Republic of the Philippines

COURTOF APPEALS
Cebu City
NINETEENTH DIVISION

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

-versus- CA GR. NO. 01221

Juan Dela Cruz,

Accused-Appellants,

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MEMORANDUM OF AUTHORITIES
(FOR THE ACCUSED-APPELLANTS)

ACCUSED-APPELLANTS, by counsel, unto this Honorable

Appellate Court, most respectfully submit their memorandum of
authorities as follows:

PREFATORY STATEMENTS AND MATERIAL DATES

The above-entitled case is appealed through a Petition for

Review under Rule 42 of the Rules of Court. On May 21, 2010, the
Honorable Appellate Court issued a Resolution directing the parties
to their respective memoranda of authorities within fifteen (15) days
from receipt of said resolution. Accused-appellants received their

1
copy through their counsel on June 7, 2010. Hence, they still have
until June 22, 2010 within which to submit this memorandum.

ISSUE

WHETHER OR NOT THE NOTICE OF APPEAL WAS FILED

WITHIN THE ALLOWABLE REGLEMENTARY PERIOD, OR
ASSUMING THE NOTICE OF APPEAL WAS INDEED FILED
OUT OF TIME, WHETHER OR NOT THE SAME WOULD BIND
THE ACCUSED-APPELLANTS

ARGUMENTS/DISCUSSIONS

Section 2, Rule 40 provides that an appeal may be taken

within fifteen (15) days after notice to the appellant of the judgment
or final order appealed from. x x x x x.

The period of appeal shall be interrupted by a timely motion

for new trial or reconsideration. x x x x x.

In the case of PADUA, ET AL., vs. CA1, the Supreme Court

held

In the case of Neypes v. Court of Appeals, the

Court had occasion to settle the uncertainly as
regards the reckoning point of the 15-day period to
appeal. We held that

. . . [A] party litigant may file his notice of appeal

within 15 days from receipt of the Regional Trial
Courts decision or file it within 15 days from

1
GR No. 152150, December 10, 2008

2
 receipt of the order (the final order) denying his
motion for new trial or motion for reconsideration. . .

In order to standardize the appeal periods in the

Rules and to afford litigants a fair opportunity to
appeal their cases, the Court deemed it practical to
allow a fresh period of 15 days within which to file
the notice of appeal in the RTC. Said period is to be
counted from receipt of the order dismissing the
motion for new trial or motion for reconsideration.

The question of whether or not the foregoing rule is applicable

to the case where it was originally filed before the Municipal Trial
Court. The Supreme Court answered this question in the case of
SUMAWAY, ET AL., vs. URBAN BANK, INC.2, which it held

Henceforth, this fresh period rule shall

apply to Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial
Court; Rule 42 on the petitioners for review from
the Regional Trial Courts to the Court of
Appeals; Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme
Court. The new rule aims to regiment or make
the appeal period uniform, to be counted from
receipt of the order denying the motion for new
trial, motion for reconsideration (whether full or
partial) or any final order or resolution.

2
GR No. 142534, June 27, 2006

3
 In this appealed case, the judgment of conviction was
promulgated on June 26, 2007. Applying the rule that the day of
the act or event from which the designated period of time begins to
run is to be excluded and the date of performance included,
accused-appellants still has up to July 11, 2007. But since
accused-appellants timely filed on June 29, 2007 their Motion for
Reconsideration to the judgment of conviction, the running of the
15-day period was interrupted. On November 22, 2007, the Motion
for Reconsideration to the judgment of conviction was denied. The
order of denial was received by then counsel of record Atty.
Bernardito Florido on December 6, 2007. On the part of the
accused-appellants, they received their copy on December 14,
2007. If we will based it on the date when Atty. Florido received his
copy, accused-appellants still have up to December 21, 2007
within which to file a Notice of Appeal or apply for probation. Now,
if we will based on the date when the accused-appellants received
their copy of the order, then they still have up to December 29,
2007. This computation is again based on the fresh period rule.
But since on December 12, 2007, accused-appellants through their
counsel Atty. Ireneo L. Gako, Jr. filed an urgent motion to recall
order denying their motion for reconsideration, the 15-day period
was once again interrupted. The urgent motion to recall was denied
on February 6, 2008 which the accused-appellants received the
order of the same on March 4, 2008. Again, applying the fresh
period rule, accused-appellants still has up to March 19, 2008
within which to file a notice of appeal or apply for probation.
Exactly on March 14, 2008, accused-appellant filed Notice of
Appeal.

