October 20, 2015 After trial, the RTC promulgated its Decision3 

which
convicted petitioner of the crime charged and sentenced
G.R. No. 206513 him to suffer an indeterminate penalty of imprisonment
ranging from ten (10) years of prision mayor, as
MUSTAPHA DIMAKUTA MARUHOM, Petitioner minimum, to seventeen (17) years, four (4) months and
vs. one (1) day of reclusion temporal, as maximum, with the
PEOPLE OF THE PHIILPPINES, Respondent accessory penalty of perpetual absolute disqualification.
In addition, he was directed to pay a fine of ₱20,000.00,
DECISION civil indemnity of ₱25,000.00, and moral damages of
₱25,000.00.4
PERALTA, J.:
Feeling aggrieved, petitioner elevated the case to the
In the present controversy, petitioner Mustapha Dimakuta
Court of Appeals (CA) arguing, among other things, that
y Maruhom alias Boyet was indicted for Violation of
even assuming he committed the acts imputed, still there
Section 5 Paragraph (b), Article III of Republic Act (R.A.)
is no evidence showing that the same were done without
No. 7610 or the Special Protection of Children Against
the victim’s consent or through force, duress, intimidation
Abuse, Exploitation and Discriminatory Act. The
or violence upon her. Surprisingly, when asked to
Information reads:
comment on the appeal, the Office of the Solicitor
General (OSG), relying heavily on People v.
That on or about the 24th day of September 2005, in the
Abello,5 opined that petitioner should have been
City of Las Piñas, Philippines, and within the jurisdiction
convicted only of Acts of Lasciviousness under Article
of this Honorable Court, the above-named accused, with
336 of the Revised Penal Code (RPC) in view of the
lewd designs, did then and there willfully, unlawfully and
prosecution’s failure to establish that the lascivious acts
feloniously commit a lascivious conduct upon the person
were attended by force or coercion because the victim
of one AAA, who was then a sixteen (16) year old minor,
was asleep at the time the alleged acts were committed.
by then and there embracing her, touching her breast
and private part against her will and without her consent
On June 28, 2012, the CA rendered a Decision6 adopting
and the act complained of is prejudicial to the physical
the recommendation of the OSG. In modifying the RTC
and psychological development of the complainant.2
Decision, petitioner was found guilty of Acts of
Lasciviousness under Article 336 of the RPC and was Petitioner filed a motion for reconsideration,12 but it was
sentenced to suffer the indeterminate penalty of six (6) denied in a Resolution13 dated March 13, 2013; hence,
months of arresto mayor, as minimum, to four (4) years this petition.
and two (2) months of prision correccional, as maximum.
Likewise, he was ordered to pay ₱20,000.00 as civil The petition should be denied.
indemnity and ₱30,000.00 as moral damages.
At the outset, tracing the evolution of the present
Petitioner received a copy of CA Decision on July 6, Probation Law is warranted in order to better understand
2012.7 Instead of further appealing the case, he filed on and apply the wisdom of its framers to cases invoking its
July 23, 2012 before the CA a manifestation with motion application.
to allow him to apply for probation upon remand of the
case to the RTC.8 Petitioner invoked the case In this jurisdiction, the concept of probation was
of Colinares v. People9 which allowed petitioner therein to introduced during the American colonial period.14 For
apply for probation after his sentence was later reduced juvenile delinquents, Act No. 320315 was enacted on
on appeal by the Supreme Court. December 3, 1924. It was later amended by Act Nos.
3309,16 3559,17 and 3725.18 As to offenders who are
The CA issued a Resolution on September 3, 2012 eighteen years old and above, Act No. 422119 was
denying petitioner’s manifestation with motion.10 It was passed by the legislature and took effect on August 7,
ruled that Colinares is inapplicable since petitioner 1935. Said Act allowed defendants who are convicted
therein raised as sole issue the correctness of the and sentenced by a Court of First Instance or by the
penalty imposed and claimed that the evidence Supreme Court on appeal, except those who are
presented warranted only a conviction for the lesser convicted of offenses enumerated in Section 8
offense. Instead, the appellate court viewed as thereof,20 to be placed on probation upon application after
appropriate the case of Lagrosa v. People,11 wherein the the sentence has become final and before its service has
application for probation was denied because petitioners begun.21 However, We declared in People v. Vera22 that
therein put in issue on appeal the merits of their Act No. 4221 is unconstitutional and void as it constitutes
conviction and did not simply assail the propriety of the an improper and unlawful delegation of legislative
penalties imposed. authority to the provincial boards.
