[REMREV] - Case Compilation (Rules 122-125)Doc

1. CORAZON MACAPAGAL,Petitioner,vs. PEOPLE OF THE PHILIPPINES,Respondent.

[G.R. No. 193217, February 26, 2014, PERALTA,J.:]

TOPIC: CRIMPRO RULE 122 - AppealFACTS:

1. RTC rendered a decision finding Macapagal guilty of the crime of Estafa for misappropriating, for her own benefit, the total amount ofP800,000.00, which is the value of the unreturned and unsold pieces of jewelry2. January 13, 2009: Macapagal received the decision then she timely moved for reconsiderationa. May 20, 2009; an Order was issued denying her MR b. July 31, 2009: Macapagal received the Order denying the MR

3. August 3, 2009: Macapagal filed a Notice of Appeal

a. June 29, 2010: Denial of the Notice of Appeal for having been filed out of time

ISSUE: Whether the appeal filed by Macapagal was the appropriate remedyHELD: NO. Petition denied. 1. Macapagal availed of the wrong mode of assailing the trial courts denial of her notice of appeal. Under Rule 122 of the Rules of Court: SEC. 2. Where to appeal. The appeal may be taken as follows:

x x x x

(b) To the Court of Appeals or to the Supreme Court in the proper cases provided by law, in cases decided by the Regional Trial Court; and

x x x x

SEC. 3. How appeal taken. (a) The appeal to the Regional Trial Court or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal filed with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party.

SEC. 6. When appeal to be taken. An appeal must be taken within fifteen days from promulgation of the judgment or from notice of the final order appealed from x x x.

a. disallowance of the notice of appeal signifies the disallowance of the appeal itselfb. A petition for review under Rule 45 of the Rules of Court is a mode of appeal of a lower courts decision or final order direct to the Supreme Court. However, the questioned Order denying her notice of appeal is not a decision or final order from which an appeal may be taken.

i. the aggrieved party can elevate the matter through a special civil action under Rule 65. Thus, in availing of the wrong mode of appeal in this petition under Rule 45 instead of the appropriate remedy of Rule 65, the petition merits an outright dismissal

2. even if the Court treat the petition as one for certiorari under Rule 65, it is still dismissible for violation of the hierarchy of courts.

a. Direct resort to the SC is allowed only if there are special, important and compelling reasons clearly and specifically spelled out in the petition, which are not present in this case

3. A petition for review on certiorari under Rule 45 of the Rules of Court must contain a certified true copy or duplicate original of the assailed decision, final order or judgment.a. In this case, Macapagal attached to the petition only the June 29, 2010 RTC Order denying her notice of appeal but she failed to attach a clearly legible duplicate original or a certified true copy of the assailed decision convicting her of estafa and the order denying her motion for reconsideration.

b. The main reason for the prescribed attachments is to facilitate the review and evaluation of the petition by making readily available to the Court all the orders, resolutions, decisions, pleadings, transcripts, documents, and pieces of evidence that are material and relevant to the issues presented in the petition without relying on the case records of the lower court.4. Macapagals repeated disregard of the Rules and the Courts lawful orders caused the dismissal of the casea. On September 15, 2010, the SC required Macapagal to fully comply with the Rules and order it to submit the requirements but she did not comply. b. Although Macapagals counsel was granted the extension it sought, it still did not submit the requirements needed. 5. The requirements of the rules on appeal cannot be considered as merely harmless and trivial technicalities that can be discarded at whim. In these times when court dockets are clogged with numerous litigations, parties have to abide by these rules with greater fidelity in order to facilitate the orderly and expeditious disposition of cases. [G.R. No. 172873 : March 19, 2010]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. ROLDAN MORALES Y MIDARASA, APPELLANT.

Facts: Appellant was charged in two separate Informations before the RTC: possession and sale of shabu. The testimonies of PO1 Eduardo Roy (PO1 Roy) and PO3 Armando Rivera (PO3 Rivera) were presented by the prosecution:

PO1 Roy testified that he met the informant who, upon seeing the subject appellant, went with him to meet PO1 Roy. After being introduced to the appellant as a buyer of "shabu", appellant immediately produced a sachet containing the alleged drug. When appellant received the marked money, PO1 Roy raised his left hand, at which point PO3 Rivera appeared and immediately arrested the appellant. The appellant was immediately brought to the Police Station for investigation, while the two sachets of "shabu" and aluminum foil discovered on the said appellant were brought to the Crime Laboratory for examination.

PO3 Rivera testified that he was the back-up officer of PO1 Roy, the poseur-buyer in the buy-bust operation conducted against the appellant. He conducted a short: the place of the operation which is at the parking lot of Jollibee Philcoa; the identification of the suspect as the appellant; and the preparation of the buy-bust money to be used. In the venue of buy-bust operation, he had a clear view of the appellant with the informant and PO1 Roy. Shortly thereafter, he saw PO1 Roy make the pre-arranged signal at which point he approached the appellant to arrest him. He recovered the marked money from the appellant and proceeded to frisk the latter. Upon conducting the body search, he found another sachet which he suspected to be "shabu" and two aluminum foils. Appellant was brought to the Police Station for detention, while the items seized from him were brought to the Crime Laboratory for examination. The two sachets tested positive for shabu while the aluminum foil sheets tested negative of the aforementioned substance.

The defense presented the testimonies of Joaquin Artemio Marfori, Arsenia Morales and the appellant:

Appellant denied the charges against him. He was in Manila at that time to bring money for his parents who live at Cruz na Ligas. As his mother did not give him enough money for his fare back to Quezon, he sidelined as a parking attendant at Philcoa in order to earn the balance of his bus fare. However, sometime that afternoon, two male persons in civilian clothes suddenly approached him and his co-attendant, identified themselves as policemen and poked their guns at them.[32] The said policemen handcuffed them and proceeded to frisk them.[33] He averred that nothing was found on him and yet the policemen still brought him to the police station. He denied the allegation made against him that he sold, much less possessed, the "shabu" subject of this action. He further testified that in the tricycle on the way to the police station, PO1 Roy took out a plastic of "shabu" from his (PO1 Roy's) pocket and once at the station, the said policeman showed it to the desk officer and claimed that the plastic sachet was found on the appellant.

