Republic of the Philippines

COURT OF APPEALS
Cebu City

____Division

PEOPLE OF THE PHILIPPINES, CA-G.R. CEB CR HC NO. 01930

Appellee, RTC BRANCH 51, CARMEN, BOHOL
RTC CASE NO. 01,0101-A, 0102 &
- Versus - 0103

JAIRUS ATUP & JOHN PAUL

ATUP,
Appellants.

MOTION FOR RECONSIDERATION OF THE RESOLUTION

ORDERING THE DISMISSAL OF THE CASE FOR CAUSE

COME NOW Accused-Appellant John Paul Atup, thru counsel, unto the
Honorable Court of Appeals, respectfully file this Motion for Reconsideration
for Cause:

Basis for Asking Reconsideration

Although the Honorable Appellate Court ordered the dismissal of the

present case for failure of accused-appellants to file their appellants brief,
thus, the present appeal was dismissed per Resolution of the Honorable Court
dated May 21, 2015.

However, a recent review of the appealed decision of the Court a quo by

the undersigned counsel revealed a grave palpable error and great injustice in
the imposition of penalty to herein accused-appellant-movant John Paul Atup
as established public document, more particularly his Birth Certificate
(offered in evidence as Exhibit 8 Birth Certificate of Accused-Appellant John
Paul Atup) thereby proving irrefutably that at the time the alleged
commission of the crime said accused was still 16 year of age, and the same is
not even disputed by the prosecution, and yet in the appealed decision is
imposed the following penalties, to wit:
 a. For being found guilty of the crime of two counts of rape with the use
of force and intimidation, with the help of each other, accused-
appellant-movant John Paul Atup was imposed the penalty of
Reclusion Perpetua in both Criminal Case No. 0101 and 0101-A; and

b. For being found guilty of the crime of Frustrated Murder on the

person of victim Zita Maranga, herein accused-appellant-movant
John Paul Atup was imposed the penalty of 17 years, 4 Months and 1
day to 20 years of Reclusion Temporal Maximum.

However, the above penalty failed to take into consideration that herein
accused-appellant-movant John Paul Atup have duly established his minority
or his being still 16 years of age when the alleged crime was purportedly
committed by him, thus, under Article 68 (2) of the Revised Penal Code –
Penalty to be imposed upon a person under eighteen years of age but above
15 years of age, the imposable penalty if duly established that he acted with
discernment, the penalty next lower than that prescribed by law shall be
imposed, but always in the proper period.

Should be penalty for the two counts of Rape

Considering that the imposed penalty is Reclusion Perpetua, thereby

showing that the Court a quo failed to appreciate/consider the minority of
accused-appellant-movant John Paul Atup, the imposed penalty for the
conviction under rape is clearly not in accord or does not conform to the law
for the should be penalty is the next lower penalty of Reclusion Perpetua
which is Reclusion Temporal medium. Thus, the penalty that should have
been imposed is a penalty maximum from 14 years, 8 months and 1 day to 17
years and 4 months for each of the two counts of rape.

Should be penalty for the Frustrated Murder

Now, for the crime of Frustrated Murder the penalty that was imposed
is the maximum penalty of Reclusion Temporal Maximum, which is 17 years, 4
months and 1 day to 20 years. However, the fact that herein accused-
appellant-movant is only 16 years old when he allegedly committed the crime,
the imposable penalty pursuant to law should have been one degree lower or
Prision mayor at its maximum of 10 years and 2 day to 12 years.
 Dismissal of Appeal did not
make the erroneous imposed
Penalty Final for the same is void

Although the decision in the present case may have already

become final. However, the Honorable Supreme Court in the case of People of
the Philippines, plaintiff-appellee vs. Arnulfo Barro et al., G.R. No. 118098,
August 17, 2000 reiterated in the case of

Statement of the Case

A clear and concise statement of the nature of the action

1. The present Decision now raised to the Honorable Court of Appeals

by way of an ordinary appeal under Rule 122, Section 2 (a) of the
Rules of Court involves an Order of Conviction for two (2) counts of
Rape, one (1) count of Frustrated Murder and one (1) count of
Robbery with Homicide against herein accused-appellants by the
Regional Trial Court of Carmen, Bohol.

A summary of the proceedings

2. On ________________________________ herein accused-appellants were

arraigned and pleaded not guilty of all the crime charged, with
details stated below:

Statement of Facts

A clear and concise statement of the facts admitted by both parties

and of those in controversy
 The parties in this case admitted and controverted to the following

facts:

Statement of the Issues of Facts and Laws

1. The Honorable Court A quo erred in convicting the accused-

appellants for two (2) counts of Rape;

2. The Honorable Court A quo erred in accused-appellant for one (1)

count of ____________.

Argument

Relief

WHEREFORE, on the basis of the foregoing facts, laws and arguments, it

is respectfully prayed of the Honorable Appellate Court that an order be
issued setting aside the decision of Regional Trial Court Branch 12 dated June
27, 2012, and ordering that defendants-appellants have already paid in full
their obligations as evidenced by their Exhibit “18”, and order the dismissal of
the complaint of plaintiffs-appellants.