During the martial law period, then President Ferdinand
E. Marcos issued Presidential Decree (P.D.) No. 96823 on
July 24, 1976. Originally, P.D. No. 968 allowed the filing On October 5, 1985, Section 4 was subsequently
of an application for probation at any time after the amended by P.D. No. 1990.27 Henceforth, the policy has
defendant had been convicted and sentenced. Section 4 been to allow convicted and sentenced defendant to
of which provides: apply for probation within the 15-day period for perfecting
an appeal. As modified, Section 4 of the Probation Law
SEC. 4. Grant of Probation. – Subject to the provisions of now reads:
this Decree, the court may, after it shall have convicted
and sentenced a defendant and upon application at SEC. 4. Grant of Probation. – Subject to the provisions of
any time of said defendant, suspend the execution of this Decree, the trial court may, after it shall have
said sentence and place the defendant on probation for convicted and sentenced a defendant and upon
such period and upon such terms and conditions as it application by said defendant within the period for
may deem best. perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such
Probation may be granted whether the sentence imposes period and upon such terms and conditions as it may
a term of imprisonment or a fine only. An application for deem best; Provided, that no application for probation
probation shall be filed with the trial court, with notice to shall be entertained or granted if the defendant has
the appellate court if an appeal has been taken from the perfected the appeal from the judgment of conviction.
sentence of conviction. The filing of the application shall
be deemed a waiver of the right to appeal, or the Probation may be granted whether the sentence imposes
automatic withdrawal of a pending appeal. An order a term of imprisonment or a fine only. An application for
granting or denying probation shall not be appealable.24 probation shall be filed with the trial court. The filing of
the application shall be deemed a waiver of the right to
Later, the filing of an application for probation pending appeal.
appeal was still allowed when Section 4 of P.D. No. 968
was amended by P.D. No. 125725 on December 1, 1977 An order granting or denying probation shall not be
by providing that such application may be made after the appealable.28
defendant had been convicted and sentenced but before
he begins to serve his sentence.
The reason for the disallowance may be inferred from the system[.]
preamble of P.D. No. 1990, thus:
Observing the developments in our Probation Law, the
WHEREAS, it has been the sad experience that persons Court settled in Llamado v. Court of Appeals:29
who are convicted of offenses and who may be entitled to
probation still appeal the judgment of conviction even up Examination of Section 4, after its amendment by P.D.
to the Supreme Court, only to pursue their application for No. 1257, reveals that it had established a prolonged but
probation when their appeal is eventually dismissed; definite period during which an application for probation
may be granted by the trial court. That period was: "After
WHEREAS, the process of criminal investigation, [the trial court] shall have convicted and sentenced a
prosecution, conviction and appeal entails too much time defendant but before he begins to serve his sentence."
and effort, not to mention the huge expenses of litigation, Clearly, the cut-off time – commencement of service of
on the part of the State; sentence – takes place NOT ONLY AFTER an appeal
has been taken from the sentence of conviction, but
WHEREAS, the time, effort and expenses of the even after judgment has been rendered by the
Government in investigating and prosecuting accused appellate court and after judgment has become final.
persons from the lower courts up to the Supreme Court, Indeed, in this last situation, Section 4, as amended by
are oftentimes rendered nugatory when, after the P.D. No. 1257 provides that "the application [for
appellate Court finally affirms the judgment of conviction, probation] shall be acted upon by the trial court on the
the defendant applies for and is granted probation; basis of the judgment of the appellate court"; for the
appellate court might have increased or reduced the
WHEREAS, probation was not intended as an escape original penalty imposed by the trial court. x x x
hatch and should not be used to obstruct and delay the
administration of justice, but should be availed of at the xxxx
first opportunity by offenders who are willing to be
reformed and rehabilitated; In sharp contrast with Section 4 as amended by PD No.