He likewise denied having received the buy-bust money and claimed that the P50.00 bill and the two P20.00 bills, totaling P90.00, were given to him by his mother for his bus fare to Quezon. He disclaimed any knowledge of the P10.00 bill. He further testified that he personally knew PO3 Rivera prior to the arrest, since his first cousin and PO3 Rivera had a quarrel which he had no involvement whatsoever.[39] He noted the fact that it was PO3 Rivera who arrested him.

Witness Joaquin Artemio Marfori testified that he is the employer of the appellant in his agricultural and poultry supply store.[41] He further stated that he allowed the appellant to go on vacation on December 12, 2003 to celebrate the New Year with his family in Manila. However, the appellant failed to report back for work at the start of the New Year.

Finally, witness Arsenia Morales (Arsenia) corroborated the testimony of her son that she gave him P90.00, consisting of one P50.00 bill and two P20.00 bills as bus fare back to Laguna where he worked.[44] Thinking that her son was already on his way home, she was surprised to receive a call from her daughter informing her that her son, the appellant, was arrested for possession and sale of "shabu".

RTC: Guilty.

CA: Affirmed TC.

Appellant elevated the case to this Court via Notice of Appeal. In our Resolution, we resolved to accept the case and required the parties to submit their respective supplemental briefs simultaneously, if they so desire, within 30 days from notice. Both parties adopted their respective appellant's and appellee's briefs, instead of filing supplemental briefs.

Issue: W/N the CA should have affirmed in toto the findings of TC?

Held: No.

Appellant claims that he should not be convicted of the offenses charged since his guilt has not been proven by the prosecution beyond reasonable doubt. In support of his contention, appellant alleges that the arresting officers did not even place the proper markings on the alleged shabu and paraphernalia at the time and place of the alleged buy-bust operation. Appellant hence posits that this created serious doubt as to the items and actual quantity of shabu recovered, if at all.

OSG: the direct testimony of the two arresting officers sufficiently established the elements of illegal sale and possession of shabu.

At the outset, we draw attention to the unique nature of an appeal in a criminal case: the appeal throws the whole case open for review and it is the duty of the appellate court to correct, cite and appreciate errors in the appealed judgment whether they are assigned or unassigned. On the basis of such review, we find the present appeal meritorious.

Prevailing jurisprudence uniformly hold that the trial court's findings of fact, especially when affirmed by the CA, are, as a general rule, entitled to great weight and will not be disturbed on appeal. However, this rule admits of exceptions and does not apply where facts of weight and substance with direct and material bearing on the final outcome of the case have been overlooked, misapprehended or misapplied. After due consideration of the records of this case, evidence presented and relevant law and jurisprudence, we hold that this case falls under the exception.

In actions involving the illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.

On the other hand, in prosecutions for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of the drug. Similarly, in this case, the evidence of the corpus delicti must be established beyond reasonable doubt.

With respect to corpus delicti, Section 21 of Republic Act (RA) No. 9165 provides:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources or dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the persons/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; x x x (Emphasis supplied)

We declared in People v. Orteza, that the failure to comply with Paragraph 1, Section 21, Article II of RA 9165 implied a concomitant failure on the part of the prosecution to establish the identity of the corpus delicti.

More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu.

In the instant case, it is indisputable that the procedures for the custody and disposition of confiscated dangerous drugs, as mandated in Section 21 of RA 9165, were not observed. The records utterly failed to show that the buy-bust team complied with these procedures despite their mandatory nature as indicated by the use of "shall" in the directives of the law. The procedural lapse is plainly evident from the testimonies of the two police officers presented by the prosecution, namely: PO1 Roy and PO3 Rivera.

PO1 Roy, in his testimony, failed to concretely identify the items seized from the appellant. Moreover, he confirmed that they did not make a list of the items seized. The patent lack of adherence to the procedural mandate of RA 9165 is manifest in his testimony.

Q-If the said sachet and paraphernalia will be shown to you, how would you be able to identify the said items?

Witness A-I could not recall "pare-pareho yung shabu"

Atty. Mosing: I will object because that would be leading on the part of the prosecution because he could not identify on what shabu.

That question is overruled.

Q-Did you not make a list of items you have confiscated in this case?

A-No, we turned it over to the investigator.

Q-You have presented the buy bust money a while ago, was that buy bust money suppose to be turned over to the investigator?

A-No, inquest. Upon request, I was the one who received it.

Other than PO1 Roy and PO3 Rivera, the prosecution did not present any other witnesses. Hence, the investigator, referred to by PO1 Roy in his testimony as the one who took delivery of the seized items, was not identified nor was he presented in court. More importantly, the testifying police officers did not state that they marked the seized drugs immediately after they arrested the appellant and in the latter's presence. Neither did they make an inventory and take a photograph of the confiscated items in the presence of the appellant. There was likewise no mention of any representative from the media and the Department of Justice, or any elected public official who participated in the operation and who were supposed to sign an inventory of seized items and be given copies thereof. None of these statutory safeguards were observed.

Even PO1 Roy, the poseur-buyer, was not certain as to the identity of the confiscated shabu, to wit:

The procedural lapses in the handling and identification of the seized items collectively raise doubts as to whether the items presented in court were the exact same items that were confiscated from appellant when he was apprehended.

While this Court recognizes that non-compliance by the buy-bust team with Section 21 of RA 9165 is not fatal as long as there is a justifiable ground therefor, for and as long as the integrity and the evidentiary value of the siezed items are properly preserved by the apprehending team, these conditions were not met in the case at bar. No explanation was offered by the testifying police officers for their failure to observe the rule. In this respect, we cannot fault the apprehending policemen either, as PO1 Roy admitted that he was not a PDEA operative and the other witness, PO3 Rivera, testified that he was not aware of the procedure involved in the conduct of anti-drug operations by the PNP. In fine, there is serious doubt whether the drug presented in court was the same drug recovered from the appellant. Consequently, the prosecution failed to prove beyond reasonable doubt the identity of the corpus delicti.

In fine, the identity of the corpus delicti in this case was not proven beyond reasonable doubt. There was likewise a break in the chain of custody which proves fatal to the prosecution's case. Thus, since the prosecution has failed to establish the element of corpus delicti with the prescribed degree of proof required for successful prosecution of both possession and sale of prohibited drugs, we resolve to ACQUIT Roldan Morales y Midarasa.