Clearly, the MTCC as well as the RTC-27 committed mistakes

when both courts ruled that accused-appellants right to appeal
their case or to apply for probation has already lapsed. As can be

4
seen on the dates mentioned above, accused-appellants notice of
appeal was filed five (5) days ahead from the deadline.

Assuming that the Notice of Appeal was indeed filed out of

time, the same would not bind the accused-appellants since there
was gross or palpable negligence committed by their previous
lawyer.

Nothing is more settled than the rule that the mistake of a

counsel binds the client. It is only in case of gross or palpable
negligence of counsel when the courts must step in and accord
relief to a client who suffered thereby 3.

Accused-Appellants former counsel, Atty. Ireneo Gako is a

newly retired Regional Trial Court Judge in Cebu City. In fact,
before he became a judge, he was the former City Prosecutor of
Lapulapu City. Not only that, he was once also a professor of law in
one of the leading universities in Cebu. With this background, he is
expected to be more familiar of the law, substantially and
procedurally. The 15-day prescribed period to appeal is a basic
procedure. Even law students know this rule. Hence, the failure of
Atty. Gako to observe this very basic rule is a clear example of gross
or palpable negligence committed by a lawyer. Thus, the Honorable
Appellate Court must step in and accord what is available relief to
the accused-appellants.

As member of the Philippine Bar he owes complete fidelity to

the cause of his client. He should give adequate attention, care and
time to his cases. This is the reason why a practicing lawyer should
accept only so many cases he can afford to handle. And once he
agrees to handle a case, he should undertake the task with

3
Legarda vs. CA, GR No. 94457, March 18, 1991

5
dedication and care. If he should do any less, then he is not true to
his oath as a lawyer4.

In Escudero vs. Judge Dulay5, the Supreme Court, in holding

that the counsel's blunder in procedure is an exception to the rule
that the client is bound by the mistakes of counsel, made the
following disquisition:

Petitioners contend, through their new counsel,

that the judgments rendered against them by the
respondent court are null and void, because they
were therein deprived of their day in court and
divested of their property without due process of law,
through the gross ignorance, mistake and negligence
of their previous counsel. They acknowledge that,
while as a rule, clients are bound by the mistake of
their counsel, the rule should not be applied
automatically to their case, as their trial counsel's
blunder in procedure and gross ignorance of existing
jurisprudence changed their cause of action and
violated their substantial rights.

We are impressed with petitioner's contentions.

Ordinarily, a special civil action under Rule 65

of the Rules of Court will not be a substitute or cure
for failure to file a timely petition for review on
certiorari (appeal) under Rule 45 of the Rules. Where,
however, the application of the rule will result in a
manifest failure or miscarriage of justice, the rule
may be relaxed.
4
ibid
5
158 SCRA 69 (1988)

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 xxx xxx xxx

While this Court is cognizant of the rule that,

generally, a client will suffer the consequences of the
negligence, mistake or lack of competence of his
counsel, in the interest of justice and equity,
exceptions may be made to such rule, in accordance
with the facts and circumstances of each case.
Adherence to the general rule would, in the instant
case, result in the outright deprivation of their
property through a technicality.

In the case of Apex Mining Inc. vs. CA6, the Supreme Court
said, thus

A client may reasonably expect that his

counsel will make good his representations and has
the right to expect that his lawyer will protect his
interests during the trial of his case. For the general
employment of an attorney to prosecute or defend a
case or proceeding ordinarily vests in a plaintiffs
attorney the implied authority to take all steps or do
all acts necessary or incidental to the regular and
orderly prosecution and management of the suit, and
in a defendants attorney, the power to take such
steps as he deems necessary to defend the suit and
protect the interests of the defendant."

