David Edward Hartigan, III v Commonwealth of VA
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July 18, 2000 Professor Richard A. Williamson College of William and Mary Williamsburg, Virginia 23185 Mr. David M. George Government Relations Contracts D5-20 West Group 610 Opperman Drive Eagan, Minnesota 55123 Elizabeth Oyster, Esq. Geronimo Development Corp. 606 25th Avenue, South Suite 206 St. Cloud, Minnesota 56301 Mead Data Central, Inc. Legal Data Collections 8891 Gander Creek Drive Miamisburg, Ohio 45342 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 the above-referenced case on that this order be published your cooperation in ensuring copy of an order entered by this Court in July 18, 2000. The Court has directed in the appropriate volumes. I appreciate that publication is accomplished. Sincerely, Marty K. P. Ring Deputy Clerk MKPR:mfr Enclosure Tuesday 18th July, 2000. David Edward Hartigan, III, against Appellant, 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 selfincrimination 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 § 53.1165.1 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 § 53.1165.1." 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
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