G.R. No. 170289 April 8, 2010

ROSIE QUIDET, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.FACTS:On January 13, 1992, petitioner Rosie Quidet, Feliciano Taban, Jr., and Aurelio Tubo were charged with homicide in Criminal Case No. 92-079 for the death of Jimmy Tagarda.

On even date, the aforesaid accused were charged with frustrated homicide in Criminal Case No. 92-080 for the stab wounds sustained by Jimmys cousin, Andrew Tagarda, arising from the same incident.

Upon arraignment, all the accused entered a plea of not guilty in the frustrated homicide case. Meanwhile, in homicide case, Taban entered a voluntary plea of guilt while petitioner and Tubo maintained their innocence. Accordingly, on June 24, 1992, the trial court rendered a partial judgment sentencing Taban to imprisonment of six (6) years and one (1) day of prision mayor, as minimum, to twelve (12) years, two (2) months and one (1) day of reclusion temporal, as maximum, and ordering him to pay the heirs of Jimmy P50,000.00 as civil indemnity. Thereafter, joint trial ensued.Version of the Prosecution On October 19, 1991, at around 8:00 oclock in the evening, Jimmy, Andrew, Edwin Balani, and Rolando Mabayo visited a friend in Sitio Punta, Looc, Salay, Misamis Oriental. Along the way, they saw Taban, together with petitioner and Tubo, come out of the house of one Tomas Osep. Taban suddenly stabbed Andrew on the chest with a knife. Andrew retaliated by boxing Taban. Jimmy tried to pacify Andrew and Taban but the latter stabbed him in the abdomen. Taban then immediately fled.

Meanwhile, after Jimmy fell down, Tubo threw a drinking glass at Andrews face while petitioner boxed Andrews jaw. Tubo stabbed Jimmy who was then lying face down on the ground twice on the back with an ice pick after which he fled. Petitioner then boxed Jimmys mouth. At this juncture, Balani rushed to Jimmys aid and boxed petitioner who retaliated by punching Balani. Thereafter, petitioner left the scene. Mabayo was unable to help Jimmy or Andrew because he was shocked by the incident.

Upon arrival at the hospital, Jimmy was declared dead by the attending physician, Dr. Cedric Dael. Jimmy sustained a vital or mortal stab wound at the epigastric area four centimeters below the cyphoid process and another stab wound on the left lumbar. Andrew, who sustained minor injuries, was treated by Dr. Dael.Version of the Defense On the night of the stabbing incident, Taban, Tubo and petitioner were drinking liquor in the house of Osep. Taban left the group to urinate on a nearby coconut tree. Outside Oseps house, he was suddenly boxed by Andrew and kicked by Jimmy causing him to fall near a fishing boat. There Taban found a fishing knife with which he stabbed Jimmy and Andrew in order to defend himself. After which, he fled for fear for his life. Meanwhile, petitioner went out to look for Taban. As he was stepping out of Oseps house, he was boxed by Balani. Petitioner fought back. Andrew tried to help Balani but petitioner was able to evade Andrews attacks. Instead, petitioner was able to box Andrew. Petitioner then called out to Tubo to come out and run. When Tubo stepped out of the house, neither Taban nor petitioner was present but he saw a person being lifted by several people. Upon seeing this, Tubo, likewise, fled for fear for his life.Ruling of the Regional Trial CourtOn May 16, 1995, the RTC rendered a judgment finding petitioner and Tubo guilty of homicide and all three accused (petitioner, Tubo and Taban) guilty of frustrated homicide.

The trial court found that the stabbing of Jimmy and Andrew was previously planned by the accused. The active participation of all three accused proved conspiracy in the commission of the crimes. Furthermore, the positive identification of the accused by the prosecution witnesses cannot be offset by the defense of plain denial.

From this judgment, only petitioner appealed to the CA.Ruling of the Court of Appeals On July 22, 2005, the CA promulgated the assailed Decision, affirming with modifications wherein it deleted the award civil indemnity that was granted and changing the frustrated homicide case to attempted homicide.ISSUE:Whether the Decision of the CA finding petitioner to have acted in conspiracy with the other accused (Taban and Tubo) in the commission of the offenses charged is in accordance with law and/or jurisprudence. - NOWhether or not the petitioner's co-accused, who did not appeal their case, can avail of the reduced penalty of the petitioner. (This is the only part of the case the is in connection with REM law) - YESHELD:The petition is partly meritorious.The existence of conspiracy was not proved beyond reasonable doubt. Thus, petitioner is criminally liable only for his individual acts.Conspiracy can be inferred from and established by the acts of the accused themselves when said acts point to a joint purpose and design, concerted action and community of interests. However, in determining whether conspiracy exists, it is not sufficient that the attack be joint and simultaneous for simultaneousness does not of itself demonstrate the concurrence of will or unity of action and purpose which are the bases of the responsibility of the assailants. What is determinative is proof establishing that the accused were animated by one and the same purpose.

To determine if petitioner conspired with Taban and Tubo, the focus of the inquiry should necessarily be the overt acts of petitioner before, during and after the stabbing incident. From this viewpoint, we find several facts of substance which militate against the finding that petitioner conspired with Taban and Tubo.

First, there is no evidence that petitioner, Taban or Tubo had any grudge or enmity against Jimmy or Andrew. The prosecution eyewitnesses (Andrew and Balani) as well as the three accused were one in testifying that there was no misunderstanding between the two groups prior to the stabbing incident.

Second, the stabbing incident appears to have arisen from a purely accidental encounter between Tabans and Andrews groups with both having had a drinking session.

Third, unlike Taban and Tubo, petitioner was unarmed during the incident, thus, negating his intent to kill the victims. By the prosecution witnesses account, petitioners participation was limited to boxing Andrew and Jimmy after Taban and Tubo had stabbed the victims. His acts were neither necessary nor indispensable to the commission of the crimes as they were done after the stabbing. Thus, petitioners act of boxing the victims can be interpreted as a mere show of sympathy to or camaraderie with his two co-accused.

Taken together, the evidence of the prosecution does not meet the test of moral certainty in order to establish that petitioner conspired with Taban and Tubo to commit the crimes of homicide and attempted homicide.

