Here’s a fun procedural question for appellate geeks: Can an equally divided Court of Appeals, sitting en banc, reverse a judgment previously entered by a panel of that court?
It seems like the answer ought to be a simple no; when an appellate court is evenly divided, the default result is affirmance. But in Conley v. Commonwealth, things get a little complicated.
Conley was convicted of two misdemeanor DUIs, then a third felony offense, DUI after being twice convicted of the same offense within 10 years. His direct appeals foundered, but he was eventually able to habeas his way out of the second conviction.
That left a problem: Conley’s third-offense DUI was really a second offense, even though he’d suffered the heightened penalties.
Conley filed a petition for a writ of actual innocence in the Court of Appeals of Virginia.
A divided panel granted his petition and remanded the case for resentencing. The Commonwealth asked for a rehearing en banc.
The Court of Appeals heard argument sitting en banc with 10 judges, and split evenly. It entered an order stating: “Upon rehearing en banc, the petition for writ of actual innocence is dismissed without opinion by an equally divided Court. Accordingly, the order previously entered by a panel of this Court . . . is withdrawn.”
What a minute . . . isn’t that the opposite of what’s supposed to happen?