**RULE 120
Decision, but the motion was subsequently denied 4 by the MTCC on 19
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 192164               October 12, 2011
ANSELMO DE LEON CUYO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, J.:
Before us is a Petition for Review under Rule 45 assailing the Order 1 issued
by Branch 28 of the Regional Trial Court of San Fernando City, La Union, in
Special Civil Action Case No. 0001-10.
The antecedent facts are as follows:
Petitioner Anselmo Cuyo and Alejo Cuyo are estranged brothers. Petitioner
filed a complaint for illegal possession of firearms against Alejo. On 20
November 2003, petitioner appeared before Judge Samuel H. Gaerlan of
the Regional Trial Court (RTC), Branch 26, San Fernando City, La Union with
regard to the application for a search warrant by the Criminal Investigation
and Detective Group (CIDG) for the search of the house of Alejo, and, in
the course of the proceedings, made untruthful statements under oath.
Consequently, Alejo filed a complaint for perjury against petitioner.
On 25 August 2009, Branch 1 of the Municipal Trial Court in Cities (MTCC)
in San Fernando City, La Union, found petitioner guilty beyond reasonable
doubt of the offense of perjury under Article 183 of the Revised Penal Code
and sentenced him to imprisonment of four (4) months and one (1) day to
one (1) year. He was likewise ordered to pay private complainant Alejo
Cuyo the amount of ₱10,000 for attorney’s fees and litigation
expenses.2 Petitioner was not present during the promulgation of the
judgment and was represented by his counsel instead.
On 28 August 2009, petitioner filed a Motion for Reconsideration 3 of the
October 2009.
Petitioner received the Order of the MTCC denying his Motion for
Reconsideration on 23 October 2009. He subsequently filed a Motion for
Probation5 on 5 November 2009.
On 6 January 2010, the MTCC issued an Order 6 denying petitioner’s latter
motion on the ground that it had been filed beyond the reglementary
period of fifteen (15) days as provided by Section 4 of Presidential Decree
No. 968, as amended, or the Probation Law of 1976. 7 The reckoning date
used by the MTCC in computing the 15 day period was the day of
promulgation on 25 August 2009, tolled by the period from the filing of the
Motion for Reconsideration to the receipt of the Order denying the motion
on 23 October 2009. Thus, the MTCC stated:
It is note worthy (sic) that four (4) days has (sic) lapsed from August 25,
2009 when the decision was entered in the criminal docket of this court
and the time the motion for reconsideration was filed.
Since the period to apply for probation as provided for by law in (sic) only
fifteen (15) days, the accused has only the remaining eleven (11) days of
the fifteen (15) days reglamentary period to apply for probation. The 11
day period from October 23, 2009 when he received the denial of his
motion ended on November 3, 2009.
The Motion for Probation was received by the court on November 5, 2009
when the decision has already become Final and Executory as of
November 3, 2009.
On 7 January 2010, petitioner moved for the reconsideration 8 of the latter
order, asking for a liberal interpretation of the rules with regard to the
computation of the period for applying for probation. He also filed on 10
January 2010 a Supplemental Motion 9 to the Motion for Reconsideration
praying for the deferment of the issuance of the Warrant of Arrest or the
recall of the warrant if one had already been issued.
The MTCC, however, denied the motion on 3 February 2010. Reference
was made to Neypes v. Court of Appeals, 10 wherein the appeal period was
sought to be standardized, by establishing the rule that a fresh period of 15
days was allowed within which to file a notice of appeal, counted from the
receipt of the order dismissing a motion for new trial or a motion for
reconsideration. The MTCC, however, did not view Neypes as applicable to
the case of petitioner. It believed that Neypes applied only to Rules 40, 42,
43 and 45 appeals and not to a Rule 122 appeal, all under the Rules of
Court.
Petitioner filed a Petition11 under Rule 65 before the Regional Trial Court
(RTC) of San Fernando City, La Union alleging that the MTCC had
committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it denied his Motion for Probation. He asserted that the
"fresh period rule" established in Neypes should also be applied to criminal
cases. Petitioner prayed for a liberal construction and application of the
rules. He also prayed that the RTC stay the execution of the Decision dated
25 August 2009, and that it recall the warrant of arrest issued pending the
resolution of the issues.
On 26 April 2010, the RTC denied the Petition and ruled that the
application period had lapsed when petitioner neither surrendered nor
filed a motion for leave to avail himself of the remedies under the Rules of
Court. In addition, the RTC ruled that petitioner failed to implead private
complainant Alejo Cuyo in violation of Rule 65, Section 5. This rule
mandates that petitioner should join as private respondent the person
interested in sustaining the proceedings of the court.
Petitioner filed the present Rule 45 Petition for Review, assailing the Order
of the RTC. He contends that the RTC erred in computing the 15-day period
provided in the Probation Law; and in dismissing the petition on
procedural issues without determining whether petitioner is entitled to
avail himself of the benefits of probation.
We find some merit in the petition, but only with respect to the additional
ground for dismissal of the certiorari petition cited by the RTC – the failure
to implead private complainant as a respondent in the Petition for
Certiorari filed before the RTC. We uphold the rest of the RTC Decision,
and in doing so, fully affirm its dispositive portion.
The RTC held that petitioner failed to observe Rule 65, Sec. 5, which states:
Respondents and costs in certain cases. – When the petition filed relates to
the acts or omissions of a judge, court, quasi-judicial agency, tribunal,
corporation, board, officer or person, the petitioner shall join, as private
respondent or respondents with such public respondent or respondents,
the person or persons interested in sustaining the proceedings in the
court; and it shall be the duty of such private respondents to appear and
defend, both in his or their own behalf and in behalf of the public
respondent or respondents affected by the proceedings, and the costs
awarded in such proceedings in favor of the petitioner shall be against the
private respondents only, and not against the judge, court, quasi-judicial
agency, tribunal, corporation, board, officer or person impleaded as public
respondent or respondents.
Unless otherwise specifically directed by the court where the petition is
pending, the public respondents shall not appear in or file an answer or
comment to the petition or any pleading therein. If the case is elevated to
a higher court by either party, the public respondent shall be included
therein as nominal parties. However, unless otherwise specifically directed
by the court, they shall not appear of participate in the proceedings
therein.
While it may be correct to say that petitioner failed to comply with the rule
cited above, it would not be correct to dismiss the petition based on this
provision. Rule 3, Sec. 11 states that neither misjoinder nor non-joinder of
parties is a ground for the dismissal of an action. Thus, the trial court
should have ordered petitioner to add private complainant as a
respondent to the case.
Nevertheless, we agree with the RTC that the Motion for Probation was
filed out of time.
Sec. 6 of Rule 120 of the Rules of Court provides:
Promulgation of judgment. – The judgment is promulgated by reading it in
the presence of the accused and any judge of the Court in which it was
rendered. However, if the conviction is for a light offense, the judgment
may be pronounced in the presence of his counsel or representative.
When the judge is absent or outside the province or city, the judgment
may be promulgated by the clerk of court.
x x x           x x x          x x x
In case the accused fails to appear at the scheduled date of promulgation
of judgment despite notice, the promulgation shall be made by recording
the judgement in the criminal docket and serving him a copy thereof at his
last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear
was without justifiable cause, he shall lose the remedies available in these
Rules against the judgment and the court shall order his arrest. Within
fifteen (15) days from promulgation of judgment, however, the accused
may surrender and file a motion for leave of court to avail of these
remedies. He shall state the reasons for his absence at the scheduled
promulgation and if he proves that his absence was for a justifiable cause,
he shall be allowed to avail of said remedies within fifteen (15) days from
notice. (Emphasis supplied.)
Petitioner was charged with and found guilty of perjury. He was sentenced
to suffer imprisonment of 4 months and 1 day to 1 year, a period which is
considered as a correctional penalty. Under Article 9 of the Revised Penal
Code, light felonies are those infractions of law for the commission of
which the penalty of arresto menor (one to thirty days of imprisonment) or
a fine not exceeding two hundred pesos (₱200), or both are imposable.
Thus, perjury is not a light felony or offense contemplated by Rule 120,
Sec. 6. It was therefore mandatory for petitioner to be present at the
promulgation of the judgment.
To recall, despite notice, petitioner was absent when the MTCC
promulgated its judgment on 25 August 2009. Pursuant to Rule 120, Sec. 6,
it is only when the accused is convicted of a light offense that a
promulgation may be pronounced in the presence of his counsel or
representative. In case the accused failed to appear on the scheduled date
of promulgation despite notice, and the failure to appear was without
justifiable cause, the accused shall lose all the remedies available in the
Rules against the judgment. One such remedy was the Motion for
Reconsideration of the judgment of the MTCC filed by petitioner on 28
August 2009. Absent a motion for leave to avail of the remedies against
the judgment, the MTCC should not have entertained petitioner’s Motion
for Reconsideration. Thus, petitioner had only 15 days from 25 August
2009 or until 9 September 2009 to file his Motion for Probation. The MTCC
thus committed grave abuse of discretion when it entertained the motion
instead of immediately denying it.
In People of the Philippines v. De Grano,12 we stated:
When the Decision dated April 25, 2002 was promulgated, only Estanislao
Lacaba was present.1avvphi1 Subsequently thereafter, without
surrendering and explaining the reasons for their absence, Joven,
Armando, and Domingo joined Estanislao in their Joint Motion for
Reconsideration. In blatant disregard of the Rules, the RTC not only failed
to cause the arrest of the respondents who were at large, it also took
cognizance of the joint motion.
The RTC clearly exceeded its jurisdiction when it entertained the joint
Motion for Reconsideration with respect to the respondents who were at
large. It should have considered the joint motion as a motion for
reconsideration that was solely filed by Estanislao. Being at large, Joven
and Domingo have not regained their standing in court. Once an accused
jumps bail or flees to a foreign country, or escapes from prison or
confinement, he loses his standing in court; and unless he surrenders or
submits to the jurisdiction of the court, he is deemed to have waived any
right to seek relief from the court. (Emphasis supplied.)
Petitioner asserts that his failure to appear during the promulgation was
for a justifiable cause. He alleges that he was on board an international
vessel as a seaman at the time of the promulgation. He further alleges that
the MTCC was informed of this fact. He insists that his absence was
justified, thus exempting him from the application of Rule 120, Sec. 6.

Petitioner, however, did not file a motion for leave to avail himself of the
remedies prior to filing his Motion for Reconsideration. The hearing on the
motion for leave would have been the proper opportunity for the parties
to allege and contest whatever cause prevented petitioner from appearing
on 25 August 2009, and whether that cause was indeed justifiable. If
granted, petitioner would have been allowed to avail himself of other
remedies under the Rules of Court, including a motion for reconsideration.

Moreover, in his Reply13 filed on 14 October 2010, petitioner belatedly

questions the propriety of the promulgation. In so doing, petitioner is
barred by estoppel for failing to raise the issue at the earliest possible
opportunity, that is, when the case was still pending with the MTCC.

As a final point, while we held in Yu v. Samson-Tatad 14 that the rule in

Neypes is also applicable to criminal cases regarding appeals from
convictions in criminal cases under Rule 122 of the Rules of Court,
nevertheless, the doctrine is not applicable to this case, considering that
petitioner’s Motion for Probation was filed out of time.

WHEREFORE, in view of foregoing, the Petition is DENIED. The Order issued

by the Regional Trial Court in Special Civil Action Case No. 0001-10 is
AFFIRMED.

SO ORDERED.