1257, in its present form, Section 4 establishes a much
WHEREAS, it becomes imperative to remedy the narrower period during which an application for probation
problems abovementioned confronting our probation may be filed with the trial court: "after [the trial court] shall
have convicted and sentenced a defendant and – within
the period for perfecting an appeal –." As if to provide rather to some vague and undefined time, i.e., "the
emphasis, a new proviso was appended to the first earliest opportunity" to withdraw the defendant's appeal.
paragraph of Section 4 that expressly prohibits the grant
of an application for probation "if the defendant has The whereas clauses invoked by petitioner did not, of
perfected an appeal from the judgment of conviction." It is course, refer to the fifteen-day period. There was
worthy of note too that Section 4 in its present form absolutely no reason why they should have so referred to
has dropped the phrase which said that the filing of an that period for the operative words of Section 4 already
application for probation means "the do refer, in our view, to such fifteen-day
automatic withdrawal of a pending appeal." The deletion period. Whereas clauses do not form part of a statute,
is quite logical since an application for probation can no strictly speaking; they are not part of the operative
longer be filed once an appeal is perfected; there can, language of the statute. Nonetheless, whereas clauses
therefore, be no pending appeal that would have to be may be helpful to the extent they articulate the general
withdrawn. purpose or reason underlying a new enactment, in the
present case, an enactment which drastically but clearly
xxxx changed the substantive content of Section 4 existing
before the promulgation of P.D. No.
We find ourselves unable to accept the eloquently stated 1990. Whereas clauses, however, cannot control
arguments of petitioner's counsel and the dissenting the specific terms of the statute; in the instant case,
opinion. We are unable to persuade ourselves that the whereas clauses of P.D. No. 1990 do not purport to
Section 4 as it now stands, in authorizing the trial court to control or modify the terms of Section 4 as amended.
grant probation "upon application by [the] Upon the other hand, the term "period for perfecting an
defendant within the period for perfecting an appeal" appeal" used in Section 4 may be seen to furnish
and in reiterating in the proviso that "no application for specification for the loose language "first opportunity"
probation shall be entertained or granted if the defendant employed in the fourth whereas clause. "Perfection of an
has perfected an appeal from the judgment of appeal" is, of course, a term of art but it is a term of art
conviction." did not really mean to refer to the fifteen-day widely understood by lawyers and judges and Section 4
period established, as indicated above, by B.P. Blg. 129, of the Probation Law addresses itself essentially to
the Interim Rules and Guidelines Implementing B.P. Blg. judges and lawyers. "Perfecting an appeal" has no
129 and the 1985 Rules on Criminal Procedure, but sensible meaning apart from the meaning given to those
words in our procedural law and so the law-making
agency could only have intended to refer the law-making
agency could only have intended to refer to the meaning If the application for probation is filed beyond the 15-day
of those words in the context of procedural law.30 period, then the judgment becomes final and executory
and the lower court can no longer act on the application
In Sable v. People, et al.,31 this Court stated that Section for probation.
4 of the Probation Law was amended precisely to put a
stop to the practice of appealing from judgments of On the other hand, if a notice of appeal is perfected, the
conviction even if the sentence is probationable, for the trial court that rendered the judgment of conviction is
purpose of securing an acquittal and applying for the divested of any jurisdiction to act on the case, except the
probation only if the accused fails in his bid.32 The execution of the judgment when it has become final and
Probation Law "expressly requires that an accused must executory.
not have appealed his conviction before he can avail
himself of probation. This outlaws the element of In view of the latest amendment to Section 4 of the
speculation on the part of the accused – to wager on the Probation Law that "no application for probation shall be
result of his appeal – that when his conviction is finally entertained or granted if the defendant has perfected an
affirmed on appeal, the moment of truth well nigh at hand appeal from the judgment of conviction," prevailing
and the service of his sentence inevitable, he now jurisprudence35 treats appeal and probation as mutually
applies for probation as an ‘escape hatch,’ thus rendering exclusive remedies because the law is unmistakable
nugatory the appellate court's affirmance of his about it.36 Indeed, the law is very clear and a contrary
conviction."33 interpretation would counter its envisioned mandate.
