David Edward Hartigan, III v. Commonwealth of VA

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.