For failure of the prosecution to prove conspiracy beyond reasonable doubt, petitioners liability is separate and individual. Considering that it was duly established that petitioner boxed Jimmy and Andrew and absent proof of the extent of the injuries sustained by the latter from these acts, petitioner should only be made liable for two counts of slight physical injuries. In addition, he should pay P5,000.00 as moral damages to the heirs of Jimmy and another P5,000.00 as moral damages to Andrew. Actual damages arising from said acts cannot, however, be awarded for failure to prove the same. Anent the penalty imposed on Taban and Tubo, in Criminal Case No. 92-080, the CA correctly modified the same. The crime committed was attempted homicide and not frustrated homicide because the stab wounds that Andrew sustained were not life-threatening. Although Taban and Tubo did not appeal their conviction, this part of the appellate courts judgment is favorable to them, thus, they are entitled to a reduction of their prison terms. The rule is that an appeal taken by one or more of several accused shall not affect those who did not appeal except insofar as the judgment of the appellate court is favorable and applicable to the latter.ventive imprisonment prior to and during the trial of this case. This can be surmised from the motion to grant bail filed by petitioner which was subsequently granted by the trial court. It is not clear, however, for how long and under what conditions they were put in preventive imprisonment. The trial court should, thus, determine the length and conditions of the preventive imprisonment so this may be credited, if proper, in favor of the accused as provided in Article 29 of the Revised Penal Code.WHEREFORE, the petition is PARTIALLY GRANTED. The July 22, 2005 Decision of the Court of Appeals in CA-G.R. CR No. 23351 is AFFIRMED with the following MODIFICATIONS:

1) In Criminal Case No. 92-079, Rosie Quidet is found guilty beyond reasonable doubt of slight physical injuries and is meted the sentence of fifteen (15) days of arresto menor. He is ordered to pay the heirs of Jimmy Tagarda P5,0000.00 as moral damages. Feliciano Taban, Jr. and Aurelio Tubo are ordered to solidarily pay the heirs of Jimmy Tagarda P50,0000 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as temperate damages.

2) In Criminal Case No. 92-080, Feliciano Taban, Jr. and Aurelio Tubo are found guilty beyond reasonable doubt of attempted homicide and are meted the sentence of four (4) months of arresto mayor in its medium period as minimum to four (4) years of prision correccional in its medium period as maximum. They are ordered to solidarily pay Andrew Tagarda P30,000.00 as moral damages. Rosie Quidet is found guilty beyond reasonable doubt of slight physical injuries and is meted the sentence of fifteen (15) days of arresto menor. He is ordered to pay Andrew Tagrda P5,000.00 as moral damages

3) The period of preventive imprisonment of Feliciano Taban, Jr., Aurelio Tubo and Rosie Quidet shall be credited in their favor in accordance with Article 29 of the Revised Penal Code.

4) The bail bond of Rosie Quidet is cancelled.

SO ORDERED.

People vs. BalabaFacts:

On 18 and 19 October 1993, State Auditors Arlene Mandin and Loila Laga of the Provincial Auditors Office conducted an examination of the cash and accounts of the accountable officers of the Municipality of Guindulman, Bohol. The State Auditors discovered a cash shortage ofP56,321.04, unaccounted cash tickets ofP7,865.30 and an unrecorded check ofP50,000 payable to Balaba, or a total shortage ofP114,186.34. Three demand letters were sent to Balaba asking him to explain the discrepancy in the accounts. Unsatisfied with Balabas explanation, Graft Investigation Officer I Miguel P. Ricamora recommended that an information for Malversation of Public Funds, as defined and penalized under Article 217 of the Revised Penal Code, be filed against Balaba with the Sandiganbayan.In an Informationdated 26 April 1995, the Office of the Special Prosecutor charged Balaba with the crime of Malversation of Public Funds.

During his arraignment on 17 May 1996, Balaba entered a plea of not guilty. Trial soon followed.

On 9 December 2002, the trial court found Balaba guilty.

On 14 January 2003, Balaba filed his Notice of Appeal, where he indicated that he would file his appeal before the Court of Appeals.On 6 August 2003, Balaba filed his Appellants Brief.

The Office of the Solicitor General, instead of filing an Appellees Brief, filed a Manifestation and Motionpraying for the dismissal of the appeal for being improper since the Sandiganbayan has exclusive jurisdiction over the appeal.

In its 15 December 2004 Decision, the Court of Appeals dismissed Balabas appeal. The Court of Appeals declared that it had no jurisdiction to act on the appeal because the Sandiganbayan has exclusive appellate jurisdiction over the case.

On 27 January 2005, Balaba filed a Motion for Reconsideration and asked that he be allowed to pursue his appeal before the proper court, the Sandiganbayan.In its 24 August 2005 Resolution, the Court of Appeals denied Balabas motion.

On 7 October 2005, Balaba filed his present petition before this Court where he raised the sole issue of whether the Court of Appeals erred in dismissing his appeal instead of certifying the case to the proper court. Balaba claims that it was due to inadvertence that the notice of appeal was filed before the Court of Appeals instead of the Sandiganbayan. Balaba adds that his appeal was dismissed on purely technical grounds. Balaba asks the Court to relax the rules to afford him an opportunity to correct the error and fully ventilate his appeal on the merits.

Issues:

1. W/N the CA erred in dismissing Balaba's appeal instead of certifying the case to the proper court.

2. W/N the Sandiganbayan has the exclusive appellate jurisdiction over the appeal.

Held:

1. No.

2. Yes.

Upon Balabas conviction by the trial court, his remedy should have been an appeal to the Sandiganbayan. Paragraph 3, Section 4(c) of Republic Act No. 8249 (RA 8249),which further defined the jurisdiction of the Sandiganbayan, reads:

TheSandiganbayanshall exerciseexclusive appellate jurisdictionover final judgments, resolutions or orders of the regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. (Emphasis ours)

There is nothing in said paragraph which can conceivably justify the filing of Balabas appeal before the Court of Appeals instead of the Sandiganbayan. Clearly, the Court of Appeals is bereft of any jurisdiction to review the judgment Balaba seeks to appeal.

