David Edward Hartigan, III v. Commonwealth of VA

Court of Appeals of Virginia

David Edward Hartigan, III v. Commonwealth of VA

531 S.E.2d 63, 32 Va. App. 873, 2000 Va. App. LEXIS 528

CourtCourt of Appeals of Virginia

DecidedJuly 18, 2000

Docket1002984

StatusPublished

Cited by4 cases

This text of 531 S.E.2d 63 (David Edward Hartigan, III v. Commonwealth of VA) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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David Edward Hartigan, III v. Commonwealth of VA, 531 S.E.2d 63, 32 Va. App. 873, 2000 Va. App. LEXIS 528 (Va. Ct. App. 2000).

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Opinion

UPON A REHEARING EN BANC

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 self-incrimination 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, 260 Va. 104, 532 S.E.2d 629 (2000), holding that, as to those offenses to which Code § 53.1-165.1 applies, “juries shall be instructed, as a matter of law, on the abolition of parole for non-capital felony offenses *874 committed on or after January 1, 1995 pursuant to Code § 53.1-165.1.” Id. at-, 532 S.E.2d at 634. 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.

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UPON A REHEARING EN BANC

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 self-incrimination 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, 260 Va. 104, 532 S.E.2d 629 (2000), holding that, as to those offenses to which Code § 53.1-165.1 applies, “juries shall be instructed, as a matter of law, on the abolition of parole for non-capital felony offenses *874 committed on or after January 1, 1995 pursuant to Code § 53.1-165.1.” Id. at-, 532 S.E.2d at 634. 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.

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Bluebook (online)

531 S.E.2d 63, 32 Va. App. 873, 2000 Va. App. LEXIS 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-edward-hartigan-iii-v-commonwealth-of-va-vactapp-2000.

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