ORNDOFF v. COMMONWEALTH (2024)

By opinion dated June 6, 2023, a panel of this Court, with one judge dissenting, reversed the trial court's judgment of summary contempt and vacated the conviction, holding that the trial court violated the defendant's due process rights in exercising the power of summary contempt because the trial judge did not personally observe in open court all the essential elements of the alleged contemptible conduct of testifying while voluntarily intoxicated. See Orndoff v. Commonwealth, 77 Va. App. 766, 887 S.E.2d 774 (2023). We granted the Commonwealth's petition for rehearing en banc and stayed the mandate of that decision.

Upon rehearing en banc, the judgment of the trial court is affirmed without opinion by an evenly divided Court. See Code § 17.1-402(E). Accordingly, the opinion previously rendered by a panel of this Court on June 6, 2023 is withdrawn and the mandate entered on that date is vacated. The appellant must pay to the Commonwealth of Virginia $150 damages.

Chief Judge Decker, Judges Beales, O'Brien, AtLee, Malveaux, Athey, Fulton, and White voted to affirm the judgment of the trial court.

Judges Huff, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, and Callins voted to reverse said judgment.

The Commonwealth is entitled to recover of the appellant the fees and costs to be assessed by the clerk of the trial court.

This order will be published and certified to the trial court.