associates, on
brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Marla Lynn Graff, Assistant Attorney
General, on briefs), for appellee.
By opinion issued September 20, 1994, in Husske v.
Commonwealth, 19 Va. App. 30, 448 S.E.2d 331 (1994), a panel of this
Court reversed and remanded for retrial Husske's convictions of
forcible sodomy, rape, robbery, and breaking and entering with intent
to commit rape. 	On the Commonwealth's motion, we stayed the mandate
of that decision and granted rehearing en banc. 	Upon rehearing en
banc, the judgment of the trial court is affirmed by an evenly divided
court.1
1Judge 	Barrow 	sat 	for 	the 	argument 	in 	this 	case 	and
participated in the initial conference, but died prior to decision
without casting a vote.

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Benton, and Koontz, J.J., dissenting.
Although the Court has determined that eight current members
of this Court are evenly divided in their votes on the merits of this
case, we believe that because Judge Barrow participated at the oral
argument and conference of this case decision before his death the
entire Court should rehear this appeal en banc before making a final
disposition.
____________________
Accordingly, the opinion previously rendered by a panel of
this Court on September 20, 1994 is withdrawn, the mandate entered on
that date is vacated and the judgment of the trial court is affirmed.
The appellant shall pay to the Commonwealth of Virginia thirty
dollars damages.
It is ordered that the trial court allow counsel for the
appellant a total fee of $800 for services rendered the appellant on
this appeal, in addition to counsel's costs and necessary direct out-
of-pocket expenses.
The Commonwealth shall recover of the appellant the amount
paid court-appointed counsel to represent him in this proceeding,
counsel's costs and necessary direct out-of-pocket expenses, and the
fees and costs to be assessed by the clerk of this Court and the clerk
of the trial court.
This order shall be published and certified to the trial
court.

Costs due the Commonwealth
by appellant in Court of
Appeals of Virginia:
Attorney's fee 	$800.00 	plus costs and expenses
Filing fee 	25.00
____________________
*Justice Koontz participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme Court
of Virginia.
A Copy,
Teste:
Richard R. James, Clerk
By:
Deputy Clerk