                            July 18, 2000


Professor Richard A. Williamson       Elizabeth Oyster, Esq.
College of William and Mary           Geronimo Development Corp.
Williamsburg, Virginia 23185          606 25th Avenue, South
                                      Suite 206
Mr. David M. George                   St. Cloud, Minnesota 56301
Government Relations Contracts
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West Group                            Legal Data Collections
610 Opperman Drive                    8891 Gander Creek Drive
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Paul Fletcher, Publisher
Virginia Lawyers Weekly
106 North Eighth Street
Richmond, Virginia 23219

    Re:     David Edward Hartigan, III
            v. Commonwealth of Virginia
            Record No. 1002-98-4

Gentlemen and Ms. Oyster:

     I am enclosing to you a   copy of an order entered by this Court in
the above-referenced case on   July 18, 2000. The Court has directed
that this order be published   in the appropriate volumes. I appreciate
your cooperation in ensuring   that publication is accomplished.


                                 Sincerely,



                                 Marty K. P. Ring
                                 Deputy Clerk
MKPR:mfr

Enclosure
                                       Tuesday   18th

          July, 2000.


David Edward Hartigan, III,                      Appellant,

against      Record No. 1002-98-4
             Circuit Court No. 93324

Commonwealth of Virginia,                        Appellee.
                        Upon a Rehearing En Banc

        Before Chief Judge Fitzpatrick, Judges Benton, Coleman,
       Elder, Bray, Bumgardner, Humphreys and Senior Judge Cole


              Vanessa M. Antoun, Assistant Public
              Defender (Office of the Public
              Defender, on brief), for appellant.

              Thomas D. Bagwell, Senior Assistant
              Attorney General (Mark L. Earley,
              Attorney General, on brief), for
              appellee.


           A jury convicted David Edward Hartigan, III, of grand

larceny.   On appeal, Hartigan contends (1) the trial judge erred

in admitting evidence that impermissibly commented on Hartigan's

exercise of his constitutional privilege against self-

incrimination and (2) that after the Commonwealth introduced in

the sentencing proceeding evidence of his prior convictions,

including the sentences for which he was parole eligible, the

trial judge erred in refusing to instruct the jury that parole

has been abolished.   A panel of this
Court reversed the conviction.   See Hartigan v. Commonwealth, 31

Va. App. 243, 522 S.E.2d 406 (1999).   We granted a rehearing en

banc.

           While this rehearing was pending, the Supreme Court

decided Fishback v. Commonwealth, ___ Va. ___, ___ S.E.2d ___

(2000), holding that, as to those offenses to which Code § 53.1-

165.1 applies, "juries shall be instructed, as a matter of law,

on the abolition of parole for non-capital felony offenses

committed on or after January 1, 1995 pursuant to Code § 53.1-

165.1."   Id. at ___, ___ S.E.2d at ___.   For that reason, and for

the reasons stated in the previous panel decision, the stay of

this Court's December 28, 1999 mandate is lifted, and we reverse

the conviction on both issues and remand for a new trial.

           This order shall be published and certified to the

trial court.


                           A Copy,

                                 Teste:

                                           Cynthia L. McCoy, Clerk

                                 By:

                                           Deputy Clerk