Courts have no authority to invoke "liberal interpretation"
Verily, Section 4 of the Probation Law provides that the or "the spirit of the law" where the words of the statute
application for probation must be filed with the trial court themselves, and as illuminated by the history of that
within the 15-day period for perfecting an appeal. The statute, leave no room for doubt or interpretation.37 To be
need to file it within such period is intended to encourage sure, the remedy of convicted felons who want to avail of
offenders, who are willing to be reformed and the benefits of probation even after the remedy of an
rehabilitated, to avail themselves of probation at the first appeal is to go to the Congress and ask for the
opportunity.  amendment of the law. To surmise a converse construal
of the provision would be dangerously encroaching on
the power of the legislature to enact laws and is is a special privilege granted by the State to a penitent
tantamount to judicial legislation. qualified offender,39 who does not possess the
disqualifications under Section 9 of P.D. No. 968, as
With due respect, however, to the ponente and the amended.40 Likewise, the Probation Law is not a penal
majority opinion in Colinares,38 the application of the law for it to be liberally construed to favor the accused.41
Probation Law in the said case deserves a second hard
look so as to correct the mistake in the application of the In the American law paradigm, probation is considered as
law in that particular case and in similar cases which will an act of clemency and grace, not a matter of right. It is a
be filed before the courts and inevitably elevated to Us privilege granted by the State, not a right to which a
like this petition. criminal defendant is entitled.43 In City of Aberdeen v.
Regan,44 it was pronounced that:
To refresh, Colinares concluded that since the trial court
imposed a penalty beyond what is allowed by the The granting of a deferred sentence and probation,
Probation Law, albeit erroneously, the accused was following a plea or verdict of guilty, is
deprived of his choice to apply for probation and instead a rehabilitative measure and, as such, is not a matter of
was compelled to appeal the case. The reprehensible right but is a matter of grace, privilege, or clemency
practice intended to be avoided by the law was, granted to the deserving.
therefore, not present when he appealed the trial court’s
decision. Taking into account that the accused argued in As such, even in the American criminal justice model,
his appeal that the evidence presented against him probation should be granted only to the deserving or, in
warranted his conviction only for attempted, not our system, only to qualified "penitent offenders" who are
frustrated, homicide, the majority of the Court opined that willing to be reformed and rehabilitated. Corollarily, in this
the accused had purposely sought to bring down the jurisdiction, the wisdom behind the Probation Law is
impossible penalty in order to allow him to apply for outlined in its stated purposes, to wit:
probation.
(a) promote the correction and rehabilitation of an
It was obvious then, as it is now, that the accused offender by providing him with individualized treatment;
in Colinares should not have been allowed the benefit of
probation. As I have previously stated and insisted upon,
probation is not a right granted to a convicted offender; it
(b) provide an opportunity for the reformation of a to seek a review of the crime and/or penalty imposed by
penitent offender which might be less probable if he the trial court.
were to serve a prison sentence; and
If, on appeal, the appellate court finds it proper to modify
45
(c) prevent the commission of offenses. the crime and/or the penalty imposed, and the penalty
finally imposed is within the probationable period, the
As I have previously indicated in Colinares, if this Court accused should still be allowed to apply for probation.
will adopt as jurisprudential doctrine the opinion that an
accused may still be allowed to apply for probation In addition, before an appeal is filed based on the
even if he has filed a notice of appeal, it must be grounds enumerated above, the accused should first file
categorically stated that such appeal must be limited a motion for reconsideration of the decision of the trial
to the following grounds: court anchored on the above-stated grounds and
manifest his intent to apply for probation if the motion is
1. When the appeal is merely intended for the correction granted. The motion for reconsideration will give the trial
of the penalty imposed by the lower court, which when court an opportunity to review and rectify any errors in its
corrected would entitle the accused to apply for judgment, while the manifestation of the accused will
probation; and immediately show that he is agreeable to the judgment of
conviction and does not intend to appeal from it, but he
2. When the appeal is merely intended to review the only seeks a review of the crime and/or penalty imposed,
crime for which the accused was convicted and that the so that in the event that the penalty will be modified
accused should only be liable to the lesser offense which within the probationable limit, he will immediately apply
is necessarily included in the crime for which he was for probation. Without such motion for reconsideration,
originally convicted and the proper penalty imposable is the notice of appeal should be denied outright.
within the probationable period.
The notice of appeal should contain the following
In both instances, the penalty imposed by the trial court averments:
for the crime committed by the accused is more than six
years; hence, the sentence disqualifies the accused from (1) that an earlier motion for reconsideration was filed but
applying for probation. The accused should then be was denied by the trial court;
allowed to file an appeal under the afore-stated grounds
(2) that the appeal is only for reviewing the penalty conviction. In such instances, the ultimate reason of the
imposed by the lower court or the conviction should only accused for filing the appeal based on the afore-stated
be for a lesser crime necessarily included in the crime grounds is to determine whether he may avail of
charged in the information; and probation based on the review by the appellate court of
the crime and/or penalty imposed by the trial court.