EN BANC
August 15, 2017
G.R. No. 226679
SALVADOR ESTIPONA, JR. y ASUELA, Petitioner,
vs.
HON. FRANK E. LOBRIGO, Presiding Judge of the Regional Trial Court,
Branch 3, Legazpi City, Albay, and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
PERALTA, J.:
Challenged in this petition for certiorari and prohibition1 is the
constitutionality of Section 23 of Republic Act (R.A.) No. 9165, or
the "Comprehensive Dangerous Drugs Act of 2002, "2 which provides:
SEC 23. Plea-Bargaining Provision. - Any person charged under any
provision of this Act regardless of the imposable penalty shall not be
allowed to avail of the provision on plea-bargaining. 3
The facts are not in dispute.
Petitioner Salvador A. Estipona, Jr. (Estipona) is the accused in Criminal
Case No. 13586 for violation of Section 11, Article II of R.A. No.
9165 (Possession of Dangerous Drugs). The Information alleged:
That on or about the 21st day of March, 2016, in the City of Legazpi,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, not being lawfully authorized to possess or otherwise use
any regulated drug and without the corresponding license or prescription,
did then and there, willfully, unlawfully and feloniously have, in his
possession and under his control and custody, one (1) piece heat-sealed
transparent plastic sachet marked as VOP 03/21/16- l G containing 0.084
[gram] of white crystalline substance, which when examined were found to
be positive for Methamphetamine Hydrocloride (Shabu), a dangerous
drug.
CONTRARY TO LAW.4
On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter
into a Plea Bargaining Agreement, 5 praying to withdraw his not guilty plea
and, instead, to enter a plea of guilty for violation of Section 12, Article II of
R.A. No. 9165 (Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs) with a penalty of rehabilitation in view
of his being a first-time offender and the minimal quantity of the
dangerous drug seized in his possession. He argued that Section 23 of R.A.
No. 9165 violates: (1) the intent of the law expressed in paragraph 3,
Section 2 thereof; (2) the rule-making authority of the Supreme Court
under Section 5(5), Article VIII of the 1987 Constitution; and (3) the
principle of separation of powers among the three equal branches of the
government.
In its Comment or Opposition 6 dated June 27, 2016, the prosecution
moved for the denial of the motion for being contrary to Section 23 of R.A.
No. 9165, which is said to be justified by the Congress' prerogative to
choose which offense it would allow plea bargaining. Later, in a Comment
or Opposition7 dated June 29, 2016, it manifested that it "is open to the
Motion of the accused to enter into plea bargaining to give life to the
intent of the law as provided in paragraph 3, Section 2 of [R.A. No.] 9165,
however, with the express mandate of Section 23 of [R.A. No.] 9165
prohibiting plea bargaining, [it] is left without any choice but to reject the
proposal of the accused."
On July 12, 2016, respondent Judge Frank E. Lobrigo of the Regional Trial
Court (RTC), Branch 3, Legazpi City, Albay, issued an Order denying
Estipona's motion. It was opined:
The accused posited in his motion that Sec. 23 of RA No. 9165, which
prohibits plea bargaining, encroaches on the exclusive constitutional
power of the Supreme Court to promulgate rules of procedure because
plea bargaining is a "rule of procedure." Indeed, plea bargaining forms part
of the Rules on Criminal Procedure, particularly under Rule 118, the rule on
pre-trial conference. It is only the Rules of Court promulgated by the
Supreme Court pursuant to its constitutional rule-making power that
breathes life to plea bargaining. It cannot be found in any statute.
Without saying so, the accused implies that Sec. 23 of Republic Act No.
9165 is unconstitutional because it, in effect, suspends the operation of
Rule 118 of the Rules of Court insofar as it allows plea bargaining as part of
the mandatory pre-trial conference in criminal cases.
The Court sees merit in the argument of the accused that it is also the
intendment of the law, R.A. No. 9165, to rehabilitate an accused of a drug
offense. Rehabilitation is thus only possible in cases of use of illegal drugs
because plea bargaining is disallowed. However, by case law, the Supreme
Court allowed rehabilitation for accused charged with possession of
paraphernalia with traces of dangerous drugs, as held in People v.
Martinez, G.R. No. 191366, 13 December 2010. The ruling of the Supreme
Court in this case manifested the relaxation of an otherwise stringent
application of Republic Act No. 9165 in order to serve an intent for the
enactment of the law, that is, to rehabilitate the offender.
Within the spirit of the disquisition in People v. Martinez, there might be
plausible basis for the declaration of Sec. 23 of R.A. No. 9165, which bars
plea bargaining as unconstitutional because indeed the inclusion of the
provision in the law encroaches on the exclusive constitutional power of
the Supreme Court.
While basic is the precept that lower courts are not precluded from
resolving, whenever warranted, constitutional questions, the Court is not
unaware of the admonition of the Supreme Court that lower courts must
observe a becoming modesty in examining constitutional questions. Upon
which admonition, it is thus not for this lower court to declare Sec. 23 of
R.A. No. 9165 unconstitutional given the potential ramifications that such
declaration might have on the prosecution of illegal drug cases pending
before this judicial station.8
Estipona filed a motion for reconsideration, but it was denied in an
Order9 dated July 26, 2016; hence, this petition raising the issues as
follows:
I.
WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165, WHICH PROHIBITS
PLEA BARGAINING IN ALL VIOLATIONS OF THE SAID LAW, IS
UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE CONSTITUTIONAL
RIGHT TO EQUAL PROTECTION OF THE LAW.
II.
WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165 IS UNCONSTITUTIONAL
AS IT ENCROACHED UPON THE POWER OF THE SUPREME COURT TO
PROMULGATE RULES OF PROCEDURE.
III.
WHETHER THE REGIONAL TRIAL COURT, AS PRESIDED BY HON. FRANK E.
LOBRIGO, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO DECLARE
SECTION 23 OF REPUBLIC ACT NO. 9165 AS UNCONSTITUTIONAL.10
We grant the petition.
PROCEDURAL MATTERS
The People of the Philippines, through the Office of the Solicitor
General (OSG), contends that the petition should be dismissed outright for
being procedurally defective on the grounds that: (1) the Congress should
have been impleaded as an indispensable party; (2) the constitutionality of
Section 23 of R.A. No. 9165 cannot be attacked collaterally; and (3) the
proper recourse should have been a petition for declaratory relief before
this Court or a petition for certiorari before the RTC. Moreover, the OSG
argues that the petition fails to satisfy the requisites of judicial review
because: (1) Estipona lacks legal standing to sue for failure to show direct
injury; (2) there is no actual case or controversy; and (3) the
constitutionality of Section 23 of R.A. No. 9165 is not the lis mota of the
case.
On matters of technicality, some points raised by the OSG maybe
correct.1âwphi1 Nonetheless, without much further ado, it must be
underscored that it is within this Court's power to make exceptions to the
rules of court. Under proper conditions, We may permit the full and
exhaustive ventilation of the parties' arguments and positions despite the
supposed technical infirmities of a petition or its alleged procedural flaws.
In discharging its solemn duty as the final arbiter of constitutional issues,
the Court shall not shirk from its obligation to determine novel issues, or
issues of first impression, with far-reaching implications. 11
Likewise, matters of procedure and technicalities normally take a backseat
when issues of substantial and transcendental importance are
present.12 We have acknowledged that the Philippines' problem on illegal
drugs has reached "epidemic," "monstrous," and "harrowing"
proportions,13 and that its disastrously harmful social, economic, and
spiritual effects have broken the lives, shattered the hopes, and destroyed
the future of thousands especially our young citizens. 14 At the same time,
We have equally noted that "as urgent as the campaign against the drug
problem must be, so must we as urgently, if not more so, be vigilant in the
protection of the rights of the accused as mandated by the Constitution x x
x who, because of excessive zeal on the part of the law enforcers, may be
unjustly accused and convicted."15 Fully aware of the gravity of the drug
menace that has beset our country and its direct link to certain crimes, the
Court, within its sphere, must do its part to assist in the all-out effort to
lessen, if not totally eradicate, the continued presence of drug lords,
pushers and users.16
Bearing in mind the very important and pivotal issues raised in this
petition, technical matters should not deter Us from having to make the
final and definitive pronouncement that everyone else depends for
enlightenment and guidance.17 When public interest requires, the Court
may brush aside procedural rules in order to resolve a constitutional
issue.18
x x x [T]he Court is invested with the power to suspend the application of
the rules of procedure as a necessary complement of its power to
promulgate the same. Barnes v. Hon. Quijano Padilla discussed the
rationale for this tenet, viz. :
Let it be emphasized that the rules of procedure should be viewed as mere
tools designed to facilitate the attainment of justice. Their strict and rigid
application, which would result in technicalities that tend to frustrate
rather than promote substantial justice, must always be eschewed. Even
the Rules of Court reflect this principle. The power to suspend or even
disregard rules can be so pervasive and compelling as to alter even that
which this Court itself has already declared to be final, x x x.
The emerging trend in the rulings of this Court is to afford every party
litigant the amplest opportunity for the proper and just determination of
his cause, free from the constraints of technicalities. Time and again, this
Court has consistently held that rules must not be applied rigidly so as not
to override substantial justice. 19
SUBSTANTIVE ISSUES
Rule-making power of the Supreme
Court under the 1987 Constitution
Section 5(5), A1iicle VIII of the 1987 Constitution explicitly provides:
Sec. 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by the Supreme Court.
The power to promulgate rules of pleading, practice and procedure is now
Our exclusive domain and no longer shared with the Executive and
Legislative departments.20 In Echegaray v. Secretary of Justice, 21 then
Associate Justice (later Chief Justice) Reynato S. Puno traced the history of
the Court's rule-making power and highlighted its evolution and
development.
x x x It should be stressed that the power to promulgate rules of pleading,
practice and procedure was granted by our Constitutions to this Court to
enhance its independence, for in the words of Justice Isagani Cruz "without
independence and integrity, courts will lose that popular trust so essential
to the maintenance of their vigor as champions of justice." Hence, our
Constitutions continuously vested this power to this Court for it enhances
its independence. Under the 1935 Constitution, the power of this Court to
promulgate rules concerning pleading, practice and procedure was
granted but it appeared to be co-existent with legislative power for it was
subject to the power of Congress to repeal, alter or supplement. Thus, its
Section 13, Article VIII provides:
"Sec. 13. The Supreme Court shall have the power to promulgate rules
concerning pleading, practice and procedure in all courts, and the
admission to the practice of law. Said rules shall be uniform for all courts of
the same grade and shall not diminish, increase, or modify substantive
rights. The existing laws on pleading, practice and procedure are hereby
repealed as statutes, and are declared Rules of Court, subject to the power
of the Supreme Court to alter and modify the same. The Congress shall
have the power to repeal, alter or supplement the rules concerning
pleading, practice and procedure, and the admission to the practice of law
in the Philippines."
The said power of Congress, however, is not as absolute as it may appear
on its surface. In In re: Cunanan Congress in the exercise of its power to
amend rules of the Supreme Court regarding admission to the practice of
law, enacted the Bar Flunkers Act of 1953 which considered as a passing
grade, the average of 70% in the bar examinations after July 4, 1946 up to
August 1951 and 71 % in the 1952 bar examinations. This Court struck
down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held
that "x x x the disputed law is not a legislation; it is a judgment - a
judgment promulgated by this Court during the aforecited years affecting
the bar candidates concerned; and although this Court certainly can revoke
these judgments even now, for justifiable reasons, it is no less certain
that only this Court, and not the legislative nor executive department, that
may do so. Any attempt on the part of these departments would be a clear
usurpation of its function, as is the case with the law in question." The
venerable jurist further ruled: "It is obvious, therefore, that the ultimate
power to grant license for the practice of law belongs exclusively to this
Court, and the law passed by Congress on the matter is of permissive
character, or as other authorities say, merely to fix the minimum
conditions for the license." By its ruling, this Court qualified the absolutist
tone of the power of Congress to "repeal, alter or supplement the rules
concerning pleading, practice and procedure, and the admission to the
practice of law in the Philippines.
The ruling of this Court in In re Cunanan was not changed by the 1973
Constitution. For the 1973 Constitution reiterated the power of this Court
"to promulgate rules concerning pleading, practice and procedure in all
courts, x x x which, however, may be repealed, altered or supplemented by
the Batasang Pambansa x x x." More completely, Section 5(2)5 of its Article
X provided:
xxxx
"Sec. 5. The Supreme Court shall have the following powers.
xxxx
(5) Promulgate rules concerning pleading, practice, and procedure in all
courts, the admission to the practice of law, and the integration of the Bar,
which, however, may be repealed, altered, or supplemented by the
Batasang Pambansa. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish, increase, or modify
substantive rights."
Well worth noting is that the 1973 Constitution further strengthened the
independence of the judiciary by giving to it the additional power to
promulgate rules governing the integration of the Bar.
The 1987 Constitution molded an even stronger and more independent
judiciary. Among others, it enhanced the rule making power of this
Court. Its Section 5(5), Article VIII provides:
xxxx
"Section 5. The Supreme Court shall have the following powers:
xxx
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by the Supreme Court. "
The rule making power of this Court was expanded. This Court for the first
time was given the power to promulgate rules concerning the protection
and enforcement of constitutional rights. The Court was also granted for
the .first time the power to disapprove rules of procedure of special courts
and quasi-judicial bodies. But most importantly, the 1987 Constitution took
away the power of Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure. In fine, the power to
promulgate rules of pleading, practice and procedure is no longer shared
by this Court with Congress, more so with the Executive. x x x. 22
Just recently, Carpio-Morales v. Court of Appeals (Sixth Division) 23 further
elucidated:
While the power to define, prescribe, and apportion the jurisdiction of the
various courts is, by constitutional design, vested unto Congress, the
power to promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court. Section 5 (5), Article VIII of the
1987 Constitution reads:
xxxx
In Echegaray v. Secretary of Justice (Echegaray), the Court traced the
evolution of its rule-making authority, which, under the 1935 and 1973
Constitutions, had been priorly subjected to a power-sharing scheme with
Congress. As it now stands, the 1987 Constitution textually altered the old
provisions by deleting the concurrent power of Congress to amend the
rules, thus solidifying in one body the Court's rule-making powers, in line
with the Framers' vision of institutionalizing a " [ s] tronger and more
independent judiciary."
The records of the deliberations of the Constitutional Commission would
show that the Framers debated on whether or not the Court's rulemaking
powers should be shared with Congress. There was an initial suggestion to
insert the sentence "The National Assembly may repeal, alter, or
supplement the said rules with the advice and concurrence of the Supreme
Court," right after the phrase "Promulgate rules concerning the protection
and enforcement of constitutional rights, pleading, practice, and procedure
in all courts, the admission to the practice of law, the integrated bar, and
legal assistance to the underprivileged[,]" in the enumeration of powers of
the Supreme Court. Later, Commissioner Felicitas S. Aquino proposed to
delete the former sentence and, instead, after the word
"[under]privileged," place a comma(,) to be followed by "the phrase with
the concurrence of the National Assembly." Eventually, a compromise
formulation was reached wherein (a) the Committee members agreed to
Commissioner Aquino's proposal to delete the phrase "the National
Assembly may repeal, alter, or supplement the said rules with the advice
and concurrence of the Supreme Court" and (b) in turn, Commissioner
Aquino agreed to withdraw his proposal to add "the phrase with the
concurrence of the National Assembly." The changes were approved,
thereby leading to the present lack of textual reference to any form of
Congressional participation in Section 5 (5), Article
VIII, supra. Theprevailing consideration was that "both bodies, the
Supreme Court and the Legislature, have their inherent powers."
Thus, as it now stands, Congress has no authority to repeal, alter, or
supplement rules concerning pleading, practice, and procedure.x x x. 24
The separation of powers among the three co-equal branches of our
government has erected an impregnable wall that keeps the power to
promulgate rules of pleading, practice and procedure within the sole
province of this Court. 25 The other branches trespass upon this prerogative
if they enact laws or issue orders that effectively repeal, alter or modify
any of the procedural rules promulgated by the Court. 26 Viewed from this
perspective, We have rejected previous attempts on the part of the
Congress, in the exercise of its legislative power, to amend the Rules of
Court (Rules), to wit:
1. Fabian v. Desierto27 -Appeal from the decision of the Office of the
Ombudsman in an administrative disciplinary case should be taken to the
Court of Appeals under the provisions of Rule 43 of the Rules instead of
appeal by certiorari under Rule 45 as provided in Section 27 of R.A. No.
6770.
2. Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative,
Inc. 28 - The Cooperative Code provisions on notices cannot replace the
rules on summons under Rule 14 of the Rules.
3. RE: Petition for Recognition of the Exemption of the GSIS from Payment
of Legal Fees; 29 Baguio Market Vendors Multi-Purpose Cooperative
(BAMARVEMPCO) v. Hon. Judge Cabato-Cortes;30 In Re: Exemption of the
National Power Corporation from Payment of Filing/Docket
Fees; 31 and Rep. of the Phils. v. Hon. Mangotara, et al. 32 - Despite
statutory provisions, the GSIS, BAMARVEMPCO, and NPC are not exempt
from the payment of legal fees imposed by Rule 141 of the Rules.
4. Carpio-Morales v. Court of Appeals (Sixth Division)33 - The first paragraph
of Section 14 of R.A. No. 6770, which prohibits courts except the Supreme
Court from issuing temporary restraining order and/or writ of preliminary
injunction to enjoin an investigation conducted by the Ombudsman, is
unconstitutional as it contravenes Rule 58 of the Rules.
Considering that the aforesaid laws effectively modified the Rules, this
Court asserted its discretion to amend, repeal or even establish new rules
of procedure, to the exclusion of the legislative and executive branches of
government. To reiterate, the Court's authority to promulgate rules on
pleading, practice, and procedure is exclusive and one of the safeguards of
Our institutional independence.34
Plea bargaining in criminal cases
Plea bargaining, as a rule and a practice, has been existing in our
jurisdiction since July 1, 1940, when the 1940 Rules took effect. Section 4,
Rule 114 (Pleas) of which stated:
SEC. 4. Plea of guilty of lesser offense. - The defendant, with the consent of
the court and of the fiscal, may plead guilty of any lesser offense than that
charged which is necessarily included in the offense charged in the
complaint or information.
When the 1964 Rules became effective on January 1, 1964, the same
provision was retained under Rule 118 (Pleas).1âwphi1 Subsequently, with
the effectivity of the 1985 Rules on January 1, 1985, the provision on plea
of guilty to a lesser offense was amended. Section 2, Rule 116 provided:
SEC. 2. Plea of guilty to a lesser offense. - The accused with the consent of
the offended party and the fiscal, may be allowed by the trial court to
plead guilty to a lesser offense, regardless of whether or not it is
necessarily included in the crime charged, or is cognizable by a court of
lesser jurisdiction than the trial court. No amendment of the complaint or
information is necessary. (4a, R-118)
As well, the term "plea bargaining" was first mentioned and expressly
required during pre-trial. Section 2, Rule 118 mandated:
SEC. 2. Pre-trial conference; subjects. - The pre-trial conference shall
consider the following:
(a) Plea bargaining;
(b) Stipulation of facts;
(c) Marking for identification of evidence of the parties;
(d) Waiver of objections to admissibility of evidence; and
(e) Such other matters as will promote a fair and expeditious trial. (n)
The 1985 Rules was later amended. While the wordings of Section 2, Rule
118 was retained, Section 2, Rule 116 was modified in 1987. A second
paragraph was added, stating that "[a] conviction under this plea shall be
equivalent to a conviction of the offense charged for purposes of double
jeopardy."
When R.A. No. 8493 ("Speedy Trial Act of 1998 ') was enacted,35 Section 2,
Rule 118 of the Rules was substantially adopted. Section 2 of the law
required that plea bargaining and other matters 36 that will promote a fair
and expeditious trial are to be considered during pre-trial conference in all
criminal cases cognizable by the Municipal Trial Court, Municipal Circuit
Trial Court, Metropolitan Trial Court, Regional Trial Court, and the
Sandiganbayan.
Currently, the pertinent rules on plea bargaining under the
2000 Rules37 are quoted below:
RULE 116 (Arraignment and Plea):
SEC. 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with
the consent of the offended party and the prosecutor, may be allowed by
the trial court to plead guilty to a lesser offense which is necessarily
included in the offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser offense after
withdrawing his plea of not guilty. No amendment of the complaint or
information is necessary. (Sec. 4, Cir. 38-98)
RULE 118 (Pre-trial):
SEC. 1. Pre-trial; mandatory in criminal cases. - In all criminal cases
cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal
Circuit Trial Court, the court shall, after arraignment and within thirty (30)
days from the date the court acquires jurisdiction over the person of the
accused, unless a shorter period is provided for in special laws or circulars
of the Supreme Court, order a pre-trial conference to consider the
following:
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but
interposes a lawful defense; and
(f) such matters as will promote a fair and expeditious trial of the criminal
and civil aspects of the case. (Sec. 2 & 3, Cir. 38-98)
Plea bargaining is a rule of procedure
The Supreme Court's sole prerogative to issue, amend, or repeal
procedural rules is limited to the preservation of substantive
rights, i.e., the former should not diminish, increase or modify the
latter.38 "Substantive law is that part of the law which creates, defines and
regulates rights, or which regulates the right and duties which give rise to a
cause of action; that part of the law which courts are established to
administer; as opposed to adjective or remedial law, which prescribes the
method of enforcing rights or obtain redress for their invasions." 39 Fabian
v. Hon. Desierto40 laid down the test for determining whether a rule is
substantive or procedural in nature.
It will be noted that no definitive line can be drawn between those rules or
statutes which are procedural, hence within the scope of this Court's rule-
making power, and those which are substantive. In fact, a particular rule
may be procedural in one context and substantive in another. It is
admitted that what is procedural and what is substantive is frequently a
question of great difficulty. It is not, however, an insurmountable problem
if a rational and pragmatic approach is taken within the context of our own
procedural and jurisdictional system.
In determining whether a rule prescribed by the Supreme Court, for the
practice and procedure of the lower courts, abridges, enlarges, or modifies
any substantive right, the test is whether the rule really regulates
procedure, that is, the judicial process for enforcing rights and duties
recognized by substantive law and for justly administering remedy and
redress for a disregard or infraction of them. If the rule takes away a
vested right, it is not procedural. If the rule creates a right such as the right
to appeal, it may be classified as a substantive matter; but if it operates as
a means of implementing an existing right then the rule deals merely with
procedure.41
In several occasions, We dismissed the argument that a procedural rule
violates substantive rights. For example, in People v. Lacson, 42 Section 8,
Rule 117 of the Rules on provisional dismissal was held as a special
procedural limitation qualifying the right of the State to prosecute, making
the time-bar an essence of the given right or as an inherent part thereof,
so that its expiration operates to extinguish the right of the State to
prosecute the accused.43 Speaking through then Associate Justice Romeo J.
Callejo, Sr., the Court opined:
In the new rule in question, as now construed by the Court, it has fixed a
time-bar of one year or two years for the revival of criminal cases
provisionally dismissed with the express consent of the accused and with a
priori notice to the offended party. The time-bar may appear, on first
impression, unreasonable compared to the periods under Article 90 of the
Revised Penal Code. However, in fixing the time-bar, the Court balanced
the societal interests and those of the accused for the orderly and speedy
disposition of criminal cases with minimum prejudice to the State and the
accused. It took into account the substantial rights of both the State and of
the accused to due process. The Court believed that the time limit is a
reasonable period for the State to revive provisionally dismissed cases with
the consent of the accused and notice to the offended parties. The time-
bar fixed by the Court must be respected unless it is shown that the period
is manifestly short or insufficient that the rule becomes a denial of justice.
The petitioners failed to show a manifest shortness or insufficiency of the
time-bar.
The new rule was conceptualized by the Committee on the Revision of the
Rules and approved by the Court en banc primarily to enhance the
administration of the criminal justice system and the rights to due process
of the State and the accused by eliminating the deleterious practice of trial
courts of provisionally dismissing criminal cases on motion of either the
prosecution or the accused or jointly, either with no time-bar for the
revival thereof or with a specific or definite period for such revival by the
public prosecutor. There were times when such criminal cases were no
longer revived or refiled due to causes beyond the control of the public
prosecutor or because of the indolence, apathy or the lackadaisical
attitude of public prosecutors to the prejudice of the State and the accused
despite the mandate to public prosecutors and trial judges to expedite
criminal proceedings.
It is almost a universal experience that the accused welcomes delay as it
usually operates in his favor, especially if he greatly fears the
consequences of his trial and conviction. He is hesitant to disturb the
hushed inaction by which dominant cases have been known to expire.
The inordinate delay in the revival or refiling of criminal cases may impair
or reduce the capacity of the State to prove its case with the
disappearance or nonavailability of its witnesses. Physical evidence may
have been lost. Memories of witnesses may have grown dim or have
faded. Passage of time makes proof of any fact more difficult. The accused
may become a fugitive from justice or commit another crime. The longer
the lapse of time from the dismissal of the case to the revival thereof, the
more difficult it is to prove the crime.
On the other side of the fulcrum, a mere provisional dismissal of a criminal
case does not terminate a criminal case. The possibility that the case may
be revived at any time may disrupt or reduce, if not derail, the chances of
the accused for employment, curtail his association, subject him to public
obloquy and create anxiety in him and his family. He is unable to lead a
normal life because of community suspicion and his own anxiety. He
continues to suffer those penalties and disabilities incompatible with the
presumption of innocence. He may also lose his witnesses or their
memories may fade with the passage of time. In the long run, it may
diminish his capacity to defend himself and thus eschew the fairness of the
entire criminal justice system.
The time-bar under the new rule was fixed by the Court to excise the
malaise that plagued the administration of the criminal justice system for
the benefit of the State and the accused; not for the accused only.44
Also, We said in Jaylo, et al. v. Sandiganbayan, et al. 45 that Section 6, Rule
120 of the Rules, which provides that an accused who failed to appear at
the promulgation of the judgment of conviction shall lose the remedies
available against the judgment, does not take away substantive rights but
merely provides the manner through which an existing right may be
implemented.
Section 6, Rule 120, of the Rules of Court, does not take away per se the
right of the convicted accused to avail of the remedies under the Rules. It is
the failure of the accused to appear without justifiable cause on the
scheduled date of promulgation of the judgment of conviction that forfeits
their right to avail themselves of the remedies against the judgment.
It is not correct to say that Section 6, Rule 120, of the Rules of Court
diminishes or modifies the substantive rights of petitioners. It only works in
pursuance of the power of the Supreme Court to "provide a simplified and
inexpensive procedure for the speedy disposition of cases." This provision
protects the courts from delay in the speedy disposition of criminal cases -
delay arising from the simple expediency of nonappearance of the accused
on the scheduled promulgation of the judgment of conviction. 46
By the same token, it is towards the provision of a simplified and
inexpensive procedure for the speedy disposition of cases in all
courts47 that the rules on plea bargaining was introduced. As a way of
disposing criminal charges by agreement of the parties, plea bargaining is
considered to be an "important," "essential," "highly desirable," and
"legitimate" component of the administration of justice. 48 Some of its
salutary effects include:
x x x For a defendant who sees slight possibility of acquittal, the
advantages of pleading guilty and limiting the probable penalty are obvious
- his exposure is reduced, the correctional processes can begin
immediately, and the practical burdens of a trial are eliminated. For the
State there are also advantages - the more promptly imposed punishment
after an admission of guilt may more effectively attain the objectives of
punishment; and with the avoidance of trial, scarce judicial and
prosecutorial resources are conserved for those cases in which there is a
substantial issue of the defendant's guilt or in which there is substantial
doubt that the State can sustain its burden of proof. (Brady v. United
States, 397 U.S. 742, 752 [1970])
Disposition of charges after plea discussions x x x leads to prompt and
largely final disposition of most criminal cases; it avoids much of the
corrosive impact of enforced idleness during pretrial confinement for those
who are denied release pending trial; it protects the public from those
accused persons who are prone to continue criminal conduct even while
on pretrial release; and, by shortening the time between charge and
disposition, it enhances whatever may be the rehabilitative prospects of
the guilty when they are ultimately imprisoned. (Santobello v. New
York, 404 U.S. 257, 261 [1971])
The defendant avoids extended pretrial incarceration and the anxieties and
uncertainties of a trial; he gains a speedy disposition of his case, the
chance to acknowledge his guilt, and a prompt start in realizing whatever
potential there may be for rehabilitation. Judges and prosecutors conserve
vital and scarce resources. The public is protected from the risks posed by
those charged with criminal offenses who are at large on bail while
awaiting completion of criminal proceedings. (Blackledge v. Allison, 431
U.S. 63, 71 [1977])
In this jurisdiction, plea bargaining has been defined as "a process whereby
the accused and the prosecution work out a mutually satisfactory
disposition of the case subject to court approval." 49 There is give-and-take
negotiation common in plea bargaining. 50 The essence of the agreement is
that both the prosecution and the defense make concessions to avoid
potential losses.51 Properly administered, plea bargaining is to be
encouraged because the chief virtues of the system - speed, economy, and
finality - can benefit the accused, the offended party, the prosecution, and
the court.52
Considering the presence of mutuality of advantage, 53 the rules on plea
bargaining neither create a right nor take away a vested right. Instead, it
operates as a means to implement an existing right by regulating the
judicial process for enforcing rights and duties recognized by substantive
law and for justly administering remedy and redress for a disregard or
infraction of them.
The decision to plead guilty is often heavily influenced by the defendant's
appraisal of the prosecution's case against him and by the apparent
likelihood of securing leniency should a guilty plea be offered and
accepted.54 In any case, whether it be to the offense charged or to a lesser
crime, a guilty plea is a "serious and sobering occasion" inasmuch as it
constitutes a waiver of the fundamental rights to be presumed innocent
until the contrary is proved, to be heard by himself and counsel, to meet
the witnesses face to face, to bail (except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong), to be
convicted by proof beyond reasonable doubt, and not to be compelled to
be a witness against himself.55
Yet a defendant has no constitutional right to plea bargain. No basic rights
are infringed by trying him rather than accepting a plea of guilty; the
prosecutor need not do so if he prefers to go to trial. 56 Under the
present Rules, the acceptance of an offer to plead guilty is not a
demandable right but depends on the consent of the offended party 57 and
the prosecutor, which is a condition precedent to a valid plea of guilty to a
lesser offense that is necessarily included in the offense charged. 58 The
reason for this is that the prosecutor has full control of the prosecution of
criminal actions; his duty is to always prosecute the proper offense, not
any lesser or graver one, based on what the evidence on hand can
sustain.59
[Courts] normally must defer to prosecutorial decisions as to whom to
prosecute. The reasons for judicial deference are well known. Prosecutorial
charging decisions are rarely simple. In addition to assessing the strength
and importance of a case, prosecutors also must consider other tangible
and intangible factors, such as government enforcement priorities. Finally,
they also must decide how best to allocate the scarce resources of a
criminal justice system that simply cannot accommodate the litigation of
every serious criminal charge. Because these decisions "are not readily
susceptible to the kind of analysis the courts are competent to undertake,"
we have been "properly hesitant to examine the decision whether to
prosecute. "60
The plea is further addressed to the sound discretion of the trial court,
which may allow the accused to plead guilty to a lesser offense which is
necessarily included in the offense charged. The word may denotes an
exercise of discretion upon the trial court on whether to allow the accused
to make such plea.61 Trial courts are exhorted to keep in mind that a plea
of guilty for a lighter offense than that actually charged is not supposed to
be allowed as a matter of bargaining or compromise for the convenience of
the accused.62
Plea bargaining is allowed during the arraignment, the pre-trial, or even up
to the point when the prosecution already rested its case. 63 As regards plea
bargaining during the pre-trial stage, the trial court's exercise of discretion
should not amount to a grave abuse thereof.64 "Grave abuse of discretion"
is a capricious and whimsical exercise of judgment so patent and gross as
to amount to an evasion of a positive duty or a virtual refusal to perform a
duty enjoined by law, as where the power is exercised in an arbitrary and
despotic manner because of passion or hostility; it arises when a court or
tribunal violates the Constitution, the law or existing jurisprudence. 65
deliberation on whether or not to adopt the statutory provision in toto or a
qualified version thereof, We deem it proper to declare as invalid the
prohibition against plea bargaining on drug cases until and unless it is
made part of the rules of procedure through an administrative circular duly
issued for the purpose.
WHEREFORE, the petition for certiorari and prohibition is GRANTED.
Section 23 of Republic Act No. 9165 is declared unconstitutional for being
contrary to the rule-making authority of the Supreme Court under Section
5(5), Article VIII of the 1987 Constitution.
SO ORDERED.

