
    DISTRICT OF COLUMBIA, Appellant, v. Mark FITZGERALD, Appellee.
    No. 05-CT-1428.
    District of Columbia Court of Appeals.
    Feb. 12, 2009.
    Before: WASHINGTON,* Chief Judge; RUIZ, REID,* GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY, THOMPSON,* and OBERLY, Associate Judges; FARRELL, Senior Judge.
    
      
       Judge Oberly did not participate in the consideration of this petition.
    
    
      
       Judge Farrell was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on January 23, 2009.
    
   ORDER

PER CURIAM.

On consideration of appellee’s pro se petition for rehearing en banc, appellant’s opposition thereto, the brief of amicus curiae (Public Defender Service) in support of petition, and appellee’s pro se motion for stay of mandate; and it appearing that the majority of the judges of this court has voted to deny the petition for rehearing en banc, it is

ORDERED, sua sponte, by the merits division * that a new footnote is added to this court’s amended opinion filed on July 17, 2008, following the paragraph beginning with “Despite these authorities,” and ending with “the constitutional doctrine of separation of powers.”” The footnote shall read as follows:

It is FURTHER ORDERED that the petition for rehearing en banc is denied without prejudice to the filing of a new petition for rehearing en banc directed at the opinion as amended by this order (adding footnote 11a). It is

FURTHER ORDERED that appellee’s pro se motion for stay of mandate is denied.

Judge GLICKMAN would grant the petition for rehearing en banc. 
      
       The propriety of treating this as a mandamus action is confirmed by the uncertainty, to which the District points, whether § 23-lll(d)(2) was even available to it as a means by which to appeal from Judge Cushenberry’s ruling. He did not rule that Mr. Fitzgerald was “not subject to an increased sentence as a matter of law,” id.; rather, he exercised what he believed was his discretion to refuse to enhance the sentence based on a prior conviction involving a “juvenile matter.” The District has at least a substantial argument that mandamus was the sole means by which to contest the assumed authority to refuse to enhance.
     