
    494 S.E.2d 162
    Carson Ray SHENK, Appellant, v. COMMONWEALTH of Virginia, Appellee.
    Record No. 1165-96-4.
    Court of Appeals of Virginia.
    Dec. 30, 1997.
    Christian J. Griffin, Assistant Public Defender, for appellant.
    
      Pamela A. Rumpz, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
    Before: FITZPATRICK, C.J., and BAKER, BENTON, COLEMAN, MOON, WILLIS, ELDER, ANNUNZIATA and OVERTON, JJ.
    
      
       On November 19, 1997, Judge Fitzpatrick succeeded Judge Moon as chief judge.
    
    
      
       Judge Moon participated in the hearing and decision of this case prior to the effective date of his retirement on November 25, 1997.
    
   By opinion dated June 3, 1997, a majority of a panel of this Court affirmed the decision of the trial court. Shenk v. Commonwealth, 24 Va.App. 816, 485 S.E.2d 669 (1997). Upon motion of Carson Ray Shenk, we stayed the mandate of that decision and granted a hearing en banc. Upon such rehearing, the stay of this Court’s June 3, 1997 mandate is lifted and the judgment of the trial court is affirmed for those reasons set forth in the panel’s majority opinion.

Judge Benton, with whom Chief Judge Fitzpatrick, Judges Coleman and Elder join, would reverse the judgment of the trial court for those reasons set forth in the panel’s dissenting opinion. See id. at 820-22,485 S.E.2d at 671-72.

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 June 3,1997 mandate.

This order shall be published and certified to the trial court.  