If the accused moved to plead guilty to a lesser offense subsequent to a

bail hearing or after the prosecution rested its case, the rules allow such a
plea only when the prosecution does not have sufficient evidence to
establish the guilt of the crime charged. 66 The only basis on which the
prosecutor and the court could rightfully act in allowing change in the
former plea of not guilty could be nothing more and nothing less than the
evidence on record. As soon as the prosecutor has submitted a comment
whether for or against said motion, it behooves the trial court to
assiduously study the prosecution's evidence as well as all the
circumstances upon which the accused made his change of plea to the end
that the interests of justice and of the public will be served. 67 The ruling on
the motion must disclose the strength or weakness of the prosecution's
evidence.68 Absent any finding on the weight of the evidence on hand, the
judge's acceptance of the defendant's change of plea is improper and
irregular.69

On whether Section 23 of R.A. No.

9165 violates the equal protection
clause

At this point, We shall not resolve the issue of whether Section 23 of R.A.
No. 9165 is contrary to the constitutional right to equal protection of the
law in order not to preempt any future discussion by the Court on the
policy considerations behind Section 23 of R.A. No. 9165. Pending
 Assailed in this petition1 for review on certiorari under Rule 45 of the Rules
of Court are the Resolutions dated April 30, 2008 2 and August 1, 20083 of
the Court of Appeals (CA) in CA-G.R. SP No. 103224.

The antecedents—

Petitioners Police Inspector (P/Insp.) Edward Garrick Villena and Police

Officer 1 (PO1) Percival Doroja, together with PO2 Nicomedes Lambas (PO2
Lambas), PO3 Dan Fermalino (PO3 Fermalino), 4 Police Chief Inspector
Jovem C. Bocalbos, PO3 Reynaldo Macalinao (PO3 Macalinao), PO1 Alvaro
Yumang (PO1 Yumang), and Imelda Borcelis, were indicted for the crime of
robbery (extortion)5 before the Regional Trial Court (RTC), Branch 202, Las
Piñas City. The case was docketed as Criminal Case No. 05-0025.

After arraignment, where the accused all pled "not guilty," and pre-trial,
trial on the merits ensued. Petitioners failed to appear before the trial
court to adduce evidence in their defense. It was only PO3 Macalinao who
appeared before the court to present his evidence.

On August 29, 2007, the RTC rendered its decision 6 convicting petitioners,
together with PO2 Lambas, PO3 Fermalino, PO3 Macalinao, and PO1
Yumang, of the crime charged.

