July 18, 2000
Professor Richard A. Williamson
College of William and Mary
Williamsburg, Virginia 23185
Mr. David M. George
Government Relations Contracts
610 Opperman Drive
Eagan, Minnesota 55123
Elizabeth Oyster, Esq.
Geronimo Development Corp.
606 25th Avenue, South
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
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.
Marty K. P. Ring
David Edward Hartigan, III,
Record No. 1002-98-4
Circuit Court No. 93324
Commonwealth of Virginia,
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
A jury convicted David Edward Hartigan, III, of grand
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
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
Cynthia L. McCoy, Clerk