                                               Tuesday        24th

           October, 2000.


David Darnell Lowery,                                         Appellant,

against       Record No. 1451-98-4
              Circuit Court No. CF980040

Commonwealth of Virginia,                                     Appellee.


                          Upon a Rehearing En Banc

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

                Thomas W. Farrington (Hendershot &
                Farrington, on brief), for appellant.

                John H. McLees, Jr., Senior Assistant
                Attorney General (Mark L. Earley, Attorney
                General, on brief), for appellee.


           On December 7, 1999, a panel of this Court reversed and

dismissed the conviction of David Darnell Lowery for robbery.        See

Lowery v. Commonwealth, 31 Va. App. 131, 521 S.E.2d 770 (1999).       We

granted the Commonwealth's petition for rehearing en banc and stayed

the mandate of that decision.

           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 December

7, 1999 is withdrawn, and the mandate entered on that date is

vacated.   The appellant shall pay to the Commonwealth of Virginia

thirty dollars damages.
          Chief Judge Fitzpatrick, Judges Bumgardner, Frank, Humphreys

and Clements voted to affirm said judgment.

          Judges Benton, Willis, Elder, Bray and Annunziata voted to

reverse the judgment of the trial court.

          This order shall be published and certified to the trial

court.



                           A Copy,

                                Teste:

                                           Cynthia L. McCoy, Clerk

                                By:

                                           Deputy Clerk




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