During the promulgation of judgment on September 3, 2007, petitioners

again failed to appear despite proper notices to them at their addresses of
Republic of the Philippines record. In the absence of petitioners, the promulgation was made pursuant
SUPREME COURT to paragraphs 4 and 5, Section 6, Rule 120 of the Revised Rules on Criminal
Manila Procedure. Consequently, the RTC issued warrants of arrest against them.
SECOND DIVISION
G.R. No. 184091               January 31, 2011 On October 11, 2007, petitioners, through their new counsel, Atty. William
EDWARD GARRICK VILLENA and PERCIVAL DOROJA, Petitioners, F. delos Santos, filed their separate notices of appeal before the RTC. In the
vs. said notices, they explained that they failed to attend the promulgation of
PEOPLE OF THE PHILIPPINES, NOMAR B. DEGERON, CHRISTIAN DANDAN, judgment because they did not receive any notice thereof because they
and ELIZABETH BORCELIS, Respondents. were transferred to another police station.7
DECISION
NACHURA, J.: In the Order8 dated November 20, 2007, the RTC denied due course to
petitioners’ notices of appeal. The RTC ratiocinated in this wise—
Case record shows that the Decision of the court dated August 29, 2007
was promulgated on September 3, 2007. The appropriate notices and
subpoenas were duly sent to the accused but [they were] returned with
the notation that they are no longer residing at their given address/es. In
the present case, all three accused raised the excuse that they were not
notified of the setting of the promulgation. The Court finds this ground
unmeritorious since the accused have the obligation to inform the Court of
the changes in their address in order that the orders, notices and other
court processes may be properly sent to them. In any case, the counsels on
record for the accused Macalinao, Doroja and Villena were duly notified of
the scheduled hearings and promulgation of judgment.
Moreover, with the non-appearance of the accused-movants during the
presentation of defense evidence and on the scheduled promulgation of
the decision, the Court already issued a Warrant of Arrest against the three
accused. This means that they have lost their standing in court and unless
they surrender or submit to the jurisdiction of the court, they are deemed
to have waived any right to seek relief from the court. (People v. Del
Rosario, et al., G.R. Nos. 107297-98, December 19, 2000, citing People v.
Mapalao, 197 SCRA 79, 87-88 [1991]).
IN VIEW THEREOF, the Notices of Appeal filed by accused PO3 Reynaldo
Macalinao, PO1 Percival Doroja and P/Insp. Edward Garrick Villena are
hereby DENIED DUE COURSE.
SO ORDERED.
Subsequently, PO3 Macalinao filed a Motion with Leave of Court to
Reconsider the November 20, 2007 Order. 9 Petitioners likewise filed a joint
Motion for Reconsideration (of the Order of November 20, 2007). 10
Resolving the said motions, the RTC issued its Order 11 dated February 8,
2008, granting the prayer for reconsideration of PO3 Macalinao, giving his
notice of appeal due course. However, the said Order denied herein
petitioners’ motion, for failure to adduce any valid excuse or compelling
justification for the reconsideration, reversal, and setting aside of the
November 20, 2007 Order. The RTC found—
x x x In the case of accused Reynaldo Macalinao, it is pristinely clear from
the case records that he has been actually attending the scheduled
hearings of the case since its inception. He was also the only one, among
the police officers accused in this case, who testified in Court in defense of
the charges leveled against him.
Moreover, the Court, after a second look at the records finds that his
failure to attend the promulgation of judgment on September 3, 2007 (of
the Decision dated August 29, 2007) was due to an excusable and
justifiable reason. As stated in his Manifestation/Motion on the Subpoena
dated August 29, 2007, the basis for his non-appearance was for the
reason that he was transferred from Raxa Bago, Tondo, Police Station (PS-
1) to Police Station 11, Meisic located at Felipe II, Binondo, Manila, since
July 26, 2006, as evidenced by [the] Certification dated September 19,
2007 issued by P/Insp. Ricardo Tibay Tangunan, Chief Administration
Section.
We cannot say the same thing for the other two (2) accused, namely, PO1
Percival Doroja and P/Insp. Edward Garrick Villena as they have not
manifested nor informed the Court of the cause of their non-appearances
despite notices and subpoenas sent to them nor sought for the lifting of
the Bench Warrant issued against them unlike accused Reynaldo
Macalinao. Also, it can be keenly observed that they both failed to appear
in several if not most of the hearings set by the Court since the
commencement of the trial of the instant case against them. Noteworthy
of such non-appearances in court despite due notices and subpoenas are
the scheduled hearings on November 23, 2005, February 8, 2006, February
15 and 22, 2006, April 26, 2006, May 10, 2006, June 21, 2006, September
20, 2006, October 11 and 25, 2006, November 29, 2006, January 24, 2007,
February 26, 2007, March 14 and 19, 2007, April 25, 2007 and the
promulgation of judgment on September 3, 2007.
From all the foregoing actions during the trial of this instant criminal case,
and after their conviction by this Court, it is only accused PO3 Reynaldo
Macalinao who had shown sufficient interest in defending his case. The
records show no unusual and deliberate delay caused by him in the trial of
the criminal case.
As to the other two accused, it can[not] be gainsaid that they have not
proffered any cogent and excusable reason to justify their non-appearance
during the aforesaid dates and they only asked for judicial leniency, which
this Court cannot give. They have only themselves to be blamed. 12
Aggrieved, petitioners filed a petition13 for certiorari, prohibition, and
mandamus under Rule 65 of the Rules of Court before the CA. The CA, in
its Resolution14 dated April 30, 2008, initially dismissed the petition for not
being accompanied with clearly legible duplicate originals or certified true
copies of the questioned Orders. Petitioners thus moved to reconsider the
April 30, 2008 Resolution.
In the August 1, 2008 Resolution, 15 even as it took into account the merits
of petitioners’ motion for reconsideration, the CA nevertheless resolved to
deny the same for failure to show prima facie evidence of any grave abuse
of discretion on the part of the RTC. Hence, this petition ascribing error to
the CA in dismissing their petition and in not finding grave abuse of
discretion against the RTC for denying their notices of appeal.
Petitioners now argue that the CA erred in upholding the RTC in its denial
of their respective notices of appeal since they already contained the
required manifestation and information as to the cause of their non-
appearance on the scheduled promulgation on September 3, 2007, i.e.,
lack of notice. According to them, their notices of appeal have substantially
complied with the requirement of Section 6, Rule 120 of the Rules of Court,
and have effectively placed them under the RTC’s jurisdiction. They allege
further that their motion for reconsideration should have been considered
by the CA since they have offered the explanations that their failure to
appear during the promulgation of judgment was due to the change of
their respective addresses, and that their former counsel of record did not
inform them of the need to notify the RTC thereof, much less properly
advise them of the current status of the proceedings. As regards their
failure to move for the lifting of the bench warrants issued for their arrest,
petitioners asseverate that the Rules of Court do not provide for such a
requirement before they could avail of the remedies they seek.
The petition is without merit.
While it is true that an appeal is perfected upon the mere filing of a notice
of appeal and that the trial court thereupon loses jurisdiction over the
case, this principle presupposes that the party filing the notice of appeal
could validly avail of the remedy of appeal and had not lost standing in
court. In this case, petitioners have lost their standing in court by their
unjustified failure to appear during the trial and, more importantly, during
the promulgation of judgment of conviction, and to surrender to the
jurisdiction of the RTC.
Petitioners insist that their failure to attend the promulgation of judgment
was due to the lack of notice of the date thereof, allegedly because they
were transferred to another police station. Notably, however, petitioners
did not proffer any documentary and convincing proof of their supposed
transfer, not even to inform the court as to which police station they were
transferred. In contrast, their fellow accused PO3 Macalinao submitted to
the RTC a Certification issued by P/Insp. Ricardo Tibay Tangunan, Chief of
the Philippine National Police Administrative Section, evidencing his
transfer from Police Station (PS-1), Raxa Bago, Tondo Manila to Police
Station 11, Meisic in Binondo, Manila. Petitioners were duty bound to
inform the RTC of their transfer, assuming its truth, so that notices may be
sent to their respective new mailing addresses. They were remiss in the
discharge of this responsibility.
Petitioners contend that their act of filing notices of appeal was already
substantial compliance with the requirements of Section 6, Rule 120 of the
Rules of Court.
We differ. Said provision states—
Sec. 6. Promulgation of judgment.—The judgment is promulgated by
reading it in the presence of the accused and any judge of the court in
which it was rendered. However, if the conviction is for a light offense, the
judgment may be pronounced in the presence of his counsel or
representative. When the judge is absent or outside the province or city,
the judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the
judgment may be promulgated by the executive judge of the Regional Trial
Court having jurisdiction over the place of confinement or detention upon
request of the court which rendered the judgment. The court promulgating
the judgment shall have the authority to accept the notice of appeal and to
approve the bail bond pending appeal; provided, that if the decision of the
trial court convicting the accused changed the nature of the offense from
non-bailable to bailable, the application for bail can only be filed and
resolved by the appellate court.
The proper clerk of court shall give notice to the accused personally or
through his bondsman or warden and counsel, requiring him to be present
at the promulgation of the decision. If the accused was tried in absentia
because he jumped bail or escaped from prison, the notice to him shall be
served at his last known address.
In case the accused fails to appear at the scheduled date of promulgation
of judgment despite notice, the promulgation shall be made by recording
the judgment in the criminal docket and serving him a copy thereof at his
last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear
was without justifiable cause, he shall lose the remedies available in these
rules against the judgment and the court shall order his arrest. Within
fifteen (15) days from promulgation of judgment, however, the accused
may surrender and file a motion for leave of court to avail of these
remedies. He shall state the reasons for his absence at the scheduled
promulgation and if he proves that his absence was for a justifiable cause,
he shall be allowed to avail of said remedies within fifteen (15) days from
notice.16
Thus, the accused who failed to appear at the promulgation of the
judgment of conviction shall lose the remedies available under the Rules of
Court against the judgment—(a) the filing of a motion for new trial or
reconsideration (Rule 121), and (b) an appeal from the judgment of
conviction (Rule 122). However, the Rules allow the accused to regain his
standing in court in order to avail of these remedies by: (a) his surrender,
and (b) his filing of a motion for leave of court to avail of these remedies,
stating therein the reasons for his absence, within 15 days from the date of
promulgation of judgment. If the trial court finds that his absence was for a
justifiable cause, the accused shall be allowed to avail of the said remedies
within 15 days from notice or order finding his absence justified and
allowing him the available remedies against the judgment of conviction. 17
Thus, petitioners’ mere filing of notices of appeal through their new
counsel, therein only explaining their absence during the promulgation of
judgment, cannot be considered an act of surrender, despite the fact that
said notices were filed within 15 days from September 28, 2007, the
purported date when their new counsel personally secured a copy of the
judgment of conviction from the RTC. The term "surrender" under Section
6, Rule 120 of the Rules of Court contemplates an act whereby a convicted
accused physically and voluntarily submits himself to the jurisdiction of the
court to suffer the consequences of the verdict against him. The filing of
notices of appeal cannot suffice as a physical and voluntary submission of
petitioners to the RTC’s jurisdiction. It is only upon petitioners’ valid
surrender, and only after proper motion, that they can avail of the remedy
of appeal. Absent compliance with these requirements, their notices of
appeal, the initiatory step to appeal from their conviction, were properly
denied due course.
Even if petitioners’ notices of appeal were given due course, the CA would
only be constrained to dismiss their appeal. This is because petitioners,
who had standing warrants of arrest but did not move to have them lifted,
are considered fugitives from justice. Since it is safe to assume that they
were out on bail during trial, petitioners were deemed to have jumped bail
when they failed to appear at the promulgation of their sentence. This is a
ground for dismissal of an appeal under Section 8, Rule 124 of the Rules of
Court, which provides—
Sec. 8. Dismissal of appeal for abandonment or failure to prosecute.—The
Court of Appeals may, upon motion of the appellee or motu proprio and
with notice to the appellant in either case, dismiss the appeal if the
appellant fails to file his brief within the time prescribed by this Rule,
except where the appellant is represented by a counsel de officio.
The Court of Appeals may also, upon motion of the appellee or motu SANDIGANBAYAN (Second Division) and PEOPLE OF THE
proprio, dismiss the appeal if the appellant escapes from prison or PHILIPPINES, Respondents.
confinement, jumps bail or flees to a foreign country during the pendency
of the appeal.18 Once an accused escapes from prison or confinement, DECISION
jumps bail (as in the case of petitioners), or flees to a foreign country, he
loses his standing in court. Unless he surrenders or submits to the VILLARAMA, JR., J.:
jurisdiction of the court, he is deemed to have waived any right to seek
relief from the court.19
Before us is a petition for certiorari under Rule 65 seeking to reverse and
set aside the Decision1 dated May 26, 2008 and Resolution2 dated
What is more, the judgment of conviction against petitioners had already November 18, 2008 of the Sandiganbayan (SB) (Second Division) which
acquired finality.1âwphi1 Under Section 6, Rule 120 of the Rules of Court, convicted petitioner of the crime of malversation of public funds.
they had only 15 days from the date of promulgation of judgment within
which to surrender and to file the required motion for leave of court to
The factual antecedents:
avail of the remedies against the judgment. As the judgment was
promulgated on September 3, 2007, petitioners had only until September
Petitioner Marino B. Icdang, at the time of the transactions subject of this
18, 2007 to comply with the mandatory requirements of the said rule.
controversy, was the Regional Director of the Office for Southern Cultural
Communities (OSCC) Region XII in Cotabato City.
This Court has invariably ruled that the right to appeal is neither a natural
right nor a part of due process. It is merely a statutory privilege, and, as
On January 19, 1998, a Special Audit Team was formed by the Commission
such, may be exercised only in the manner and in accordance with the
on Audit (COA) Regional Office XII, Cotabato City pursuant to COA Regional
provisions of the law. The party who seeks to avail of the same must
Office Order No. 98-103 to conduct comprehensive audit on the 1996 funds
comply with the requirements of the Rules. Failing to do so, the right to
for livelihood projects of the OSCC-Region XII. Hadji Rashid A. Mudag was
appeal is lost.20 WHEREFORE, the petition is DENIED. The Resolutions dated
designated as team leader, with Jose Mercado, Myrla Fermin and Evelyn
April 30, 2008 and August 1, 2008 of the Court of Appeals in CA-G.R. SP No.
Macala as members.
103224 are AFFIRMED. Costs against petitioners. SO ORDERED.

In its report submitted to the COA Regional Director, the audit team noted
Republic of the Philippines
that petitioner was granted cash advances which remained unliquidated. In
SUPREME COURT
the cash examination conducted by the team on March 10, 1998, it was
Manila
discovered that petitioner had a shortage of ₱219,392.75. Out of the total
amount of ₱920,933.00 released in September 1996 to their office under
FIRST DIVISION
sub-allotment advice No. COT-043, to cover the implementation of various
socio-economic projects for the cultural communities of the region, cash
G.R. No. 185960               January 25, 2012 advances amounting to ₱407,000.00 were granted from October 1, 1996
to February 5, 1997 to officials and employees including petitioner. Per
MARINO B. ICDANG, Petitioner, records, it was noted that ₱297,392.75 of these cash advances remained
vs. unliquidated as of December 31, 1997.4
Petitioner never denied that he received a total of ₱196,000.00 evidenced Special Audit Team, it was also disclosed that: (1) Funds intended for
by disbursement vouchers and checks payable to him, as follows: programs for Ancestral Domain Claim Development and to support tribal
cooperatives, were cash advanced, but the proposed projects were not
implemented by the OSCC-Region XII; (2) No official cashbooks are
DV No. Check No. Date Purpose Amount
maintained to record cash advances and disbursements from the 1996
0988 893433 10/01/9 Initial funding for the Ancestral P50,000.00 funds allocated for livelihood projects; and (3) Out of the total ₱920,933.00
6 Domain Development Program allocated for 1996 livelihood projects, the amount of ₱445,892.80 was
disbursed leaving a balance of ₱475,040.20; however, final trial balance as
0989 893432 10/01/9 Establishment of ICC- IAD 50,000.00 of December 31, 1996 showed that the office has exhausted the allocated
6 funds for the whole year; the utilization of the ₱475,040.20 could not be
1150 916539 11/05/9 Support to Cooperative 6,000.00 explained by the Accountant so that it may be concluded that such was
6 misappropriated. Petitioner indicated his comments on the said
memorandum by requesting for extension to restitute the amount of
0987 893429 10/01/9 Adult Literacy Program 60,000.00 ₱306,412.75 (which included the ₱67,000.00 cash shortage of another
6 OSCC-Region XII official, Ma. Teresa A. Somorostro), and explaining that
the ₱475,040.20 was not misappropriated as evidenced by their own
0986 893430 10/01/9 Child Care Development Program 30,000.005
financial report and re-statement of allotment and obligation for the
6
month ending December 31, 1996.7

In addition, per the Schedule of Cash Advance Intended for Livelihood From the field interviews conducted by the audit team, it was also
Projects,6 the following amounts were also for petitioner’s account: gathered that the intended projects covered by the cash advances were
never implemented, such as the proposed Children Development Project in
Check No. Date Purpose Amount Bgy. Matila; adult literacy program in Cotabato; operationalization of tribal
cooperative in Bgy. Bantagan, Sultan Kudarat; and establishment of ICC-
xxxx       IAD in Magpet, Cotabato where a complaint was made to the effect that
the OSCC-Region XII office allegedly upon receipt of funds prepares a
893633 11/15/96 Operationalization of Tribal Cooperative 11,000.00
project for implementation which is different from that project proposal
893768 12/13/96 Fishpen Development Program 10,000.00 submitted by the project officer. Supposedly, there was likewise no
support or assistance given by the OSCC-Region XII to the activities of the
893788 12/20/96 Operationalization of Tribal Cooperative 5,000.00 Provincial Special Task Force on Ancestral Domain for the indigenous
916634 02/05/97 Ancestral Domain Development 10,000.00 people of Columbio, Sultan Kudarat, and to Bgys. Salumping, Municipality
Program of Esperanza, President Roxas, and Matrilala. 8 And as already mentioned,
the audit team discovered that the accountable officers of OSCC-Region XII
[TOTAL CASH ADVANCES - P] 232,000.00 failed to maintain the official cashbook so that there were no recording of
transactions whenever a cash advance was granted; only subsidiary ledgers
were used by the accounting section.
In the Audit Observation Memorandum No. 97-001 (March 18, 1998) sent
by the COA Region XII to the OSCC-Region XII reflecting the findings of the
From the ₱232,000.00 accountabilities of petitioner, the COA deducted the
following: ₱10,000.00 covered by acknowledgment receipt by A. Anas;
various cash invoices in the amount of ₱2,197.25; and Reimbursement
Expense Receipts (RERs) in the amount of ₱410.00. After the cash
examination, petitioner was still found short of
₱219,392.75.9 Consequently, a demand letter was sent by the COA for
petitioner to immediately produce the missing funds. In his letter-reply
dated March 19, 1998, petitioner requested for one-week extension to
comply with the directive.10
However, the one-week period lapsed without compliance having been
made by petitioner. Hence, the audit team recommended the initiation of
administrative and criminal charges against him, as well as Ms.
Somorostro, Chief of the Socio-Cultural Development Concerns Division of
OSCC-Region XII.
On September 21, 2000, the Office of the Ombudsman found probable
cause against petitioner and Ms. Somorostro for violation of Art. 217 of
the Revised Penal Code, as amended, and Section 3(e) of Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act).
The Amended Information charging petitioner with the crime of
Malversation of Public Funds (Criminal Case No. 26327) reads:
That during the period from October 1996 to February 1997 in Cotabato
City, Philippines and within the jurisdiction of this Honorable Court,
accused Marino B. Icdang, a public officer being then the Regional Director
of the Office for Southern Communities (OSCC), Region XII, Cotabato City
and as such is accountable officer for the public fund received by him that
were intended for the socio-economic and cultural development projects
of the OSCC Region XII, did then and there willfully, unlawfully and
feloniously take[,] misappropriate, embezzle and convert for his own
personal use and benefit from the said fund the aggregate amount of TWO
HUNDRED NINETEEN THOUSAND THREE HUNDRED NINETY-TWO PESOS
AND 75/100 (P219,392.75) to the damage and prejudice of the
government in the aforesaid sum.
CONTRARY TO LAW.11
Petitioner was likewise charged with violation of Section 3(e) of R.A. No.
3019 (Criminal Case No. 26328).
The lone witness for the prosecution was Hadji Rashid A. Mudag, State
Auditor IV of COA Region XII. He presented vouchers which they were able
to gather during the cash examination conducted on March 10, 1998,
which showed cash advances granted to petitioner, and in addition other
cash advances also received by petitioner for which he remained
accountable, duly certified by the Accountant of OSCC-Region XII.
Petitioner was notified of the cash shortage through the Audit Observation
Memorandum No. 97-001 dated March 18, 1998 and was sent a demand
letter after failing to account for the missing funds totalling ₱219,392.75. 12
On cross-examination, witness Mudag admitted that while they secured
written and signed certifications from project officers and other individuals
during the field interviews, these were not made under oath. The reports
from Sultan Kudarat were just submitted to him by his team members as
he was not present during the actual interviews; he had gone only to
Kidapawan, Cotabato and only prepared the audit report. He also admitted
that they no longer visited the project sites after being told by the project
officers that there was nothing to be inspected because no project was
implemented.13
On May 26, 2008, the SB’s Second Division rendered its decision convicting
petitioner of malversation and acquitting him from violation of Section 3(e)
of R.A. No. 3019. The dispositive portion reads:
WHEREFORE, premises considered judgment is hereby rendered finding
accused MARINO B. ICDANG Guilty beyond reasonable doubt of
Malversation of Public Funds or Property in Criminal Case No. 26327 and
finding in his favor the mitigating circumstance of voluntary surrender, is
hereby sentenced to an indeterminate penalty of, considering the amount
involved, TEN (10) YEARS and ONE (1) DAY of PRISION MAYOR as minimum
to EIGHTEEN (18) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of Reclusion
Temporal as maximum, to suffer the penalty of perpetual special
disqualification, and to pay a fine of P196,000.00 without subsidiary with which he is chargeable, upon demand, shall be evidence that he put
imprisonment in case of insolvency. the missing funds for personal uses, arises because first, there was no
issue as to the accuracy, correctness and regularity of the audit findings
He is also ordered to reimburse the government of the said amount. and second, the funds are missing.15 1avvphi1

