                                                   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
           1
  court.
   1
     Judge Barrow sat for the argument in this case and
participated in the initial conference, but died prior to decision
without casting a vote.
____________________

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this Court on September 20, 1994 is withdrawn, the mandate entered on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