InMelencion v. Sandiganbayan,we ruled:

An error in designating the appellate court is not fatal to the appeal. However, the correction in designating the proper appellate court should be made within the 15-day period to appeal. Once made within the said period, the designation of the correct appellate court may be allowed even if the records of the case are forwarded to the Court of Appeals. Otherwise, the second paragraph of Section 2, Rule 50 of the Rules of court would apply. The second paragraph of Section 2, Rule 50 of the Rules of Court reads:

"An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright."

In this case, Balaba sought the correction of the error in filing the appeal only after the expiration of the period to appeal. The trial court promulgated its Decision on 9 December 2002. Balaba filed his notice of appeal on 14 January 2003. The Court of Appeals issued the Decision declaring its lack of jurisdiction on 15 December 2004. Balaba tried to correct the error only on 27 January 2005, clearly beyond the 15-day period to appeal from the decision of the trial court. Therefore, the Court of Appeals did not commit any error when it dismissed Balabas appeal because of lack of jurisdiction.

People v Olivo

G.R. No. 177768

July 27, 2009

TOPIC: Appeal

NATURE: Petition for Review under Rule 45 appealing the decision of the Court of Appeals, which affirmed the decision of the RTC, finding the defendants guilty of robbery with homicide.

Defendants: Charmen Olivo, Nelson Danda and Joey Zafra

FACTS:

1. The appellants (three of them) were accused to have committed robbery with homicide, robbing a hardware store in Quezon City and killing the owner of the hardware store by shooting him with the gun and hitting him on the trunk and his extremities.

2. The prosecution states that Maricel Permejo was tending the store of the late Mariano Constantino on 21 November 2000, three (3) armed men barged in at around 6:30 oclock in the evening and ordered her to bring out the money. When she refused, accused Nelson Danda kicked her leg while accused Joey Zafra proceeded to get the money amounting to P35,000.00 from the cash register.

3. Meanwhile, the owner Constantino entered his store and shouted. Accused Charmen Olivo pointed a gun at him. Constantino ran to the back of the house and accused Olivo chased him. Successive gunshots were subsequently heard.

4. Permejo looked for her employer and found him wounded and bloodied along the stairway of the house. She sought help from a neighbor and the victim was brought to the Fairview [General] Hospital where he expired.

5. The defense, on the other hand, stated that While accused Olivo was fetching water along Barangay Holy Spirit in Payatas, Quezon City on 24 November 2000, policemen in civilian clothes mauled and arrested him sans a warrant. Together with two (2) others, they were brought to Station 6 allegedly for violation of R.A. 6425. A woman came and accused Olivo was taken out. The policemen asked her, ito ba? which she answered in the negative. The same question was repeated twice but the answer was not changed.

6. The accused were imprisoned at Camp Karingal. They were asked their names. The same woman arrived thereat and at a distance of 1 meters, accused Olivo heard the policemen telling the woman ituro mo na. The woman then mentioned accused Olivos name

7. RTC: Convicted the accused of robbery with homicide.

8. Only Olivo and Danda appealed to the Court of Appeals.

9. CA: Affirmed the decision of the RTC

ISSUE: Whether the appellants should be convicted of the crime despite the prosecution failing to prove their guilt beyond reasonable doubt.

HELD: Appellants are found NOT GUILTY.

It is settled that when the issue is the evaluation of the testimony of a witness or his credibility, this Court accords the highest respect and even finality to the findings of the trial court, absent any showing that it committed palpable mistake, misappreciation of facts or grave abuse of discretion. It is the trial court which has the unique advantage of observing first-hand the facial expressions, gestures and the tone of voice of a witness while testifying.

The well-entrenched rule is that findings of the trial court affirmed by the appellate court are accorded high respect, if not conclusive effect, by this Court, absent clear and convincing evidence that the tribunals ignored, misconstrued or misapplied facts and circumstances of substances such that, if considered, the same will warrant the modification or reversal of the outcome of the case.

Factual findings of trial courts, when substantiated by the evidence on record, command great weight and respect on appeal, save only when certain material facts and circumstances were overlooked and which, if duly considered, may vary the outcome of the case.

In this case, the material fact and circumstance that the lone alleged eyewitness, Maricel Permejo, was not able to identify the accused-appellants as the perpetrators of the crime, varies the outcome of this case. This circumstance was established during the direct examination of Olivo and was not rebutted by the prosecution during cross-examination or in its pleadings.

The fact that Permejo was not able to identify accused-appellants as the perpetrators of the crime impinges heavily on the credibility of prosecutions evidence. For if, indeed, the accused-appellants were the malefactors of the crime who did not hide their faces during the robbery, the eyewitness, who had such close, traumatic encounter with them, should automatically have recalled their faces upon seeing them. It behooves this Court to declare that she was not able to do so positively.

Having ignored the abovementioned important circumstance, the trial court misconstrued and misapplied facts and circumstances of the case, warranting the modification or reversal of the outcome of the case. The trial court grievously erred when it ruled that the lone prosecution eyewitness categorically and positively identified accused-appellants as the perpetrators of the crime.

We cannot convict appellants for the special complex crime of robbery with homicide when the evidence relied upon by the trial court is plainly erroneous and inadequate to prove appellants guilt beyond reasonable doubt. Conviction must rest on nothing less than moral certainty, whether it proceeds from direct or circumstantial evidence

One final note. The other accused, Joey Zafra, who is identically circumstanced as the other appellants and who was likewise convicted on the same evidence, does not appear to have perfected an appeal from the trial courts judgment. The record does not show the reason therefor.

Be that as it may, the present rule is that an appeal taken by one or more several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter. Our pronouncements here with respect to the insufficiency of the prosecution evidence to convict appellants beyond reasonable doubt are definitely favorable and applicable to accused Joey Zafra. He should not therefore be treated as the odd man out and should benefit from the acquittal of his co-accused. In fact, under similar conditions and on the same ratiocination, Section 11(a), Rule 122 of the Rules of Court has justified the extension of our judgment of acquittal to the co-accused who failed to appeal from the judgment of the trial court which we subsequently reversed

MERCEDITA T. GUASCH,Petitioner,

ARNALDO DELA CRUZ,Respondent.(2009)FACTS:Respondent Arnaldo dela Cruz filed a Complaint-Affidavitagainst petitioner Mercedita Guasch with the City Prosecutor of Manila.Respondent alleged that petitioner Guasch was his neighbor andkumadre.On several occasions, petitioner transacted business with him by exchanging cash for checks of small amount without interest.