In Criminal Case No. 26328, he is hereby ACQUITTED on the basis of Petitioner filed a motion for reconsideration requesting that he be given
reasonable doubt. another chance to present his evidence, stating that his inability to attend
the trial were due to financial constraints such that even when some of the
With cost against accused. scheduled hearings were sometimes held in Davao City and Cebu City, he
still failed to attend the same. However, the SB denied the motion noting
that the decision has become final and executory on June 10, 2008 for
SO ORDERED.14
failure of petitioner to file a motion for reconsideration, or new trial, or
appeal before that date.
The SB ruled that the prosecution has established the guilt of petitioner
beyond reasonable doubt for the crime of malversation of public funds, the
Hence, this petition anchored on the following grounds:
presumption from his failure to account for the cash shortage in the
amount of ₱232,000.00 remains unrebutted. As to the reasons given by
petitioner for non-compliance with the COA demand, the SB held: I. THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE
OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF
JURISDICTION WHEN IT RENDERED ITS JUDGMENT OF
A careful perusal of Mr. Icdang’s Letter-Answer dated 19 March 1998 (Exh.
CONVICTION AGAINST PETITIONER DESPITE ITS KNOWLEDGE
"J") to the demand letter and directive issued by the COA clearly shows he
THAT PETITIONER WAS NOT ABLE TO ADDUCE HIS EVIDENCE DUE
was just asking for extension of time to comply with the demand letter.
TO VARIOUS CIRCUMSTANCES, THAT HE WAS NOT ASSISTED BY
There was virtually no denial on his part that he received the P232,000.00
COUNSEL DURING THE PROMULGATION OF JUDGMENT; THE
amount earmarked for the various government projects. His reasons
GROSS AND RECKLESS NEGLIGENCE OF HIS FORMER COUNSEL IN
were first, the committee tasked to prepare the liquidation of the cash
FAILING TO ASSIST HIM DURING THE PROMULGATION; HIS
advances are still in the process of collecting all the documents pertinent
FINANCIAL AND ECONOMIC DISLOCATION WHICH MADE HIM
to the disbursement of the project funds; and second, the payees to the
UNABLE TO ATTEND THE SCHEDULED TRIALS IN MANILA, DAVAO
disbursements were still to be notified so that they will have to come to
CITY AND CEBU CITY, HIS RESIDENCE BEING IN COTABATO, WHICH
the office to affix their signatures as payees to the liquidation vouchers.
ALL CONSTITUTE A DENIAL OF HIS RIGHT TO BE HEARD AND TO
DUE PROCESS.
This response is queer because as he gave the money to the supposed
payees, he should have kept a ledger to keep track of the same,
II. PETITIONER WAS LIKEWISE CLEARLY DENIED OF HIS RIGHT TO
considering that these are public funds. More importantly, Mr. Icdang was
DUE PROCESS WHEN DUE TO THE RECKLESS AND GROSS
given ample opportunity to dispute the COA findings that there was indeed
NEGLIGENCE OF HIS FORMER COUNSEL, THE LATTER FAILED TO
a shortage. Instead of doing so, Mr. Icdang never presented the promised
FILE A MOTION FOR NEW TRIAL TO REVERSE THE JUDGMENT OF
proof of his innocence before this Court during the trial of this case. Thus,
CONVICTION BEFORE THE SANDIGANBAYAN OR TO FILE AN
the prima facie presumption under Article 217 of the Revised Penal Code,
that the failure of a public officer to have duly forthcoming the public funds
 APPEAL TO THE SUPREME COURT FROM THE ADVERSE
JUDGMENT OF CONVICTION.
III. IT IS HIGHLY UNJUST, INEQUITABLE AND UNCONSCIONABLE
FOR PETITIONER TO BE PRESENTLY LANGUISHING IN JAIL
WITHOUT HIS DEFENSE AGAINST THE CRIME CHARGED HAVING
BEEN PRESENTED BEFORE THE HONORABLE SANDIGANBAYAN
AND APPRECIATED BY THE SAID COURT, AND BY THIS HONORABLE
SUPREME COURT IN CASE OF APPEAL FROM AN ADVERSE
DECISION.
IV. REMAND OF THE INSTANT CASE TO THE COURT OF ORIGIN, OR
TO THE HONORABLE SANDIGANBAYAN SO THAT PETITIONER CAN
PRESENT HIS EVIDENCE BEFORE SAID COURT, ASSISTED BY NEW
COUNSEL, IS PROPER AND JUSTIFIED, ESPECIALLY CONSIDERING
THAT THE INSTANT CASE INVOLVES A CRIME OF ALLEGED
MALVERSATION OF PUBLIC FUNDS WHICH HE NEVER
COMMITTED, AND INVOLVES A HIGHER PENALTY OR TERM OF
IMPRISONMENT.16
The petition must fail.
At the outset it must be emphasized that the special civil action of
certiorari is not the proper remedy to challenge a judgment conviction
rendered by the SB. Petitioner should have filed a petition for review on
certiorari under Rule 45.
Pursuant to Section 7 of Presidential Decree No. 1606, 17 as amended by
Republic Act No. 8249, decisions and final orders of the Sandiganbayan
shall be appealable to the Supreme Court by petition for review on
certiorari raising pure questions of law in accordance with Rule 45 of the
Rules of Court. Section 1 of Rule 45 of the Rules of Court provides that "[a]
party desiring to appeal by certiorari from a judgment, final order or
resolution of the x x x Sandiganbayan x x x whenever authorized by law,
may file with the Supreme Court a verified petition for review on certiorari.
The petition x x x shall raise only questions of law, which must be distinctly
set forth." Section 2 of Rule 45 likewise provides that the petition should
be filed within the fifteen-day period from notice of the judgment or final
order or resolution, or of the denial of petitioner’s motion for
reconsideration filed in due time after notice of judgment.
As observed by the SB, the 15-day period of appeal, counted from the date
of the promulgation of its decision on May 26, 2008, lapsed on June 10,
2008, which rendered the same final and executory. Petitioner’s motion
for reconsideration was thus filed 6 days late. Petitioner’s resort to the
present special civil action after failing to appeal within the fifteen-day
reglementary period, cannot be done. The special civil action of certiorari
cannot be used as a substitute for an appeal which the petitioner already
lost.18
This Court has often enough reminded members of the bench and bar that
a special civil action for certiorari under Rule 65 lies only when there is no
appeal nor plain, speedy and adequate remedy in the ordinary course of
law. Certiorari is not allowed when a party to a case fails to appeal a
judgment or final order despite the availability of that remedy. The
remedies of appeal and certiorari are mutually exclusive and not
alternative or successive.19 Appeals though filed late were allowed in some
rare cases, but there must be exceptional circumstances to justify the
relaxation of the rules.
Petitioner claims that his right to due process was violated when his
counsel failed to assist him during the promulgation of the judgment. He
faults the Sandiganbayan for proceeding with the promulgation despite the
petitioner not then being assisted by his counsel, and being a layman he is
not familiar with court processes and procedure.
Section 6, Rule 120 of the Revised Rules of Criminal Procedure, as
amended, provides:
SEC. 6. Promulgation of judgment. -- The judgment is promulgated by
reading it in the presence of the accused and any judge of the court in
which it was rendered. However, if the conviction is for a light offense, the
judgment may be pronounced in the presence of his counsel or
representative. When the judge is absent or outside the province or city,
the judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the
judgment may be promulgated by the executive judge of the Regional Trial
Court having jurisdiction over the place of confinement or detention upon
request of the court which rendered the judgment. The court promulgating
the judgment shall have authority to accept the notice of appeal and to
approve the bail bond pending appeal; provided, that if the decision of the
trial court convicting the accused changed the nature of the offense from
non-bailable to bailable, the application for bail can only be filed and
resolved by the appellate court.
The proper clerk of court shall give notice to the accused personally or
through his bondsman or warden and counsel, requiring him to be
present at the promulgation of the decision. If the accused was tried in
absentia  because he jumped bail or escaped from prison, the notice to him
shall be served at his last known address.
In case the accused fails to appear at the scheduled date of promulgation
of judgment despite notice, the promulgation shall be made by recording
the judgment in the criminal docket and serving him a copy thereof at his
last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear
was without justifiable cause, he shall lose the remedies available in these
Rules against the judgment and the court shall order his arrest. Within
fifteen (15) days from promulgation of judgment, however, the accused
may surrender and file a motion for leave of court to avail of these
remedies. He shall state the reasons for his absence at the scheduled
promulgation and if he proves that his absence was for a justifiable cause,
he shall be allowed to avail of said remedies within fifteen (15) days from
notice. (Emphasis supplied.)
There is nothing in the rules that requires the presence of counsel for the
promulgation of the judgment of conviction to be valid. While notice must
be served on both accused and his counsel, the latter’s absence during the
promulgation of judgment would not affect the validity of the
promulgation. Indeed, no substantial right of the accused on the merits
was prejudiced by such absence of his counsel when the sentence was
pronounced.20
It is worth mentioning that petitioner never raised issue on the fact that his
counsel was not around during the promulgation of the judgment in his
motion for reconsideration which merely prayed for reopening of the case
to enable him to present liquidation documents and receipts, citing
financial constraints as the reason for his failure to attend the scheduled
hearings. Before this Court he now submits that the gross negligence of his
counsel deprived him of the opportunity to present defense evidence.
Perusing the records, we find that the prosecution made a formal offer of
evidence on August 30, 2002. At the scheduled presentation of defense
evidence on September 4, 2002, petitioner’s counsel, Atty. Manuel E. Iral,
called the attention of the SB to the fact that he had just received a copy of
said formal offer, and requested for 15 days to submit his comment
thereon. The SB granted his request and set the case for hearing on
December 2 and 3, 2002.21 No such comment had been filed by Atty. Iral.
On November 18, 2002, due to difficulty in securing a quorum with five
existing vacancies in the court, the SB thus reset the hearing to April 21
and 22, 2003.22 On January 14, 2003, the SB’s Second Division issued a
resolution admitting Exhibits "A" to "N" after the defense failed to submit
any comment to the formal offer of the prosecution, and stating that the
previously scheduled hearings on April 21 and 22, 2003 shall proceed. 23 On
April 11, 2003, the SB for the same reason again reset the hearing dates to
August 11 and 12, 2003.24
At the scheduled initial presentation of defense evidence on August 11,
2003, only petitioner appeared informing that when he passed by that
morning to his counsel’s residence, the latter was ill and thus requested for
postponement. Without objection from the prosecution and on condition
that Atty. Iral will present a medical certificate within five days, the SB
reset the hearing to October 16 and 17, 2003. The SB also said that if by
the next hearing petitioner is not yet represented by his counsel, said court
shall appoint a counsel de oficio in the person of Atty. Wilfredo C. Andres
of the Public Attorney’s Office.25 However, on October 16, 2003, the SB
received a letter from petitioner requesting for postponement citing the
untimely death of his nephew and swelling of his feet due to arthritis. He
assured the court of his attendance in the next hearing it will set at a later
date.26 Accordingly, the SB reset the hearings to February 12 and 13,
2004.27 On February 4, 2004, the SB again received a letter from petitioner
requesting another postponement for medical (arthritis) and financial (lack
of funds for attorney’s/appearance fee) reasons. He assured the court of
his availability after the May 10, 2004 elections. 28 This time, the SB did not
grant the request and declared the case submitted for decision on the
basis of the evidence on record.29
On March 30, 2004, Atty. Iral filed an Urgent Motion for Reconsideration of
the February 12, 2004 order submitting the case for decision, citing
circumstances beyond his control – the fact that he had no means to come
to Manila from Kidapawan, North Cotabato, he being jobless for the past
four years. He thus prayed to be allowed to present his evidence on May
17 and 18, 2004.30 The prosecution opposed said motion, citing two
postponements in which petitioner’s counsel have not submitted the
required medical certificate and explanation and failure to be present on
October 16, 2003.31
In the interest of justice, the SB reconsidered its earlier order submitting
the case for decision and gave the petitioner a last chance to present his
evidence on August 17 to 18, 2004.32 On August 17, 2004, Atty. Iral
appeared but requested that presentation of evidence be postponed to
the following day, which request was granted by the SB. 33 The next day,
however, only petitioner appeared saying that his lawyer is indisposed.
Over the objection of the prosecution and in the supreme interest of
justice, the SB cancelled the hearing and rescheduled it to November 15
and 16, 2004. Atty. Iral was directed to submit a verified medical certificate
within 10 days under pain of contempt, and the SB likewise appointed a
counsel de oficio  in the person of Atty. Roberto C. Omandam who was
directed to be ready at the scheduled hearing in case petitioner’s counsel
is not ready, stressing that the court will no longer grant any
postponement. Still, petitioner was directed to secure the services of
another counsel if Atty. Iral is not available. 34 With the declaration by
Malacañang that November 15, 2004 is a special non-working holiday, the
hearing was reset to November 16, 2004 as previously scheduled. 35
On November 16, 2004, Atty. Iral appeared but manifested that he has no
witness available. Over the objection of the prosecution, hearing was reset
to March 14 and 15, 2005. Atty. Iral agreed to submit the case for decision
on the basis of prosecution evidence in the event that he is unable to
present any witness on the aforesaid dates. 36 On March 14, 2005, the SB
again reset the hearing dates to May 26 and 27, 2005 for lack of material
time.37 However, at the scheduled hearing on May 26, 2005, petitioner
manifested to the court that Atty. Iral was rushed to the hospital having
suffered a stroke, thereupon the hearing was rescheduled for September
21 and 22, 2005 with a directive for Atty. Iral to submit a verified medical
certificate.38 On September 22, 2005, Atty. Iral appeared but again
manifested that he has no witness present in court. On the commitment of
Atty. Iral that if by the next hearing he still fails to present their evidence
the court shall consider them to have waived such right, the hearing was
reset to February 8 and 9, 2006. 39 However, on February 9, 2006, the
defense counsel manifested that he has some other commitment in
another division of the SB and hence he is constrained to seek cancellation
of the hearing. Without objection from the prosecution and considering
that the intended witness was petitioner himself, the SB reset the hearing
to April 17 and 18, 2006, which dates were later moved to August 7 and 8,
2006.40 On August 7, 2006, over the objection of the prosecution, the SB
granted the motion for postponement by the defense on the ground of
lack of financial capacity. The hearing was for the last time reset to
October 17 and 18, 2006, which date was later changed to October 11 and
12, 2006.41
On October 11, 2006, on motion of the prosecution, the SB resolved that
the cases be submitted for decision for failure of the defense to appear
and present their evidence, and directed the parties to present their
respective memoranda within 30 days. 42 As only the prosecution submitted
a memorandum, the SB declared the cases submitted for decision on
August 24, 2007.43 Petitioner and his counsel were duly notified of the
promulgation of decision, originally scheduled on February 28, 2008 but
was moved to March 27, 2008 in view of the absence of petitioner and the
Handling Prosecutor.44 On that date, however, on motion of Atty. Iral, the
promulgation was postponed to April 14, 2008. 45 On April 14, 2008, both
petitioner and his counsel failed to appear, but since the notice to
petitioner was sent only on April 3, 2008, the SB finally reset the
promulgation of judgment to May 26, 2008. 46 While supposedly absent
during the promulgation, records showed that Atty. Iral personally received
on the same date a copy of the decision.47
The foregoing shows that the defense was granted ample opportunity to
present their evidence as in fact several postponements were made on
account of Atty. Iral’s health condition and petitioner’s lack of financial
resources to cover transportation costs. The SB exercised utmost leniency
and compassion and even appointed a counsel de oficio when petitioner
cited lack of money to pay for attorney’s fee. In those instances when
either petitioner or his counsel was present in court, the following
documentary evidence listed during the pre-trial, allegedly in the
possession of petitioner, and which he undertook to present at the trial,
were never produced in court at any time: (1) Liquidation Report by
petitioner; (2) Certification of Accountant Zamba Lajaratu of the National
Commission on Indigenous People, Region XII, Cotabato City; and (3)
Different Certifications by project officers and barangay captains. 48 If
indeed these documents existed, petitioner could have readily submitted
them to the court considering the length of time he was given to do so.
The fact that not a single document was produced and no witness was
produced by the defense in a span of 4 years afforded them by the SB, it
can be reasonably inferred that petitioner did not have those evidence in
the first place.
The elements of malversation of public funds are:
1. that the offender is a public officer;
2. that he had the custody or control of funds or property by reason
of the duties of his office;
3. that those funds or property were public funds or property for
which he was accountable; and
4. that he appropriated, took, misappropriated or consented or,
through abandonment or negligence, permitted another person
to take them.49
There is no dispute on the existence of the first three elements; petitioner
admitted having received the cash advances for which he is accountable.
As to the element of misappropriation, indeed petitioner failed to rebut
the legal presumption that he had misappropriated the said public funds to
his personal use, notwithstanding his unsubstantiated claim that he has in
his possession liquidation documents. The SB therefore committed neither
reversible error nor grave abuse of discretion in convicting the petitioner
of malversation for failure to explain or account for his cash shortage by
any liquidation or supporting documents. As this Court similarly ruled in
one case50 :
In the crime of malversation, all that is necessary for conviction is sufficient
proof that the accountable officer had received public funds, that he did
not have them in his possession when demand therefor was made, and
that he could not satisfactorily explain his failure to do so. Direct evidence
of personal misappropriation by the accused is hardly necessary as long as
the accused cannot explain satisfactorily the shortage in his accounts.
In convicting petitioner, the Sandiganbayan cites the presumption in Article
217, supra,  of the Revised Penal Code, i.e., the failure of a public officer to
have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, is prima
facie evidence that he has put such missing fund or property to personal
uses. The presumption is, of course, rebuttable. Accordingly, if the accused
is able to present adequate evidence that can nullify any likelihood that he
had put the funds or property to personal use, then that presumption
would be at an end and the prima facie case is effectively negated. This
Court has repeatedly said that when the absence of funds is not due to the
personal use thereof by the accused, the presumption is completely
destroyed; in fact, the presumption is never deemed to have existed at all.
In this case, however, petitioner failed to overcome this prima
facie evidence of guilt.
There is grave abuse of discretion where the public respondent acts in a
capricious, whimsical, arbitrary or despotic manner in the exercise of its
judgment as to be equivalent to lack of jurisdiction. The abuse of discretion
must be so patent and gross as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility. 51 Under the facts on FIRST DIVISION
record, we find no grave abuse of discretion on the part of the SB when it January 23, 2017
submitted the case for decision and rendered the judgment of conviction G.R. No. 193150
on the basis of the prosecution evidence after the defense failed to LOIDA M. JAVIER, Petitioner,
present its evidence despite ample opportunity to do so. vs.
PEPITO GONZALES, Respondent.
WHEREFORE, the petition is DISMISSED. The Decision promulgated on May DECISION
26, 2008 and Resolution issued on November 18, 2008 by the SERENO, CJ.:
Sandiganbayan in Criminal Case No. 26327 are AFFIRMED.
Two Decisions were promulgated by the trial court in this case: the first
With costs against the petitioner. one for conviction, and the second for acquittal. We are called upon to
resolve the procedural question of whether the promulgation in
SO ORDERED. absentia  of the earlier judgment of conviction was valid.