(3) that the accused-appellant is not seeking acquittal of
the conviction. Allowing the afore-stated grounds for appeal would give
an accused the opportunity to apply for probation if his
To note, what Section 4 of the Probation Law prohibits is ground for appeal is found to be meritorious by the
an appeal from the judgment of conviction, which appellate court, thus, serving the purpose of the
involves a review of the merits of the case and the Probation Law to promote the reformation of a penitent
determination of whether the accused is entitled to offender outside of prison.
acquittal. However, under the recommended grounds for
appeal which were enumerated earlier, the purpose of On the other hand, probation should NOT BE GRANTED
the appeal is not to assail the judgment of conviction but to the accused in the following instances:
to question only the propriety of the sentence, particularly
the penalty imposed or the crime for which the accused 1. When the accused is convicted by the trial court of a
was convicted, as the accused intends to apply for crime where the penalty imposed is within the
probation upon correction of the penalty or conviction for probationable period or a fine, and the accused files a
the lesser offense. If the CA finds it proper to modify the notice of appeal; and
sentence, and the penalty finally imposed by the
appellate court is within the probationable period, or the 2. When the accused files a notice of appeal which puts
crime for which the accused is eventually convicted the merits of his conviction in issue, even if there is an
imposes a probationable penalty, application for alternative prayer for the correction of the penalty
probation after the case is remanded to the trial court for imposed by the trial court or for a conviction to a lesser
execution should be allowed. crime, which is necessarily included in the crime in which
he was convicted where the penalty is within the
It is believed that the recommended grounds for appeal probationable period.
do not contravene Section 4 of the Probation Law, which
expressly prohibits only an appeal from the judgment of
Both instances violate the spirit and letter of the law, as To be sure, if petitioner intended in the first instance to be
Section 4 of the Probation Law prohibits granting an entitled to apply for probation he should have admitted
application for probation if an appeal from his guilt and buttressed his appeal on a claim that the
the sentence of conviction has been perfected by the penalty imposed by the RTC was erroneous or that he is
accused. only guilty of a lesser offense necessarily included in the
crime for which he was originally convicted.
In this case, petitioner appealed the trial court’s judgment
of conviction before the CA alleging that it was error on Unfortunately for him, he already perfected his appeal
the part of the RTC to have found him guilty of violating and it is late in the day to avail the benefits of probation
Section 5(b), Article III of R.A. No. 7610. He argued that despite the imposition of the CA of a probationable
the RTC should not have given much faith and credence penalty.
to the testimony of the victim because it was tainted with
inconsistencies. Moreover, he went on to assert that As regards the CA Decision convicting petitioner of the
even assuming he committed the acts imputed on him, crime of Acts of Lasciviousness under Article 336 of the
still there was no evidence showing that the lascivious RPC, such conclusion clearly contravenes the law and
acts were committed without consent or through force, existing jurisprudence.
duress, intimidation or violence because the victim at that
time was in deep slumber. Petitioner was charged and convicted by the trial court
with violation of Section 5(b), Article III of R.A. No. 7610
It is apparent that petitioner anchored his appeal on a based on the complaint of a sixteen (16)-year-old girl for
claim of innocence and/or lack of sufficient evidence to allegedly molesting her by touching her breast and
support his conviction of the offense charged, which is vagina while she was sleeping. The provision reads:
clearly inconsistent with the tenor of the Probation
Law that only qualified penitent offender are allowed Under Section 5, Article III of R.A. No. 7610, a child is
to apply for probation. The CA, therefore, did not err in deemed subjected to other sexual abuse when he or she
applying the similar case of Lagrosa v. People46 wherein indulges in lascivious conduct under the coercion or
the protestations of petitioners therein did not simply influence of any adult. This statutory provision must be
assail the propriety of the penalties imposed but meant a distinguished from Acts of Lasciviousness under Articles
profession of guiltlessness, if not complete innocence. 336 and 339 of the RPC. As defined in Article 336 of the
RPC, Acts of Lasciviousness has the following elements:
(1) That the offender commits any act of lasciviousness Implementing Rules and Regulations (IRR) of R.A. No.