July 26, 1999: petitioner went to his residence requesting him to exchange her check with cash ofP3,300,000.00.Initially, he refused.However, Guasch returned the next day and was able to convince him to give herP3,300,000.00 in cash in exchange for her Insular Savings Bank Check dated January 31, 2000 upon her assurance that she will have the funds and bank deposit to cover the said check by January 2000.On the date of maturity and upon presentment, however, the check was dishonored. The account was already closed.

The City Prosecutor of Manila filed an Informationfor estafa against petitioner Guasch.After petitioner entered her plea of not guilty and after the prosecution rested its case, petitioner filed a Motion With Leave To Admit Demurrer to Evidence with attached Demurrer to Evidence on April 1, 2005. The trial court issued an Order dated June 16, 2005 granting the demurrer to evidence and dismissing the case.The trial court found that respondents assertion of misrepresentation by petitioner that her check will be fully funded on the maturity date was not supported by the evidence on record.Accordingly, her guilt not having been proven beyond reasonable doubt, petitioner was acquitted.

June 28, 2005; respondent received a copy of the said order.July 14, 2005; respondent filed a Manifestation with attached Motion to Amend Order dated June 16, 2005 (Motion to Amend) to include a finding of civil liability of petitioner.In the Manifestation, respondents counsel justified his failure to file the motion within the reglementary period of 15 days because all postal offices in Metro Manila were allegedly ordered closed in the afternoon due to the rally onAyala Avenue.

August 30, 2005: respondent filed a Petition for Certiorari with the CA praying that the trial courts Order dated June 16, 2005 granting the demurrer to evidence be set aside.

The trial court denied respondents Motion to Amend in its Order dated September 20, 2005 finding that counsel for respondent was inexcusably negligent; hence, the Order dated June 16, 2005 has become final and executory.Respondent filed a Motion for Reconsideration but the same was denied by the trial court in its Orderdated November 7, 2005.

December 7, 2005: respondent filed a Notice of Appeal informing the trial court that he was appealing the Order dated September 20, 2005 and the Order dated November 7, 2005.The trial court likewise denied the notice of appeal in an Orderdated December 13, 2005.

February 13, 2006: respondent filed a Supplemental Petition for Certiorari with the Court of Appeals to set aside the Order dated September 20, 2005, the Order dated November 7, 2005, and the Order dated December 13, 2005.

August 31, 2006: the CA rendered the assailed Decision.

a. On the issue of whether the issuance of the Order dated June 16, 2005 granting the demurrer to evidence was made with grave abuse of discretion, the CA ruled in the negative as it found that the trial court did not anchor the acquittal of petitioner on evidence other than that presented by the prosecution as contended by petitioner.

b. On the issue of whether the denial of respondents Motion to Amend was tainted with grave abuse of discretion, the Court of Appeals ruled in the affirmative.The CA ratiocinated that matters of paramount importance outweigh rules of procedure in this instance.

c. Accordingly, the CA ruled as follows: WHEREFORE, the assailed order dated September 20, 2005 denying petitioners Motion to Amend Order dated 16 [June] 2005 is hereby SET ASIDE.Public respondent is hereby directed to determine and fix the amount due the petitioner.

2. Petitioner filed a Motion for Partial Reconsiderationarguing that the CA erred in ruling that the trial court committed grave abuse of discretion when it denied respondents Motion to Amend.However, the same was denied by the CA.

ISSUE: Whether the CA erred in holding that the trial court committed grave abuse of discretion when it denied the respondents Motion to Amend.

HELD: NO. The SC affirmed the ruling of the CA.

Respondent contends that the delay of one day in filing his motion was due to circumstances beyond his control.He submitted a Certification from the Makati Central Post Office stating that it was closed in the afternoon of July 13, 2005 due to the rally alongAyala Avenueper declaration by the City Mayor. Petitioner, on the one hand, alleges that the denial of respondents Motion to Amend was due to the inexcusable negligence of respondents counsel; hence, the trial court did not commit grave abuse of discretion.Furthermore, the Order dated June 16, 2005 granting the demurrer to evidence has become final and executory and the remedy ofcertioraricannot be used as a substitute for a lost appeal.

Respondents counsel received a copy of the Order dated June 16, 2005 granting the demurrer to evidence on June 28, 2005.However, he only filed his Motion to Amend on July 14, 2005 which was one day beyond the 15-day reglementary period to file a motion for reconsideration of final orders of the trial court pursuant to Section 1, Rule 37 of the Rules of Court.

As a general rule, the statutory requirement that when no motion for reconsideration is filed within the reglementary period, the decision attains finality and becomes executory in due course must be strictly enforced as they are considered indispensable interdictions against needless delays and for orderly discharge of judicial business.The purposes for such statutory requirement aretwofold:first,to avoid delay in the administration of justiceand thus, procedurally, to make orderly the discharge of judicial business, and,second, to put an end to judicial controversies, at the risk of occasional errors, which are precisely why courts exist.Controversies cannot drag on indefinitely.The rights and obligations of every litigant must not hang in suspense for an indefinite period of time.

However, in exceptional cases, substantial justice and equity considerations warrant the giving of due course to an appeal by suspending the enforcement of statutory and mandatory rules of procedure. Certain elements are considered for the appeal to be given due course, such as: (1) the existence of special or compelling circumstances, (2) the merits of the case, (3) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules, (4) lack of any showing that the review sought is merely frivolous and dilatory, and (5) the other party will not be unduly prejudiced thereby.

Several of these elements obtain in the case at bar. First, there is ostensible merit to respondents cause. The records show that petitioner admits her civil obligation to respondent.In herKontra-Salaysay, petitioner alleged that she owed respondent a total ofP3,300,000.00 as a result of their joint lending business whereby petitioner borrows money from respondent with interest and petitioner, in turn, lends the money to her clients. Respondent did not waive, reserve, nor institute a civil action for the recovery of civil liability.As correctly observed by the CA, respondents actual and active participation in the criminal proceedings through a private prosecutor leaves no doubt with respect to his intentions to press a claim for the unpaid obligation of petitioner in the same action. Hence, since the civil action is deemed instituted with the criminal action, the trial court was duty-bound to determine the civil liability of petitioner pursuant to paragraph 2, Section 2, Rule 120 of the Rules on Criminal Procedure which provides: SECTION 2.Contents of the judgment. Xxx In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist.