This Petition for Review on Ce1iiorari under Rule 45 seeks a reversal of the
Court of Appeals (CA) Decision 1 and Resolution2 in CA-G.R. SP No. 97629.
The CA affirmed the Decision 3 of Branch 40 of the Regional Trial Court of
Palayan City, Nueva Ecija (the RTC of Palayan City) in Criminal Case No.
1066-P, penned by Judge Corazon D. Soluren (Judge Soluren). Judge
Soluren reversed a previous Decision4 penned by Judge Erlinda P. Buted
(Judge Buted). In the earlier Decision, respondent was convicted of murder
with frustrated murder and multiple attempted murder, and was meted
the death penalty.

THE ANTECEDENT FACTS

This case originated from a criminal case for murder with frustrated
murder and multiple attempted murder lodged in Branch 96 of the
Regional Trial Court of Baler, Aurora (the RTC of Baler). The Information
charged respondent Pepito Gonzales as follows:

That on December 25, 1997 at around 11:30 o'clock in the evening in

Barangay Diarabasin, Municipality of Dipaculao, Province of Aurora,
Philippines and within the jurisdiction of this Honorable Court, the accused
with intent to kill and with the use of treachery and evident premeditation,
did then and there, willfully, unlawfully and feloniously throw a grenade
inside the house of one Leonardo Hermenigildo while the latter and his
companions Rufino Concepcion, who sustained mortal wounds which were
the direct and immediate cause or his death thereafter; that as further
consequence of said explosion, Leonardo Hermenigildo was also hit and
sustained physical injuries fatal enough to cause his death without
immediate and able medical attendance; that Julio Toledo, Ariel Cabasal
and Jesus Macatiag were also hit and likewise sustained physical injuries,
but the said accused did not perform all the acts of execution which should
have produced the crime of multiple murder as a consequence, by reason
of causes other than his own spontaneous desistance, that is, the injuries
sustained by said Julio Toledo, Ariel Cabasal and Jesus Macatiag were not
necessarily mortal.5
Gonzales filed a Motion for Bail6 with the RTC of Baler. Private complainant
Carmen Macatiag (Macatiag) - sister of the deceased victim, Rufino
Concepcion - filed her Opposition 7 to Gonzales's Motion for Bail. Gonzales
then filed a Comment8 to which Macatiag filed her Reply.9 The RTC Baler
issued an Order 10 granting Gonzales bail.
Thereafter, Macatiag filed with this Court an Urgent Petition for Transfer of
Venue. 11 While her petition was pending, she filed a Motion for
Reconsideration12 of the Order of the RTC of Baler granting bail to
Gonzales, who filed his Opposition 13 to her motion. The RTC of Baler
denied 14 the Motion for Reconsideration and upheld its Order granting
bail. Macatiag also filed with the RTC of Baler a Manifestation and Motion
to Suspend Proceedings 15 pending the resolution of her previous petition
for transfer of venue.
On 17 August 1999, the Court granted the transfer of venue and
reassigned the case to the RTC of Palayan City, which was then presided by
Judge Erlinda Buted. 16 Trial on the merits ensued.
The RTC admitted the prosecution's Formal Offer of Evidence. 17 Gonzales
filed an Urgent Motion for Leave to File Demurrer to Evidence. 18 To this
motion he attached a Demurrer to Evidence, 19 which the RTC
denied.20 Following the denial, Gonzales presented his evidence and
witnesses and filed his Formal Offer of Evidence. 21
Thereafter, on 30 November 2005, the RTC issued an Order 22 setting the
promulgation of the case on 15 December 2005. The Return of
Service23 indicated that the Order dated 30 November 2005 and the Notice
of Promulgation dated 6 December 2005 were received on 7 and 12
December 2005 by the sister of private respondent, who refused to sign
the Return.
On 15 December 2005, the scheduled date of promulgation, Gonzales
failed to appear. His lawyer, Atty. Mario Benitez (Atty. Benitez), personally
filed a "Withdrawal of Counsel" 24 with his client's conformity. 25 The
promulgation was rescheduled to 22 December 2005. 26 On the same date,
a warrant of arrest27 was issued and the bond forfeited in view of the
nonappearance of the accused, who was deemed to have jumped bail.
A Notice of Hearing/Subpoena and Notice of Promulgation of
Judgment28 was issued on 15 December 2005 commanding the parties to
appear before the Court on 22 December 2015. Notices were sent to
Gonzales and Macatiag.29
On 22 December 2005, Gonzales still failed to appear without any
justification. Judge Buted appointed a counsel de oficio in lieu of Atty.
Benitez.30 The Branch Clerk of Court thereafter read the dispositive portion
of Judge Buted's Decision in the presence of the public prosecutor, the
counsel de oficio,  and the heirs of Macatiag. Macatiag had been killed on
14 December 2005, just a day before the first promulgation date, and
Gonzales was also an accused in her killing. Gonzales was convicted of the
murder charges:
WHEREFORE, the Accused is found GUILTY beyond reasonable doubt of
the complex crime of MURDER with FRUSTRATED MURDER and MULTIPLE
ATTEMPTED MURDER and is hereby sentenced to a single indivisible
penalty of DEATH.31
Thereafter, the Clerk of Court was directed to enter the judgment of
conviction in the RTC's criminal docket pursuant to paragraph 4, Section 6,
Rule 120 of the Revised Rules of Criminal Procedure. 32 Since the death
penalty was still in force at the time the judgment was promulgated, Judge
Buted also ordered that the records of the case be immediately forwarded
to the CA for automatic review.33
In less than a month after the judgment of conviction was rendered, or on
6 January 2006, private respondent Gonzales filed, through Atty. Benitez,
an Omnibus Motion34 asking that the judgment promulgated on 22
December 2005 be reconsidered and set aside. Gonzales argued that he
had not been properly notified of the promulgation of judgment; that he
had not been represented by counsel; and that the RTC had proceeded
with deliberate haste in convicting him.
The trial court, now presided by Judge Soluren, gave due course to the
motion of Gonzales and granted it through an Order dated 18 April
2006.1awp++i1 The Order set aside the judgment of conviction and
reinstated his bail. 35
On 20 November 2006, petitioner Javier, Macatiag's daughter, discovered
that the RTC had rendered a Decision 36 dated 31 October 2006 acquitting
Gonzales of all charges.37 On 16 January 2007, she filed a Petition
for Certiorari under Rule 65 before the CA, citing grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of Judge Soluren.
The Office of the Solicitor General filed a Comment 38 dated 12 October
2007 praying that the Petition be denied due course and dismissed for lack
of merit. The OSG opined that Judge Soluren did not commit grave abuse
of discretion in reversing the earlier Decision of Judge Buted.
THE CA RULING
In its assailed Decision, the CA dismissed the Petition for Certiorari. It ruled
out grave abuse of discretion on the part of respondent Judge Soluren in
granting private respondent's Omnibus Motion and rendering a new
judgment of acquittal. It agreed with the theory of the OSG that the
promulgation was void, because respondent Gonzales had not been validly
notified of the rescheduled promulgation of judgment on 22 December
2005; that since Gonzales's lawyer, Atty. Benitez, had already withdrawn
his representation on the first scheduled date of promulgation, respondent
had no knowledge that the promulgation had been rescheduled to 22
December 2005; that since he was no longer Gonzales's lawyer, Atty.
Benitez was relieved of the duty to inform his client of court notices and
processes; that since respondent was not personally notified of the
rescheduled promulgation, Judge Buted's promulgation in absentia  was
invalid.
The CA further adopted the OSG's stance that before resorting to a Rule 65
petition for certiorari to question respondent judge's act of acquitting
private respondent, petitioner should have first filed a motion for
reconsideration. It ruled that a motion for reconsideration is not only a
plain and adequate remedy available under the law, but is an indispensible
condition that must be satisfied before an aggrieved party can resort to a
special civil action for certiorari. The appellate court held that since the
remedy of filing a motion for reconsideration was available to petitioner,
and none of the exceptions to the filing of that motion existed, the Petition
must be dismissed.
THE ISSUES
The main issue in this case is whether the CA erred in affirming the
Decision of acquittal issued by Judge Soluren, who had ruled that there
was no grave abuse of discretion amounting to lack or excess of jurisdiction
on her part when she gave due course to the Omnibus Motion of private
respondent questioning his prior conviction.
In order to resolve the main issue, the following issues have to be
addressed:
A. Whether there was a valid promulgation of judgment by Judge Buted in
her prior Decision of conviction;
B. Whether Judge Soluren's subsequent judgment of acquittal is valid;
C. Whether a special civil action for certiorari under Rule 65 is the proper
remedy to question a decision of acquittal.
THE COURT'S RULING
The Petition is impressed with merit.
As a prologue to our ruling, We take cognizance of the unusual
circumstances surrounding this case. Petitioner is the daughter of the
original private complainant, Carmen Macatiag, who was in turn the sister
of the first victim, Rufino Concepcion. When petitioner filed the instant
Petition for Review with this Court, the OSG filed a Manifestation and
Motion39 praying that the People of the Philippines be removed as a co-
petitioner because the OSG was not joining petitioner in this Petition. The
pertinent portion40 of the OSG's Manifestation and Motion reads:
[T]he records will show that the OSG already took on a position different
from that of the petitioner Loida M. Javier when the case was elevated to
the Court of Appeals. Specifically, the OSG in its Comment dated October
12, 2007 and Memorandum dated November 24, 2008 was of the position
that Honorable Judge Soluren did not commit grave abuse of discretion
when she ruled to acquit Pepito Gonzales. In this regard, the arguments
raised by the OSG in the aforementioned pleadings were in fact, adopted
by the Court of Appeals in its Decision dated May 22, 2010.
While the OSG ordinarily represents the People in proceedings before this
Court, We have in the past allowed private parties to
file certiorari petitions assailing rulings and orders of the RTC in criminal
cases.41 As early as 1969, in Paredes v. Gopengco,42the Court already held
that offended parties in criminal cases have sufficient interest and
personality as "persons aggrieved" to file a special civil action of
prohibition and certiorari under Sections l and 2 of Rule 65. That ruling was
in line with the underlying spirit of adopting a liberal construction of the
Rules of Court in order to promote their object. Recently, We reiterated
this ruling in Almero v. People.  43 Similarly, in the case at bar, We find that
the ends of substantial justice would be better served and the issues
determined in a more just, speedy, and inexpensive manner, by
entertaining the present Petition.
We now proceed to the merits of the case.
There are two divergent RTC Decisions: one for conviction, and another for
acquittal. Our resolution of this Petition for Review hinges on the validity of
the second RTC Decision.
After review of the case and the records, We rule that the Court of
Appeals, in affirming Judge Soluren's Decision of acquittal, committed
reversible error, which can be remedied by granting this Petition for
Review on Certiorari.
Judge Buted's Decision convicting respondent was validly promulgated.
Section 6, Rule 120 of the Revised Rules of Criminal Procedure allows a
court to promulgate a judgment in absentia  and gives the accused the
opportunity to file an appeal within a period of fifteen (15) days from
notice to the latter or the latter's counsel; otherwise, the decision becomes
final.
Records show that respondent was properly informed of the promulgation
scheduled on 15 December 2005. The RTC Order dated 30 November
200544 documents the presence of his counsel during the hearing. It is an
established doctrine that notice to counsel is notice to client. 45 In addition,
the Return of Service states that the Order and Notice of Promulgation
were personally delivered to respondent's address.
During the promulgation of judgment on 15 December 2005, when
respondent did not appear despite notice, and without offering any
justification for his absence, the trial court should have immediately
promulgated its Dccision.46 The promulgation of judgment in absentia
is  mandatory pursuant to the fourth paragraph of Section 6, Rule 120 of
the Rules of Court:
SEC. 6. Promulgation of judgment.
xxxx
In case the, accused fails to appear at the scheduled date of promulgation
of judgment despite notice, the promulgation shall be made by recording
the judgment in the criminal docket and serving him a copy thereof at his
last known address or thru his counsel. (Emphasis supplied)
If the accused has been notified of the date of promulgation, but does not
appear, the promulgation of judgment in absentia is warranted. This rule is
intended to obviate a repetition of the situation in the past when the
judicial process could be subverted by the accused by jumping bail to
frustrate the promulgation of judgment. 47 The only essential elements for
its validity are as follows: (a) the judgment was recorded in the criminal
docket; and (b) a copy thereof was served upon the accused or counsel.
In Almuete v. People,48petitioner's counsel informed the trial court that the
accused were either ill or not notified of the scheduled date of
promulgation of judgment. The RTC, however, found their absence
inexcusable and proceeded to promulgate its Decision as scheduled. The
accused went up to the CA, which acquitted them of the charge. This Court
reversed the CA and upheld the validity of the promulgation.
In Estrada v. People,49this Court also affirmed the validity of the
promulgation of judgment in absentia, given the presence of the essential
elements.
Judge Buted's Order dated 22 December 2005 50 fulfilled the requirements
set forth by the Rules and prevailing jurisprudence. Pertinent portions of
the Order read:
The judgment of conviction which carries the death penalty was
pronounced in the presence of the Public Prosecutor, the counsel de
oficio  of accused and the heirs of complainant Carmen Macatiag, the
dispositive portion of which, the OIC Clerk of Court is directed to enter into
the Criminal Docket.
xxxx
Let copy of the Decision furnished each the Public Prosecutor, the
counsel de oficio  of the accused, Atty. Bembol Castillo, and the accused at
his last known address.
Respondent was not left without remedy. The fifth paragraph of Section 6,
Rule 120, states:
If the judgment is for conviction and the failure or the accused to appear
was without justifiable cause, he shall lose the remedies available in these
rules against the judgment and the court shall order his arrest. Within
fifteen (15) clays from promulgation of judgment, however, the accused
may surrender and file a motion for leave of court to avail of these
remedies. He shall state the reasons for his absence at the scheduled
promulgation and if he proves that his absence was for a justifiable cause,
he shall be allowed to avail of said remedies within fifteen (15) days from
notice.
However, instead of surrendering and filing a motion for leave to explain
his unjustified absence, respondent, through Atty. Benitez, filed an
Omnibus Motion before the RTC praying that the promulgation be set
aside.51 We cannot countenance this blatant circumvention of the Rules.
Judge Soluren 's Decision acquitting respondent is void and has no legal
effect.
Judge Soluren acted with grave abuse of discretion amounting to lack or
excess of jurisdiction when she gave due course to respondent's Omnibus
Motion. Aside from being the wrong remedy, the motion lacked merit.
The filing of a motion for reconsideration to question a decision of
conviction can only be resorted to if the accused did not jump bail, but
appeared in court to face the promulgation of judgment. Respondent did
not appear during the scheduled promulgation and was deemed by the
judge to have jumped bail. The fifth paragraph of Section 6, Rule 120,
states that if the judgment is for conviction and the failure of the accused
to appear was without justifiable cause, he shall lose the remedies
available in the Rules against the judgment, and the court shall order his
arrest.
The Court underscores the fact that following Gonzales's waiver of the
remedies under the Rules, Judge Buted issued an Order dated 22
December 2005. According to the Order, the case records shall be
immediately forwarded to the CA for its automatic review of convictions
meting out the death penalty. 52 This automatic review was pursuant to
Supreme Court Administrative Circular 20-2005 (dated 15 April 2005) as
implemented by OCA Circular No. 57-2005 (dated 12 May 2005).
Supreme Court Administrative Circular 20-2005 mandates as follows:
[A]ll Regional Trial Courts concerned, through the Presiding Judges and
Clerks of Court, arc hereby DIRECTED to henceforth DIRECTLY forward to
the COURT OF APPEALS (Manila for Luzon cases, Cebu Station for Visayas
cases, and Cagayan de Oro Station for Mindanao cases) the records of
criminal cases whose decisions are subject to (a) automatic review because
the penalty imposed is death or (b) ordinary appeals (by notices of appeal)
because the penalty imposed is either reclusion perpetua or life
imprisonment, notwithstanding a statement in the notice of appeal that
the appeal is to the Supreme Court.
Meanwhile, OCA Circular No. 57-2005 gives the following directive:
[A]ll Judges and Clerks of Court of the Regional Trial Courts are hereby
reminded that failure to comply with the above-cited Administrative
Circular shall warrant appropriate disciplinary action pursuant to Rule 140
of the Rules of Court, as amended by AM. 01-8-10-SC, which took effect on
11 September 2001, as well as the pertinent rules and regulations of the
Civil Service Commission.
This Administrative Circular took effect on 19 April 2005, strict compliance
herewith is hereby enjoined.
In utter disregard of this Court's circulars, Judge Soluren capriciously,
whimsically, and arbitrarily took cognizance of private respondent's
Omnibus Motion, granted it, and rendered a totally opposite Decision of
acquittal. What she should have done was dismiss the Omnibus Motion
outright, since Judge Buted's Decision of conviction was already subject to
automatic review by the CA. By acting on the wrong remedy, which led to
the reversal of the conviction, Judge Soluren contravened the express
orders of this Court. Her blatant abuse of authority was so grave and so
severe that it deprived the court of its very power to dispense justice.
We take this opportunity to correct a capricious, patent, and abusive
judgment by reversing and setting aside the Decision.
Judge Soluren retired compulsorily in 2012. Had she still been in the
service, some members of this Court would have been minded to refer this
matter to the Office of the Court Administrator for investigation into and
evaluation of the question of whether the above acts call for the
application of administrative sanctions.
Double jeopardy is not triggered when the order of acquittal is void.
Grave abuse of discretion amounts to lack of jurisdiction, and lack of
jurisdiction prevents double jeopardy from attaching.53
In People  v. Hernandez,54this Court explained that "an acquittal rendered in
grave abuse of discretion amounting to lack or excess of jurisdiction does
not really 'acquit' and therefore does not terminate the case as there can
be no double jeopardy based on a void indictment."
Considering that Judge Soluren's order of acquittal was void from the very
beginning, it necessarily follows that the CA ruling dismissing the Petition
for Certiorari must likewise be reversed and set aside.
WHEREFORE, the foregoing Petition is GRANTED. The assailed Decision of
the Court of Appeals in CA-G.R. SP No. 97629 dated 22 March 2010 and
Resolution elated 30 July 2010 are REVERSED and SET ASIDE.
The Decision of Branch 40 of the Regional Trial Court of Palayan City,
Nueva Ecija elated 31 October 2006 and Order elated 18 April 2006,
rendered by public respondent Judge Corazon D. Soluren acquitting
respondent Pepito Gonzales, are likewise REVERSED and SET ASIDE for
having been issued with grave abuse of discretion amounting to lack or
excess of jurisdiction. The Decision dated 22 December 2005 rendered by
Judge Erlinda P. Buted is REINSTATED.
The Court of Appeals is hereby ordered to conduct the mandatory and
automatic review of the Decision dated 22 December 2005 pursuant to
Sections 3 and 10, Rule 122 of the Rules of Court. Let the entire records of
Criminal Case No. 1066-P entitled People of the Philippines v. Pepito
Gonzales be immediately TRANSMITTED to the Court of Appeals.

