                                              Tuesday         14th

           December, 1999.


Deshon W. Pitt,                                               Appellant,

against        Record No. 1015-97-1
               Circuit Court No. CR96-3180

Commonwealth of Virginia,                                     Appellee.


                         Upon a Rehearing En Banc

    Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
         Elder, Bray, Annunziata, Bumgardner, Lemons and Frank


           Donald S. Clarke for appellant.

           Kathleen B. Martin, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


           A divided panel of this Court affirmed the judgment of the

trial court.    See Pitt v. Commonwealth, 28 Va. App. 730, 508 S.E.2d

891 (1999).    We stayed the mandate of that decision and granted

rehearing en banc.

           Upon rehearing en banc, the judgment of the trial court is

affirmed without opinion by an evenly divided Court.    Accordingly,

the opinion previously rendered by a panel of this Court on

January 5, 1999 is withdrawn, and the mandate entered on that date is

vacated.
          Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis and

Bumgardner voted to reverse the judgment of the trial court.

          Judges Elder, Bray, Annunziata, Lemons and Frank voted to

affirm said judgment.

             It is ordered that the trial court allow counsel for the

appellant a total fee of $925 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      $925.00        plus costs and expenses



                             A Copy,

                                  Teste:

                                             Cynthia L. McCoy, Clerk

                                  By:

                                             Deputy Clerk




                                   -2-