6
GR No. 133750, November 29, 1999

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 In this present case, accused-appellants former counsel, Atty.
Gako, failed to make good of his representations. Accused-
appellants expected him that he will do what was good for them at
that time.

In the case of Sibal vs. People7, the Supreme Court held, thus

xxxxx

In all criminal prosecutions, the accused shall

have the right to appeal in the manner prescribed by
law. The importance and real purpose of the remedy
of appeal has been emphasized in Castro v. Court of
Appeals27 where we ruled that an appeal is an
essential part of our judicial system and trial courts
are advised to proceed with caution so as not to
deprive a party of the right to appeal and instructed
that every party-litigant should be afforded the
amplest opportunity for the proper and just
disposition of his cause, freed from the constraints of
technicalities. While this right is statutory, once
it is granted by law, however, its suppression
would be a violation of due process, a right
guaranteed by the Constitution. Thus, the
importance of finding out whether petitioner's loss of
the right to appeal was due to the PAO lawyer's
negligence and not at all attributed to petitioner.

xxxxx

7
GR No. 161070, April 14, 2008

8
 In the recent case of PCI Leasing and Finance, Inc. vs.
Milan, et al.8, the Supreme Court citing the case of Sibal vs. People
held, thus

xxxxx

However, this court has relaxed this rule in

order to serve substantial justice considering (a)
matters of life, liberty, honor or property, (b) the
existence of special or compelling circumstances, (c)
the merits of the case, (d) a cause not entirely
attributable to the fault or negligence of the party
favoured by the suspension of the rules, (e) a lack of
any showing that the review sought is merely
frivolous and dilatory, and (f) the other party will not
be unjustly prejudiced thereby.

Invariably, 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 reflects 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 had already
declared to be final.

xxxxx

8
GR No. 151215, April 5, 2010

9
 In the case of Sarraga, et al., vs. Banco Filipino Savings
and Morgage Bank9, the Supreme Court held, thus -

xxxxx

The fundamental purpose of procedural rules is

to afford each litigant every opportunity to present
evidence in their behalf in order that substantial
justice is achieved. Court litigations are primarily for
the search of truth, and a liberal interpretation of the
rules by which both parties are given the fullest
opportunity to adduce proofs is the best way to ferret
out such truth. The dispensation of justice and
vindication of legitimate grievances should not be
barred by technicalities.

Hence, in cases where a party was denied this

right, we have relaxed the stringent application of
procedural rules in order to allow a party the chance
to be heard. This policy applies with equal force in
case of appeals. It has been consistently held that
the dismissal of appeal on purely technical grounds
is frowned upon.

"x x x, dismissal of appeals purely on technical

grounds is frowned upon and the rules of procedure
ought not to be applied in a very rigid, technical
sense, for they are adopted to help secure, not
override, substantial justice, and thereby defeat their
very aims. Verily, this Court, in the exercise of its
equity jurisdiction, may even stay the dismissal of

9
GR No. 143783, December 9, 2002

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 appeals grounded merely on technicalities, especially
in this case where petitioners appeal appears prima
facie worthy of the CAs full consideration on the
merits."

xxxxx

In the case of Aguilar vs. Court of Appeals10, the Supreme

Court held, thus -

xxxxx

x x x Losing liberty by default of an insensitive

lawyer should be frowned upon despite the fiction
that a client is bound by the mistakes of his lawyer.
The established jurisprudence holds:
xxxx

The function of the rule that negligence or

mistake of counsel in procedure is imputed to and
binding upon the client, as any other procedural rule,
is to serve as an instrument to advance the ends of
justice. When in the circumstances of each case the
rule desert its proper office as an aid to justice and
becomes its great hindrance and chief enemy, its
rigors must be relaxed to admit exceptions thereto
and to prevent a manifest miscarriage of justice.

xxxx

10
320 Phil 456 (1995)

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 The court has the power to except a particular
case from the operation of the rule whenever the
purposes of justice require it.