The bail granted to respondent Pepito Gonzales is CANCELLED. Let copies Republic of the Philippines
of this Decision be furnished the Director of the National Bureau of SUPREME COURT
Investigation and the Director-General of the Philippine National Police. Manila
The National Bureau of Investigation and the Philippine National Police are FIRST DIVISION
hereby DIRECTED to cause the IMMEDIATE ARREST and DETENTION of G.R. Nos. 183152-54               January 21, 2015
respondent Pepito Gonzales. REYNALDO H. JAYLO, WILLIAM V ALENZONA and ANTONIO G.
HABALO, Petitioners,
SO ORDERED. vs.
SANDIGANBAYAN (FIRST DIVISION), PEOPLE OF THE PHILIPPINES and
HEIRS OF COL. ROLANDO DE GUZMAN, FRANCO CALANOG and AVELINO
MANGUERA, Respondents.
DECISION
SERENO, CJ:

What are the repercussions of the failure of the accused to appear,

without justifiable cause, at the promulgation of a judgment of conviction?
With the resolution of this singular issue, the Court writes finis to the 24-
year-old controversy before us.

Assailed in this Petition for Review on Certiorari under Rule 45 of the Rules
of Court is the Decision1 of the Sandiganbayan finding petitioners guilty
beyond reasonable doubt of the crime of homicide. Petitioners also
challenge the Resolution dated 29 November 2007 2 issued by the same
court, which took no action on the motion for reconsideration filed by
petitioners, and the Resolution dated 26 May 2008 3 denying the motion for
reconsideration of the earlier Resolution.