or lewdness; 7610:

(2) That it is done under any of the following [T]he intentional touching, either directly or through
circumstances: clothing, of the genitalia, anus, groin, breast, inner thigh,
or buttocks, or the introduction of any object into the
a. By using force or intimidation; or genitalia, anus or mouth, of any person, whether of the
same or opposite sex, with an intent to abuse, humiliate,
b. When the offended party is deprived or reason harass, degrade, or arouse or gratify the sexual desire of
or otherwise unconscious; or any person, bestiality, masturbation, lascivious exhibition
of the genitals or pubic area of a person.53
c. When the offended party is under 12 years of
age; and Second, petitioner clearly has moral ascendancy over the
minor victim not just because of his relative seniority but
That the offended party is another person of either sex.49 more importantly due to the presumed presence of
mutual trust and confidence between them by virtue of an
Article 339 of the RPC likewise punishes acts of
existing employment relationship, AAA being a domestic
lasciviousness committed with the consent of the
helper in petitioner’s household. Notably, a child is
offended party done by the same persons and under the
considered as sexually abused under Section 5(b) of
same circumstances mentioned in Articles 337 and 338
R.A. No. 7610 when he or she is subjected to lascivious
of the RPC,
conduct under the coercion or influence of any adult.
Intimidation need not necessarily be irresistible. It is
As correctly found by the trial court, all the elements of
sufficient that some compulsion equivalent to intimidation
sexual abuse under Section 5(b), Article III of R.A. No.
annuls or subdues the free exercise of the will of the
7610 are present in the case at bar.
offended party.54 The law does not require physical
First, petitioner’s lewd advances of touching the breasts violence on the person of the victim; moral coercion or
and vagina of his hapless victim constitute lascivious ascendancy is sufficient.55 On this point, Caballo v.
conduct as defined in Section 32, Article XIII of the People56 explicated:
Finally, the victim is 16 years of age at the time of the Regrettably, since neither the accused nor the OSG
commission of the offense. Under Section 3 (a) of R.A. questioned the CA Decision, it has attained finality and to
No. 7610, "children" refers to "persons below eighteen correct the error at this stage is already barred by the
(18) years of age or those over but unable to fully take right of the accused against double jeopardy.
care of themselves or protect themselves from abuse,
neglect, cruelty, exploitation or discrimination because of Based on the above disquisitions, the petitioner should
a physical or mental disability or condition." be denied the benefit of the Probation Law and that
the Court should adopt the recommendations above-
The decision of the trial court finding the petitioner guilty stated in situations where an accused files an appeal
of Violation of Section 5(b), Article III R.A. No. 7610 for the sole purpose of correcting the penalty imposed to
should have been upheld by the CA instead of qualify him for probation or where he files an appeal
erroneously adopting the recommendation of the OSG, specifically claiming that he should be found guilty of a
which inaccurately relied on People v. Abello.58 In said lesser offense necessarily included with the crime
case, the decisive factor for the acquittal of the accused originally filed with a prescribed penalty which is
was not the absence of coercion or intimidation on the probationable.
offended party, who was then sleeping at the time the
lascivious act was committed, but the fact that the victim SO ORDERED.
could not be considered as a "child" under R.A. No.
7610. This Court held that while the twenty-one year old
woman has polio as a physical disability that rendered
her incapable of normal function, the prosecution did not G.R. No. 182748               December 13, 2011
present any testimonial or documentary evidence - any
ARNEL COLINARES, Petitioner,
medical evaluation or finding from a qualified physician,
vs.
psychologist or psychiatrist - attesting that the physical
PEOPLE OF THE PHILIPPINES, Respondent.
condition rendered her incapable of fully taking care of
herself or of protecting herself against sexual abuse.
DECISION
Thus, it is clear that petitioner could not have been
ABAD, J.:
entitled to apply for probation in the first place.
This case is about a) the need, when invoking self- Paciano Alano (Paciano) testified that he saw the whole
defense, to prove all that it takes; b) what distinguishes incident since he happened to be smoking outside his
frustrated homicide from attempted homicide; and c) house. He sought the help of a barangay tanod and they
when an accused who appeals may still apply for brought Rufino to the hospital.
probation on remand of the case to the trial court.
