                                              Tuesday       10th

           July, 2001.


Avery Demetrie Kirby,                                       Appellant,

against      Record No. 0076-00-3
             Circuit Court Nos. CR99-994, CR99-995 and
                                CR99-1176

Commonwealth of Virginia,                                   Appellee.


                         Upon a Rehearing En Banc

 Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, Bray,
     Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee


              S. Jane Chittom, Appellate Defender (Public
              Defender Commission, on briefs), for
              appellant.

              Virginia B. Theisen, Assistant Attorney
              General (Mark L. Earley, Attorney General,
              on brief), for appellee.



           By unpublished opinion dated December 5, 2000, a divided

panel of this Court affirmed the judgment of the trial court.   We

stayed the mandate of that decision and granted rehearing en banc.

           Upon rehearing en banc, it is ordered that the stay of the

December 5, 2000 mandate is lifted, and the judgment of the trial

court is affirmed for the reasons set forth in the majority panel

opinion.

           Judges Benton and Elder dissent for the reasons set forth

in the panel dissent.
           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 December 5, 2000

mandate.

           This order shall be certified to the trial court.


                           A Copy,

                                Teste:

                                           Cynthia L. McCoy, Clerk

                                By:

                                           Deputy Clerk




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