xxxx

If the incompetence, ignorance or inexperience

of counsel is so great and the error committed as a
result thereof is so serious that the client, who
otherwise has a good cause, is prejudiced and
denied his day in court, the litigation may be
reopened to give the client another chance to present
his case. In a criminal proceeding, where certain
evidence was not presented because of counsel's
error or incompetence, the defendant in order to
secure a new trial must satisfy the court that he has
a good defense and that the acquittal would in all
probability have followed the introduction of the
omitted evidence. What should guide judicial action
is that a party be given the fullest opportunity to
establish the merits of his action or defense rather
than for him to lose life, liberty, honor or property on
mere technicalities.

xxxxx

The foregoing jurisprudence falls squarely in this instant

petition of the accused-appellants. Clearly, accused-appellants
former counsel was guilty of gross negligence. Hence, the palpable
mistake committed by said former counsel should not in any way
bind the accused-appellants.

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 PRAYER

WHEREFORE, it is respectfully prayed of this Honorable

Appellate Court to reverse the order of the lower court denying the
Notice of Appeal of the accused-appellants by allowing the accused-
appellants to appeal their case to the Regional Trial Court, or in the
alternative, to allow the accused-appellants to apply for probation.

Other just and equitable remedies are likewise prayed for.

June 17, 2010, Mandaue City, (for Cebu City), Philippines.

Flora Mae P. Angtud

Collaborating Counsel for the Accused-Appellants
Keppel Building, Ayala Business Park
Cebu City
Roll No. 12345
IBP No. 23456, Cebu Chapter, April 15, 2010
PTR No. 3456789, Mandaue City, January 4, 2010
MCLE Compliance No. II 0005972
MCLE Compliance No. III 0000129

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Copy Furnished:

The Honorable City Prosecutor (personally served)

Lapulapu City Prosecutors Office
Lapulapu City
Received By _________________ on _____________

The Clerk of Court (personally served)

RTC Branch 27
Lapulapu City
Received By __________________ on ______________

The Solicitor General

Office of the Solicitor General
#134 Amorsolo Street
Legaspi Village, Makati City
1229
Registry Receipt No. _____________, dated ____________

Atty. Gongie
Counsel for Private Respondent
RCBC Building
Makati City.,
Makati
Registry Receipt No. ____________, dated _____________

EXPLANATION

Copy of this Memorandum is personally served to the

Lapulapu City Prosecutors Office and RTC-27, Lapulapu City.

Likewise, a copy of the same was sent through registered mail

to the Solicitor General and due to distance and impracticability to
effect personal service.

Flora Mae P. Angtud

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Republic of the Philippines)
City of Mandaue ...........)SS.

AFFIDAVIT OF SERVICE/MAILING

I, Juan Tamad of legal age, Filipino, single, and a resident of Mandaue

City, Cebu, Philippines, after being sworn in accordance with law, do hereby
depose and state: THAT

1. I am at present the clerk/messenger of the ANGTUDS LAW OFFICE

located at Keppel Building, Ayala Business Park, Cebu City. On June
15, 2010, I served through personal service and/or registered mail
copies of this Memorandum to:

The Honorable City Prosecutor (personally served)

Lapulapu City Prosecutors Office, Lapulapu City

The Clerk of Court (personally served)

RTC Branch 27
Mandaue City, Lapulapu City

The Solicitor General

Office of the Solicitor General
#134 Amorsolo Street
Legaspi Village, Makati City, 1229

Atty. Gongie
Counsel for Private Respondent
RCBC Building, Makati City
Makati City

2. Proof of service and registry receipt of the foregoing mailing can be

clearly seen on page 14 of the pleading.

IN WITNESS WHEREOF, I have hereunto set my hand this _____ day

of June 2010, at Mandaue City, Philippines.

Juan Tamad
Affiant
SSS ID No. 0623473095

SUBSCRIBED AND SWORN to before me this ____ day of June 2010,

at Mandaue City, Philippines. Affiant exhibited to his SSS ID No.
0623473095.

Doc. No. __
Page No. __
Book No. __
Series of 2010

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