Second,it cannot be said that petitioner will be unduly prejudiced if respondents Motion to Amend for the sole purpose of including the civil liability of petitioner in the order of acquittal shall be allowed. Foremost, petitioner admits her civil obligation to respondent.Respondent concededly has an available remedy even if his Motion to Amend was denied, which is to institute a separate civil action to recover petitioners civil liability. However, to require him to pursue this remedy at this stage will only prolong the litigation between the parties which negates the avowed purpose of the strict enforcement of reglementary periods to appeal, that is, to put an end to judicial controversies.Not only will that course of action be a waste of time, but also a waste of the resources of both parties and the court as well.To sustain the denial of the Motion to Amend the Order of June 16, 2005 on the ground that the private respondent was acquitted and the order of acquittal had already attained its final and executory stage simply because the motion was filed beyond the time fixed by the rules will necessarily constrain petitioner to institute a separate civil action which in the end results in needless clogging of court dockets and unnecessary duplication of litigation with all its attendant loss of time, effort and money on the part of all concerned. Finally, the amendment of the order of acquittal for the sole purpose of including therein the civil liability of private complainantwill not unduly prejudice her.It bears stressing that private complainant was the first to agree that the transaction is a loan and she never denied but even admitted her debt or obligation to herein petitioner.

A review of the records below shows that the evidence to make a determination of petitioners civil liability is already at the disposal of the trial court.For example, the checks covering the amounts owed by petitioner to respondent in the total amount ofP3,300,000.00 were already submitted by petitioner to the trial court as Annexes to the Motion to Quash that she filed.Neither can it be said that petitioners right to due process shall be violated if her civil liability be determined in the same case.InPadilla v. Court of Appeals, we held: There appear to be no sound reasons to require a separate civil action to still be filed considering that the facts to be proved in the civil case have already been established in the criminal proceedings where the accused was acquitted.Due process has been accorded the accused.He was, in fact, exonerated of the criminal charged.To require a separate civil action simply because the accused was acquitted would mean needless clogging of court dockets and unnecessary duplication of litigation with all its attendant loss of time, effort, and money on the part of all concerned. The petition is DENIED.The decision of the CA is affirmed.

People vs. Taruc

Doctrine:

Once an accused escapes from prison or confinement or jumps bail or flees to a foreign country, 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.

Facts:

1.That on or about November 8, 1998 Francisco Taruc , with intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack , assault and use personal violence upon Emelito Sualog (Elmer), by then and there shooting him with a Celiber (sic) 45 on the different parts of his body, thereby inflicting upon him mortal wounds which were the direct and immediate cause of his death, thereafter, to the damage and prejudice of the heirs of the said victim.

2.Upon arraignment on 25 April 2005, accused, duly assisted by a lawyer from the Public Attorneys Office (PAO), pleaded not guilty to the crime charged.

3.RTC: Guility of MURDER, penalty of DEATH

4.The case was brought to the Court of Appeals for automatic review

5.On 13 January 2006, accused-appellant, through the PAO, filed a Motion for Extension of Time to File Appellants Brief

6.the PAO lawyer concerned informed the Court of Appeals that accused-appellant escaped from prison on 23 August 2002. Said PAO lawyer claimed that he had no means of knowing the current whereabouts of the accused-appellant. Thereupon, the PAO lawyer asked the Court of Appeals to direct the Warden of the Provincial Jail in Balanga, Bataan, to file a certification as to the accused-appellants escape.7.The period of extension granted had lapsed without the accused-appellant filing his brief; thus, the Court of Appeals required the PAO to show cause why the latter should not be held in contempt for failing to file the same.

8.On 27 February 2008, the Court of Appeals rendered a Decision affirming with modification the Decision of the RTC.

9.On 13 March 2008, accused-appellant, still represented by the PAO, filed a Notice of Appeal stating that he was appealing the Decision of the Court of Appeals to the Supreme Court on questions of law and fact. And on 29 April 2008, the Court of Appeals gave due course to accused-appellants appeal and directed its Records Division to forward the rollo and records of the case to the Supreme Court.

10.He remains at large even while his counsel continues to file various pleadings on his behalf before the RTC, the Court of Appeals, and this Court.Issue: Given that the accused-appellant escaped from jail and eluded arrest until the present, the issue of whether he has lost his right to appeal his conviction inexorably ensues.

Held: YES! By escaping prison, accused-appellant impliedly waived his right to appeal. The Court of Appeals may, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal.

[O]nce an accused escapes from prison or confinement or jumps bail or flees to a foreign country, 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.

There are certain fundamental rights which cannot be waived even by the accused himself, but the right of appeal is not one of them. This right is granted solely for the benefit of the accused. He may avail of it or not, as he pleases. He may waive it either expressly or by implication. When the accused flees after the case has been submitted to the court for decision, he will be deemed to have waived his right to appeal from the judgment rendered against him x x x.

The accused cannot be accorded the right to appeal unless he voluntarily submits to the jurisdiction of the court or is otherwise arrested within 15 days from notice of the judgment against him. While at large, he cannot seek relief from the court, as he is deemed to have waived the appeal. Thus, having escaped from prison or confinement, he loses his standing in court; and unless he surrenders or submits to its jurisdiction, he is deemed to have waived any right to seek relief from the court.

By putting himself beyond the reach and application of the legal processes of the land, accused-appellant revealed his contempt of the law and placed himself in a position to speculate, at his pleasure on his chances for a reversal. In the process, he kept himself out of the reach of justice, but hoped to render the judgment nugatory at his option.Such conduct is intolerable and does not invite leniency on the part of the appellate court.

Accused-appellant, in the case at bar, has remained at large for most of the proceedings before the RTC, as well as for the entirety of the pendency of his appeal before the Court of Appeals, and even until now when his appeal is pending before this Court. He cannot so audaciously hope that his appeal before this Court would succeed. He only hopes in vain.

