                   COURT OF APPEALS OF VIRGINIA


Before:  Chief Judge Moon, Judges Baker, Benton, Coleman,
           Koontz, * Willis, Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia


KENNETH LINWOOD AWKARD

v.         Record No. 2267-93-2              OPINION
                                     BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                SEPTEMBER 5, 1995


                     UPON A REHEARING EN BANC
            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                   Paul M. Peatross, Jr., Judge

           Francis McQ. Lawrence (Ronald M. Huber; St. John,
           Bowling & Lawrence, on brief), for appellant.

           Leah A. Darron, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on brief),
           for appellee.



     By opinion dated February 14, 1995, 1 a panel of this Court

reversed Kenneth Linwood Awkard's (appellant) felony sentence

imposed upon him by the Circuit Court of Albemarle County (trial

court) and remanded the case to the trial court for a

re-sentencing pursuant to the misdemeanor provisions of Code

§ 46.2-357, as amended.    This Code section became effective after

appellant was convicted but prior to the date of his sentencing

hearing.   The facts as stated in the panel majority and dissent

are complete and need not be restated here.
     *
      Justice Koontz participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     1
      See Awkard v. Commonwealth, 19 Va. App. 605, 454 S.E.2d 18
(1995).
     Upon rehearing en banc, we hold that whether the felony or

misdemeanor punishment should have been imposed in this case was

a matter committed to the discretionary power of the trial court.

Because the sentence given was within the statutory limits

prescribed by Code § 46.2-357, to which appellant pled guilty, we

find no abuse of discretion.

     Accordingly, the judgment of the trial court is affirmed.

                                             Affirmed.




                               - 2 -
Fitzpatrick, J., with whom Benton, Koontz and Elder, J.J., join,
  dissenting.


    I would reverse appellant's felony conviction and remand for

re-sentencing for the reasons stated in the majority opinion of

the panel decision.     See Awkard v. Commonwealth, 19 Va. App. 605,

454 S.E.2d 18 (1995).




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