Defendants-appellants pray for such other relief that is just and

reasonable under the premises.

Cebu City, Philippines. ________________________, 2015.

 SENINING (+) BELCINA ATUP ENTISE LIMA-LIMA
JUMAO-AS BANTILAN ACLAN CONDAT & ASSO.
Counsels for Accused-Appellants
M. Lhuillier Compound, 1082 J. Panis Street
Kalubihan, Talamban, Cebu City
Tel. No. 236-0962 & 236-0963

By:

BAYANI S. ATUP
Attorney’s Roll No. 41994
MCLE Compliance No. V-0003582
IBP No. ________, issued on _______________ (for 2015)
PTR No. __________, issued on _________________________

VERIFICATION & CERTIFICATE OF NON-FORUM SHOPPING

WE, JAIRUS ATUP and JOHN PAUL ATUP, both Filipino of legal ages,
single and residents of Sierra Bullones, Bohol, Philippines, under oath depose
and say that:

We are the Accused-Appellants in the above-entitled case; we have

caused the preparation of the foregoing Appellant’s Brief in our personal
capacity; we have read and understood the allegations therein and hereby
certify that the same is true and correct based on our own personal
knowledge and on authentic documents;

We have not commenced any other action or proceeding of this nature

before this Honorable Lower Courts, the Court of Appeals, or any Division
thereof, or before the Supreme Court or any Divisions of the said Highest
Court or any other tribunal or agency, that no such action or proceeding is
likewise pending therein and should we thereafter come to known that a
similar action of proceeding has been filed or is pending, we undertake to
report such fact before this Honorable Court within five (5) days from such
knowledge.

JAIRUS ATUP
Affiant
CTC No. _________________________
Issued on _______________________
Issued at ________________________
Valid ID _________________________________________

JOHN PAUL ATUP

Affiant
CTC No. _________________________
Issued on _______________________
Issued at ________________________
Valid ID _________________________________________

SUBSCRIBED AND SWORN to before me this _____ day of _________ 2015 in

the City of Cebu, Philippines, affiant exhibited to me their Community Tax
Certificates and valid ID with details listed above,.
Copy received by:

AFFIDAVIT OF SERVICE
BY REGISTERED MAIL WITH EXPLANATION

I, NOEL PERALES, of legal age being the messenger of ATTY. BAYANI S.

ATUP with address at M. Lhuillier Bldg., Benedicto Street, North Reclamation
Area, Cebu City, Philippines, after having sworn to in accordance with law,
hereby depose and says:

On _________________________________, I served a copy of the following

pleading/paper by registered mail in accordance with Section 7, in relation to
Section, both of Rule 13 of the 1997 Rules of Civil Procedure:

Appellants’ Brief
 PEOPLE OF THE PHILIPPINES
Complainant-Appellee

versus

JAIRUS ATUP & JOHN PAUL ATUP

Accused-Appellants

CA-GR CV-No. __________

RTC Branch 51, Carmen, Bohol
RTC Case No. 0101, 0101-A. 0102 & 0103

By depositing a copy thereof in the Post Office, in a sealed envelope plainly

addressed to the party(ies) or his/her/their counsel(s) at his/her/their
residence(s)/office(s) listed hereunder, with postage fully prepaid per
registry receipt number(s) indicated opposite his/her/their names(s) and the
original receipt(s) being attached to the original of the pleading mailed, and
with instructions to the postmaster to return the mail to the sender after ten
(10) days if undelivered, to wit:

Name Address Receipt No.

Solicitor General Office of the Solicitor General

134 Amorsolo St., Legaspi Village
1229 Makati City

The Presiding Judge Regional Trial Court, Branch 51

Carmen, Bohol, Philippines

Atty. Sulpicio A. Tinampay Counsel for the Private Complainant

Gallares St., Tagbilaran City, Bohol

Atty. Michael Doria Counsel for Accused Ronde Estorba

Sierra Bullones, Bohol

Furthermore, as required under Section 11 of the same Rule, I submit

the following explanation as to why (_______) personal filing in court (____X____)
personal service of the aforesaid pleading/paper was not resorted to:

(______) personal service cannot be effected within the deadline;

(___x__) the address(es) of the party(ies)/counsel(s) is/are far from that
of our law office;
(___x__) our law firm does not have sufficient personnel to effect
personal
service of all the numerous pleadings its prepares everyday;
(______) other reasons _________________________________________________________

NOEL PERALES
Name of Affiant

SUBSCRIBED AND SWORN to before me this ________ day of

_________________ 2015 in the City of Cebu, Philippines, affiant exhibited to me
his Community Tax Certificate No. ______________________________ issued at Cebu
City issued on ________________________, and his valid identification document
known as PhilHealth I.D. No. 19-090023689-5.