Tiu v People - TamondongColinares v. PeopleG.R. No. 182748 / December 13, 2011Topic: Rule 122 Appeal; Application for Probation despite appealQuick fact: This case is about when an accused who appeals may still apply for probation on remand of the case to the trial court.

Facts: The public prosecutor of Camarines Sur charged the accused Arnel Colinares frustrated homicide before the RTC.

Complainant Rufino testified that he and Jesus went out to buy cigarettes at a nearby store. On their way, Jesus took a leak by the roadside with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck Rufino twice on the head with a huge stone. Rufino fell unconscious as Jesus fled. Ananias testified that he he saw Rufino lying by the roadside. Ananias tried to help but someone struck him, knocking him out. He later learned that Arnel had hit him. Paciano testified that he saw the whole incident. He sought the help of a barangay tanod and they brought Rufino to the hospital.

Arnel claimed self-defense. He testified that he was on his way home that evening when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where he supposed the Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel several times on the back. Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending himself, struck Rufino on the head with it. When Ananias saw this, he charged towards Arnel and tried to stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with the same stone. Arnel then fled and hid in his sisters house. He voluntarily surrendered at the Tigaon Municipal Police Station.

Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night of the incident. His three companions were all drunk. On his way home, Diomedes saw the three engaged in heated argument with Arnel.

The RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of frustrated homicide and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for probation.Arnel appealed to the CA, invoking self-defense and, alternatively, seeking conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty imposed on him. The CA entirely affirmed the RTC decision.

The Court required Arnel and the Solicitor General to submit their respective positions on whether or not, assuming Arnel committed only the lesser crime of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum, he could still apply for probation upon remand of the case to the trial court.

The Solicitor General argues that under the Probation Law no application for probation can be entertained once the accused has perfected his appeal from the judgment of conviction.

Issue: Given a finding that Arnel is entitled to conviction for a lower offense and a reduced probationable penalty, whether or not he may still apply for probation on remand of the case to the trial court.

Held: FINDS petitioner Arnel Colinares GUILTY of attempted homicide, without prejudice to petitioner applying for probation

Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the RTC convicting him for frustrated homicide.

But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the maximum of the penalty imposed on him should be lowered to imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. With this new penalty, it would be but fair to allow him the right to apply for probation upon remand of the case to the RTC.

Some in the Court disagrees. They contend that probation is a mere privilege granted by the state only to qualified convicted offenders. Section 4 of the probation law (PD 968) provides: "That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction."15Since Arnel appealed his conviction for frustrated homicide, he should be deemed permanently disqualified from applying for probation.

But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to such privilege; he certainly does not have. What he has is the right to apply for that privilege. The Court finds that his maximum jail term should only be 2 years and 4 months. If the Court allows him to apply for probation because of the lowered penalty, it is still up to the trial judge to decide whether or not to grant him the privilege of probation, taking into account the full circumstances of his case.

Secondly, it is true that under the probation law the accused who appeals "from the judgment of conviction" is disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to Arnel:one, a conviction for frustrated homicide by the regional trial court, now set aside; and,two, a conviction for attempted homicide by the Supreme Court.

If the Court chooses to go by the dissenting opinions hard position, it will apply the probation law on Arnel based on the trial courts annulled judgment against him. He will not be entitled to probation because of the severe penalty that such judgment imposed on him. More, the Supreme Courts judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial courts judgmenteven if this has been found in error. And, worse, Arnel will now also be made to pay for the trial courts erroneous judgment with the forfeiture of his right to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is justice there?

The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would dilute the ruling of this Court in Francisco v. Court of Appeals16that the probation law requires that an accused must not have appealed his conviction before he can avail himself of probation. But there is a huge difference between Francisco and this case.

In Francisco, the MeTC of Makati found the accused guilty of grave oral defamation and sentenced him to a prison term of one year and one day to one year and eight months of prision correccional, a clearly probationable penalty. Probation was his to ask! Still, he chose to appeal, seeking an acquittal, hence clearly waiving his right to apply for probation. When the acquittal did not come, he wanted probation. The Court would not of course let him. It served him right that he wanted to save his cake and eat it too. He certainly could not have both appeal and probation.

The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his conviction before he can avail himself of probation. This requirement "outlaws the element of speculation on the part of the accusedto wager on the result of his appealthat when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an escape hatch thus rendering nugatory the appellate courts affirmance of his conviction."17Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not have a choice between appeal and probation. He was not in a position to say, "By taking this appeal, I choose not to apply for probation." The stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation under this Courts greatly diminished penalty will not dilute the sound ruling in Francisco. It remains that those who will appeal from judgments of conviction, when they have the option to try for probation, forfeit their right to apply for that privilege.

Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him. He claimed that the evidence at best warranted his conviction only for attempted, not frustrated, homicide, which crime called for a probationable penalty. In a way, therefore, Arnel sought from the beginning to bring down the penalty to the level where the law would allow him to apply for probation.

In a real sense, the Courts finding that Arnel was guilty, not of frustrated homicide, but only of attempted homicide, is an original conviction that for the first time imposes on him a probationable penalty. Had the RTC done him right from the start, it would have found him guilty of the correct offense and imposed on him the right penalty of two years and four months maximum.lavvphilThis would have afforded Arnel the right to apply for probation.

The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not served by a harsh and stringent interpretation of the statutory provisions.18As Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a mere privilege to be given to the accused only where it clearly appears he comes within its letter; to do so would be to disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law but to achieve its beneficent purpose.19One of those who dissent from this decision points out that allowing Arnel to apply for probation after he appealed from the trial courts judgment of conviction would not be consistent with the provision of Section 2 that the probation law should be interpreted to "provide an opportunity for the reformation of a penitent offender." An accused like Arnel who appeals from a judgment convicting him, it is claimed, shows no penitence.

This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it convicted Arnel of the wrong crime, frustrated homicide, that carried a penalty in excess of 6 years. How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months.

Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it would be sending him straight behind bars. It would be robbing him of the chance to instead undergo reformation as a penitent offender, defeating the very purpose of the probation law.

At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two years and four months maximum, he would have had the right to apply for probation. No one could say with certainty that he would have availed himself of the right had the RTC done right by him. The idea may not even have crossed his mind precisely since the penalty he got was not probationable.