ANTECEDENT FACTS

Petitioners Reynaldo Jaylo (Jaylo), William Valenzona (Valenzona) and

Antonio Habalo (Habalo), together with Edgardo Castro (Castro), 4 were
officers of the Philippine National Police Western Police District placed on
special detail with the National Bureau of Investigation (NBI). 5
In June of 1990, the United States Drug Enforcement Agency (US DEA)
approached the NBI with information on the sale of a considerable amount
of heroin in the Philippines. Jaylo was assigned by then NBI Director
Alfredo Lim to head the team that would conduct a buy-bust operation
with the aid of US DEA undercover agent Philip Needham (Needham).
From 3 to 8 July 1990, Needham, posing as a member of an international
drug syndicate, conducted negotiations for the purchase of 10 kilos of
heroin from Estella Arrastia (Arrastia), Franco Calanog (Calanog) and
Rolando De Guzman (De Guzman).The exchange was scheduled on the
evening of 10 July 1990 at the parking lot of the Magallanes Commercial
Center.
Needham arrived at the parking lot on board a taxicab with Arrastia and
Philip Manila (Manila), an undercover NBI operative who posed as
Needham’s bodyguard.6 The taxicab was driven by Romeo Noriega
(Noriega), another undercover NBI operative.7
At the parking lot, Needham and Arrastia met Calanog and Avelino
Manguera (Manguera), who both alighted from a blue Volkswagen Beetle;
and De Guzman, who alighted from a brown Saab. 8 Needham approached
the Volkswagen and examined the heroin in the backseat. 9 After some
time, he straightened up and walked back towards the taxicab, while
executing the prearranged signal of taking out his handkerchief and
blowing his nose.10
It is at this point that the versions of the prosecution and the defense
diverged, particularly on the manner of the arrest.
Version of the Prosecution
On board two vehicles, Jaylo, Castro, Valenzona, Habalo, and at least 15
other operatives, rushed in and surrounded De Guzman, Calanog, and
Manguera.11
Jaylo pointed his gun at De Guzman. Two other operatives instructed
Calanog and Manguera to lie face down on the ground and placed a foot
on their backs while training a gun at them. The rest cordoned the area.
Later, a car with passengers Needham, US DEA country attaché Andrew
Fenrich (Fenrich), and two armed bodyguards moved out of the cordoned
area. When the car was safely on its way, Jaylo and his men shot De
Guzman, Calanog, and Manguera. They waited 15 minutes for the victims
to bleed out and thereafter loaded them into the vehicles under the ruse
of bringing them to the hospital.12
Version of the Defense
When he saw Needham executing the prearranged signal, Manila executed
the second signal of wiping the right side of his face as confirmation. 13
Castro, who was driving a Lancer car with Jaylo as his passenger, stepped
on the accelerator to block the path of the Volkswagen. 14 Both of them
immediately alighted from the vehicle. Jaylo confronted De Guzman in the
Saab, while Castro arrested Calanog in the Volkswagen. Meanwhile,
Valenzona and Habalo approached Manguera.15
A speeding blue-green car and a burst of gunfire caught the attention of
the operatives while they were approaching their quarries. 16 Taking
advantage of the distraction, De Guzman, Calanog, and Manguera reached
for their firearms and tried to shoot.
Jaylo was able to move away, so only the window on the driver’s side of
the Saab was hit and shattered.17 He retaliated and shot De Guzman twice,
hitting him in the left eye and chest.18
Out of instinct, Castro shoved the gun of Calanog upward and shot him
twice.19 Calanog staggered, but again aimed the gun at him. It was then
that Castro shot Calanog two times more, causing the latter to finally fall
down.
Valenzona and Habalo saw Manguera in the act of drawing his
firearm.20 Both of them fired and hit him.
The operatives brought De Guzman, Calanog, and Manguera to the
hospital.21 Upon verifying their identities, the victims were found to be
soldiers: Colonel Rolando de Guzman and Major Franco
Calanog.22 Manguera was the driver/security aide of Major Calanog. 23
The Elma Committee
President Corazon Aquino issuedAdministrative Order No. 182 24 on 13 July
1990 creating the "Elma Committee." Headed by Presidential Assistant for
Legal and Judicial Affairs Magdangal Elma, with Undersecretary of National
Defense Leonardo Quisumbing and Undersecretary of Justice Eduardo
Montenegro as members, the Elma Committee was tasked to conduct an
investigation of all the facts and circumstances surrounding the seizure of
heroin and the shooting incident.
Pursuant to its mandate to submit its findings and recommendations to the
President after the completion of its investigation, the Elma Committee
recommended the prosecution of Jaylo for the killing of De Guzman, Castro
for that of Calanog, and Valenzona and Habalo for that of Manguera. 25
However, in three separate Amended Informations dated 8 September
1992 and filed before the Sandiganbayan, Jaylo, Castro, Valenzona and
Habalo, together with several John Does, were charged with conspiracy in
the murder of De Guzman,26 Calanog,27 and Manguera.28 RULING OF THE
SANDIGANBAYAN
In a Decision dated 17 April 2007, the Sandiganbayan found Jaylo, Castro,
Valenzona, and Habalo guilty of homicide. Jaylo was convicted for the
killing of De Guzman under Criminal Case No. 17984; Castro for that of
Calanog under Criminal Case No. 17985; and Valenzona and Habalo for
Manguera’s under Criminal Case No. 17986.29 Each of the accused was
sentenced to imprisonment ofsix years and one day of prision mayoras
minimum to 14 years, eight months and one day of reclusion temporalas
maximum, and perpetual disqualification from public office. Each was
likewise ordered to pay ₱50,000 as damages to the heirs of their respective
victims, and a proportionate share in the costs of suit.
The Sandiganbayan noted that the prosecution and the defense were in
agreement that the four accused shot and killed the three victims. 30 With
this established fact, it was only necessary to determine the following:
a) Whether the accused conspired to kill the victims;
b) Whether the killing was attended by treachery, evident
premeditation and taking advantage of superior strength; and
c) Whether the killing was justified by the circumstance of
fulfillment of duty or lawful exercise of a right or office.
According to the Sandiganbayan, the evidence presented did not show
conspiracy or any intention on the partof the four accused to aid one
another in the shooting.31 They did not demonstrate a preconceived
common plan or scheme to liquidate the suspected drug dealers. The
prosecution was also unable to prove the attendance of any of the
qualifying circumstances.32 Treachery was not established. The
Sandiganbayan ruled that it could not take judicial notice of the statements
given before the Elma Committee by Dr. Desiderio Moraleda, who had
conducted the autopsy on the victims. Dr. Moraleda died before he could
testify before the Sandiganbayan, and his testimony onthe trajectory of
the bullets and the positions of the assailants relative to those of the
victims could not be admitted in evidence without violating the rules on
hearsay evidence.
On the allegation that the four accused took advantage of superior
strength, the court ruled that there was no evidence showing the use of
excessive force out of proportion to the defense available to the victims. In
particular, the shooting of Manguera by Valenzona and Habalo only
showed numerical superiority, not superior strength.
The prosecution also failed to prove evident premeditation. It was not able
to indicate the time when the four accused determined to commit the
killing; neither was it able to pinpoint the overt act demonstrating that
they adhered to their resolve to commit the crime even after the lapse of
enough time "to allow their conscience to overcome the resolution of their
will."33
For their part, the accused also failed to prove their defense of fulfillment
of a duty or lawful exercise of a right or office. 34 The Sandiganbayan was
not convinced that they had acted within the bounds allowed for an arrest
in a buy-bust operation.
For one, the Sandiganbayan highly doubted the existence of the speeding
car that distracted the operatives while they were arresting the suspected
drug dealers. In this regard, it took note of the inconsistent testimonies of
Manila and Noriega on one hand and of Needham on the other.
According to Manila, when he heard the gunfire from the speeding car, he
covered Needham and ran with him towards the South Superhighway,
away from the taxicab driven by Noriega.35 Needham got into the
diplomatic car that approached them. When the shooting subsided, he
went back to the scene.
According to Noriega, he saw the speeding car going towards the Maranaw
Building parking lot and heard three gunshots. Thereafter, he saw
Needham run towards his taxi and board it. While Noriega was trying to
get Needham away from the area, a diplomatic car blocked their taxicab,
and the latter transferred to that car.
According to Needham, however, he immediately walked back to the taxi
after executing the prearranged signalfor the arrest, got in the cab and left
the scene. As the taxicab was leaving, he saw the "rescue" coming
in.36 Other than that, he did not notice any commotion or gunfire. He was
then picked up by Fenrich, and they went on their way.
The Sandiganbayan also noted that the slugs or shells recovered from the
scene all came from short firearms, contrary to Jaylo’s testimony that the
shots from the speeding car were from a rifle (an "armalite").
Further militating against the existence of the speeding car was Jaylo’s
incident Report dated 10 July 1990, in which he stated that when they
rushed in for the arrest, they were met by a volley of gunfire from the
three cars of the suspected drug dealers. 37 There was no mention at all of
any speeding car.
Considering the failure of the prosecution to prove conspiracy and the
attendance of any of the alleged qualifying circumstances, as well as the
failure of the defense to prove the justifying circumstance of fulfillment of
a duty or lawful exercise of a right or office, the Sandiganbayan ruled that
the crime committed was homicide.
During the promulgation of the Sandiganbayan’s judgment on 17 April
2007, none of the accused appeared despite notice. 38 The court
promulgated the Decision in absentia, and the judgment was entered in
the criminal docket. The bail bonds of the accused were cancelled, and
warrants for their arrest issued.
On 30 April 2007, counsel for Jaylo, Valenzona, and Habalo filed a Motion
for Partial Reconsideration 39 of the Decision. In the assailed Resolution
dated 29 November 2007, the Sandiganbayan took no action on the
motion and ordered the implementation of the warrants for the arrest of
the convicted accused.40 The court ruled that the 15-day period from the
promulgation of the judgment had long lapsed without any of the accused
giving any justifiable cause for their absence during the promulgation.
Under Section 6 of Rule 120 of the Rules of Court, 41 Jaylo, Valenzona and
Habalo have lost the remedies available under the Rules against the
Sandiganbayan’s judgment of conviction, including the filing of a motion
for reconsideration.
In an Ad Cautelam Motion for Reconsideration 42 dated 25 January 2008,
counsel for the three urged the Sandiganbayan to givedue course to and
resolve the Motion for Partial Reconsideration. The Sandiganbayan issued
the second assailed Resolution dated 26 May 2008. The court ruled that for
the failure of the three to surrender and move for leave to avail
themselves of a motion for reconsideration within 15 days from the date of
promulgation, the judgment has become final and executory, and no
action on the motion for reconsideration can be taken. 43 It then reiterated
its order to implement the warrants for the arrest of the three. ISSUE
On 19 June 2008, petitioners Jaylo, Valenzona and Habalo, by counsel, filed
the instant petition assailing the Sandiganbayan Decision dated 17 April
2007 and Resolutions dated 29 November 2007 and 26 May 2008.
Regarding the Decision dated 17 April 2007, petitioners argue that the
Sandiganbayan erred in ruling as follows:
1. The negative finding of a conspiracy did not lead to the positive
finding of the justifying circumstance of fulfillment of duty.
2. There was a contradiction between the testimonies of Manila
and Noriega on one hand and Needham on the other.
3. The existence of the speeding car was highly doubtful.
4. The inconsistency in the testimony of Jaylo was determinative
of his lack of credibility.
5. There should be conclusive physical evidence to prove the
justifying circumstance of fulfillment of duty.
6. The admissions of petitioners before the Elma Committee were
admissible in evidence.
7. Petitioners are guilty of homicide even in the absence of their
positive identification as the ones who committed the crimes
charged.
Anent the Resolutions dated 29 November 2007 and 26 May 2008,
petitioners argue:
1. Section 6 of Rule 120 of the Rules of Court cannot diminish,
increase or modify substantive rights like the filing of a motion for
reconsideration provided under Presidential Decree No. (P.D.)
1606.44
2. The conditions under Section 6 Rule120 of the Rules of Court do
not obtain in the instant case.
As stated at the outset, the resolution of the instant case hinges on the
question regarding the effects of the non appearance of the accused,
without justifiable cause, in the promulgation of the judgment of
conviction. In the interest of judicial economy, we shall proceed with a
discussion on this question. For reasons that will be expounded on below,
the application in this case of the law and rules on the non appearance of
the accused, without justifiable cause, in the promulgation of the judgment
of conviction shall determine for us the propriety of conducting a review of
the Sandiganbayan Decision dated 17 April 2007.
OUR RULING
Section 6, Rule 120, of the Rules of Court provides that an accused who
failed to appear at the promulgation of the judgment of conviction shall
lose the remedies available against the said judgment.
Section 6, Rule 120, of the Rules of Court states:
SECTION 6. Promulgation of judgment. — The judgment is promulgated by
reading it in the presence of the accused and any judge of the court in
which it was rendered. However, if the conviction is for a light offense, the
judgment may be pronounced in the presence of his counsel or
representative. When the judge is absent or outside the province or city,
the judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the
judgment may be promulgated by the executive judge of the Regional Trial
Court having jurisdiction over the place of confinement or detention upon
request of the court which rendered the judgment. The court promulgating
the judgment shall have authority to accept the notice of appeal and to
approve the bail bond pending appeal; provided, that if the decision of the
trial court convicting the accused changed the nature of the offense from
non-bailable to bailable, the application for bail can only be filed and
resolved by the appellate court.
The proper clerk of court shall givenotice to the accused personally or
through his bondsman or warden and counsel, requiring him to be present
at the promulgation of the decision. If the accused was tried in absentia
because he jumped bail or escaped from prison, the notice to him shall be
served at his last known address.
In case the accused fails to appear at the scheduled date of promulgation
of judgment despite notice, the promulgation shall be made by recording
the judgment in the criminal docket and serving him a copy thereof at his
last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear
was without justifiable cause, he shall lose the remedies available in these
rules against the judgment and the court shall order his arrest. Within
fifteen (15) days from promulgation of judgment, however, the accused
may surrender and file a motion for leave of court to avail of these
remedies. He shall state the reasons for his absence at the scheduled
promulgation and if he proves that his absence was for a justifiable cause,
he shall be allowed to avail of said remedies within fifteen (15) days from
notice.(6a) (Emphasis supplied)
Except when the conviction is for a light offense, in which case the
judgment may be pronounced in the presence of the counsel for the
accused or the latter’s representative, the accused is required to be
present at the scheduled date of promulgation of judgment. Notice of the
schedule of promulgation shall be made to the accused personally or
through the bondsman or warden and counsel.
The promulgation of judgment shall proceed even in the absence of the
accused despite notice. The promulgation in absentia shall be made by
recording the judgment in the criminal docket and serving a copy thereof
to the accused at their last known address or through counsel. The court
shall also order the arrest of the accused ifthe judgment is for conviction
and the failure to appear was without justifiable cause. 45
If the judgment is for conviction and the failure to appear was without
justifiable cause, the accused shall lose the remedies available in the Rules
of Court against the judgment. Thus, it is incumbent upon the accused to
appear on the scheduled date of promulgation, because it determines the
availability of their possible remedies against the judgment of conviction.
When the accused fail to present themselves at the promulgation of the
judgment of conviction, they lose the remedies of filing a motion for a new
trial or reconsideration (Rule 121) and an appeal from the judgment of
conviction (Rule 122).46
The reason is simple. When the accused on bail fail to present themselves
at the promulgation of a judgment of conviction, they are considered to
have lost their standing in court. 47 Without any standing in court, the
accused cannot invoke itsjurisdiction to seek relief. 48
Section 6, Rule 120, of the Rules of Court, does not take away substantive
rights; itmerely provides the manner through which an existing right may
be implemented.
Petitioners claim that their right to file a motion for reconsideration or an
appeal has a statutory origin, as provided under Section 7 of P.D. 1606, to
wit:
Section 7. Form, Finality and Enforcement of Decisions. — All decisions and
final orders determining the merits of a case or finally disposing of the
action or proceedings of the Sandiganbayan shall contain complete
findings of the facts and the law on which they are based, on all issues
properly raised before it and necessary in deciding the case.
A petition for reconsideration of any final order or decision may be filed
within fifteen (15) days from promulgation or notice of the final order or
judgment, and such motion for reconsideration shall be decided within
thirty (30) days from submission thereon. (Emphasis supplied)
xxxx
According to petitioners, Section 7 of P.D. 1606 did not provide for any
situation as to when the right to file a motion for reconsideration may be
deemed lost. Thus, it is available at all times and the Rules promulgated by
the Supreme Court cannot operate to diminish or modify the right of a
convicted accused to file a motion for reconsideration. 49 Furthermore, they
argue, the right to file a motion for reconsideration is a statutory grant,
and not merely a remedy "available in [the] Rules," as provided under
Section 6 of Rule 120 of the Rules of Court. Thus, according to them, their
absence at the promulgation of judgment before the Sandiganbayan
cannot be deemed to have resulted in the loss of their rightto file a motion
for reconsideration.
Petitioners’ argument lacks merit.
Like an appeal, the right to file a motion for reconsideration is a statutory
grant or privilege. As a statutory right, the filing of a motion for
reconsideration is to be exercised in accordance with and in the manner
provided by law. Thus, a party filing a motion for reconsideration must
strictly comply with the requisites laid down in the Rules of Court. 50
It bears stressing that the provision on which petitioners base their claim
states that "[a] petition for reconsideration of any final order or decision
maybe filed within fifteen (15) days from promulgation or notice of the
final order or judgment."51 In Social Security Commission v. Court of
Appeals,52 we enunciated that the term "may" denotes a mere possibility,
an opportunity, or an option. Those granted this opportunity may choose
to exercise it or not. If they do, they must comply with the conditions
attached thereto.53
Aside from the condition that a motion for reconsideration must be filed
within 15 days from the promulgation or notice of the judgment, the
movant must also comply with the conditions laid down in the Rules of
Court, which applies to all cases and proceedings filed with the
Sandiganbayan.54
Petitioners insist that the right to file a motion for reconsideration under
Section 7 of P.D. 1606 is a guarantee, and no amount of Rules promulgated
by the Supreme Court can operate to diminish or modify this substantive
right. Aptly citing Fabian v. Desierto, 55 the Sandiganbayan was correct in
rejecting the argument of petitioners in this wise:
Fabian v. Desiertolays down the test for determining whether a rule
prescribed by the Supreme Court, for the practice and procedure of the
lower courts, abridges, enlarges or modifies any substantive right, to wit:
"…whether the rule really regulates procedure, that is, the judicial process
for enforcing rights and duties recognized by substantive lawand for justly
determining remedy and redress for a disregard or infraction of them. If
the rule takes away a vested right, it is not procedural. If the rule creates a
right such as the right to appeal, it may be classified as a substantive
matter; but if it operates as a means of implementing an existing right then
the rule deals merely with procedure.
Applying the Fabian v. Desiertotest, it appears indubitable that Section 6,
Rule 120 of the Rules of Court (ROC) clearly applies to the Sandiganbayan.
Section 6, Rule 120, ROC as well as Section 4, Rule VIII of the Revised Rules
of the Sandiganbayan (which makes applicable Section 6, Rule 120, ROC
when the accused is absent during promulgation of judgment) merely
regulates the right to file a motion for reconsideration under P.D. 1606.
These are mere rules of procedure which the Supreme Court is competent
to adopt pursuant to its rule-making power under Article VIII, Section 5(5)
of the Constitution. And, contrary to the view espoused by the accused,
said rules do not take away, repeal or alter the right to file a motion for
reconsideration as said right still exists. The Supreme Court merely laid
down the rules on promulgation of a judgment of conviction done in
absentia in cases when the accused fails to surrender and explain his
absence within 15 days from promulgation. The Supreme Court can very
well do this as the right to file a motion for reconsideration under P.D.
1606 is not preclusive in character. Indeed, there is nothing in P.D. 1606
which prevents the Supreme Court from regulating the procedure for
promulgation of decisions in criminal cases done in absentia. 56
Section 6, Rule 120, of the Rules of Court, does not take away per se the
right of the convicted accused to avail of the remedies under the Rules. It is
the failure of the accused to appear without justifiable cause on the
scheduled date of promulgation of the judgment of conviction that forfeits
their right to avail themselves of the remedies against the judgment.
It is not correct to say that Section 6, Rule 120, of the Rules of Court
diminishes or modifies the substantive rights of petitioners. It only works in
pursuance of the power of the Supreme Court to "provide a simplified and
inexpensive procedure for the speedy disposition of cases." 57 This provision
protects the courts from delay in the speedy disposition of criminal cases –
delay arising from the simple expediency of nonappearance of the accused
on the scheduled promulgation of the judgment of conviction.
In this case, petitioners have just shown their lack of faith in the
jurisdiction of the Sandiganbayan by not appearing before it for the
promulgation of the judgment on their cases. Surely they cannot later on
expect to be allowed to invoke the Sandiganbayan’s jurisdiction to grant
them relief from its judgment of conviction.
It is incumbent upon the accused to
show justifiable cause for their
absence at the promulgation of the
judgment of conviction.
According to petitioners, even if wewere to apply Section 6, Rule 120, the
conditions under which an accused loses the remedies available in the
Rules of Court do not obtain in this case. It is argued that for the provision
to apply, it must be shown that 1) the accused was notified of the
scheduled date of promulgation, and that 2) the accused failed to appear
at the promulgation of the judgment of conviction without justifiable
cause.
Petitioners insist that the Sandiganbayan did not bother to determine
whether their absence at the promulgation of judgment was without
justifiable cause. In other words, as petitioners would have it, it was
incumbent upon the Sandiganbayan to take pains to find out whether their
absence at the promulgation was without justifiable cause, and only then
could the court conclude that petitioners have lost the remedies available
in the Rules of Court against the judgment of conviction.
It is well to note that Section 6, Rule 120, of the Rules of Court also
provides the remedy by which the accused who were absent during the
promulgation may reverse the forfeiture of the remedies available to them
against the judgment of conviction. In order to regain their standing in
court, the accused must do as follows: 1) surrender and 2) file a motion for
leave of court to avail of the remedies, stating the reasons for their
absence, within 15 days from the date of the promulgation of judgment. 58
In Villena v. People,59 we stated that the term "surrender" contemplates
the act by the convicted accused of physically and voluntarily submitting
themselves to the jurisdiction of the court to suffer the consequences of
the judgment against them. Upon surrender, the accused must request
permission of the court to avail of the remedies by making clear the
reasons for their failure to attend the promulgation of the judgment of
conviction.
Clearly, the convicted accused are the ones who should show that their
reason for being absent at the promulgation of judgment was justifiable. If
the court finds that the reasons proffered justify their nonappearance
during the promulgation of judgment, it shall allow them to avail of the
remedies.60 Thus, unless they surrender and prove their justifiable reason
to the satisfaction of the court, their absence is presumed to be
unjustified.
On the scheduled date of promulgation on 17 April 2007, the
Sandiganbayan noted that only Atty. Francisco Chavez, counsel for
petitioners, appeared.61 Jaylo was not served notice of the promulgation,
because he was no longer residing athis given address. Valenzona and
Habalo were duly notified. Castro had died on 22 December 2006. 62
Petitioners did not surrender within 15 days from the promulgation of the
judgment of conviction.1âwphi1 Neither did they ask for leave of court to
avail themselves of the remedies, and state the reasons for their absence.
Even if we were to assume that the failure of Jaylo to appear at the
promulgation was due to failure to receive notice thereof, it is not a
justifiable reason. He should have filed a notice of change ofaddress before
the Sandiganbayan.

The Sandiganbayan was correct in not taking cognizance of the Motion for
Partial Reconsideration filed by counsel for petitioners. While the motion
was filed on 30 April 2007, it did not operate to regain the standing of
petitioners in court. For one, it is not anact of surrender that is
contemplated by Section 6, Rule 120, of the Rules of Court. Moreover,
nowhere in the Motion for Partial Reconsideration was it indicated that
petitioners were asking for leave to avail of the remedies against the
judgment of conviction, or that there were valid reasons for their absence
at the promulgation.

For the failure of petitioners to regain their standing in court and avail
themselves of the remedies against the judgment of conviction, the
Decision of the Sandiganbayan attained finality 15 days reckoned from 17
April 2007.

In view thereof, this Court no longer has the power to conduct a review of
the findings and conclusions in the Decision of the Sandiganbayan. The
Decision is no longer subject to change, revision, amendment, or
reversal.63 Thus, there is no need to pass upon the issues raised by
petitioners assailing it.

WHEREFORE, the petition is DENIED. The Sandiganbayan Resolutions dated

29 November 2007 and 26 May 2008 in Criminal Case Nos. 17984-86 are
AFFIRMED. The Sandiganbayan Decision dated 17 April 2007, having
attained finality, stands.

SO ORDERED.