Dr. Albert Belleza issued a Medico-Legal
2
Certificate  showing that Rufino suffered two lacerated
wounds on the forehead, along the hairline area. The
The Facts and the Case doctor testified that these injuries were serious and
potentially fatal but Rufino chose to go home after initial
The public prosecutor of Camarines Sur charged the treatment.
accused Arnel Colinares (Arnel) with frustrated homicide
before the Regional Trial Court (RTC) of San Jose, On July 1, 2005 the RTC rendered judgment, finding
Camarines Sur, in Criminal Case T-2213.1 Arnel guilty beyond reasonable doubt of frustrated
homicide and sentenced him to suffer imprisonment from
Complainant Rufino P. Buena (Rufino) testified that at two years and four months of prision correccional, as
around 7:00 in the evening on June 25, 2000, he and minimum, to six years and one day of prision mayor, as
Jesus Paulite (Jesus) went out to buy cigarettes at a maximum. Since the maximum probationable
nearby store. On their way, Jesus took a leak by the imprisonment under the law was only up to six years,
roadside with Rufino waiting nearby. From nowhere, Arnel did not qualify for probation.
Arnel sneaked behind and struck Rufino twice on the
head with a huge stone, about 15 ½ inches in diameter. Arnel appealed to the Court of Appeals (CA), invoking
Rufino fell unconscious as Jesus fled. self-defense and, alternatively, seeking conviction for the
lesser crime of attempted homicide with the consequent
Ananias Jallores (Ananias) testified that he was walking reduction of the penalty imposed on him. The CA entirely
home when he saw Rufino lying by the roadside. Ananias affirmed the RTC decision but deleted the award for lost
tried to help but someone struck him with something hard income in the absence of evidence to support it.3 Not
on the right temple, knocking him out. He later learned satisfied, Arnel comes to this Court on petition for review.
that Arnel had hit him.
In the course of its deliberation on the case, the Court the Court finds Arnel liable only for attempted homicide
required Arnel and the Solicitor General to submit their and entitled to the mitigating circumstance of voluntary
respective positions on whether or not, assuming Arnel surrender.
committed only the lesser crime of attempted homicide
with its imposable penalty of imprisonment of four months Three. Ordinarily, Arnel would no longer be entitled to
of arresto mayor, as minimum, to two years and four apply for probation, he having appealed from the
months of prision correccional, as maximum, he could judgment of the RTC convicting him for frustrated
still apply for probation upon remand of the case to the homicide.
trial court.
But, the Court finds Arnel guilty only of the lesser crime of
Both complied with Arnel taking the position that he attempted homicide and holds that the maximum of the
should be entitled to apply for probation in case the Court penalty imposed on him should be lowered to
metes out a new penalty on him that makes his offense imprisonment of four months of arresto mayor, as
probationable. The language and spirit of the probation minimum, to two years and four months of prision
law warrants such a stand. The Solicitor General, on the correccional, as maximum.
other hand, argues that under the Probation Law no
application for probation can be entertained once the With this new penalty, it would be but fair to allow
accused has perfected his appeal from the judgment of him the right to apply for probation upon remand of
conviction. the case to the RTC.

The Issues Presented Some in the Court disagrees. They contend that
probation is a mere privilege granted by the state only to
3. Given a finding that Arnel is entitled to qualified convicted offenders. Section 4 of the probation
conviction for a lower offense and a reduced law (PD 968) provides: "That no application for probation
probationable penalty, whether or not he may still shall be entertained or granted if the defendant has
apply for probation on remand of the case to the perfected the appeal from the judgment of
trial court. conviction."15 Since Arnel appealed his conviction for
frustrated homicide, he should be deemed permanently
The Court’s Rulings disqualified from applying for probation.
But, firstly, while it is true that probation is a mere for the trial court’s erroneous judgment with the forfeiture
privilege, the point is not that Arnel has the right to such of his right to apply for probation. Ang kabayo ang
privilege; he certainly does not have. nagkasala, ang hagupit ay sa kalabaw (the horse errs,
the carabao gets the whip). Where is justice there?
What he has is the right to apply for that privilege. The
Court finds that his maximum jail term should only be 2 The dissenting opinion also expresses apprehension that
years and 4 months. If the Court allows him to apply for allowing Arnel to apply for probation would dilute the
probation because of the lowered penalty, it is still up to ruling of this Court in Francisco v. Court of Appeals16 that
the trial judge to decide whether or not to grant him the the probation law requires that an accused must not have
privilege of probation, taking into account the full appealed his conviction before he can avail himself of
circumstances of his case. probation. But there is a huge difference between
Francisco and this case.
Secondly, it is true that under the probation law the
accused who appeals "from the judgment of conviction" In Francisco, the Metropolitan Trial Court (MeTC) of
is disqualified from availing himself of the benefits of Makati found the accused guilty of grave oral defamation
probation. But, as it happens, two judgments of and sentenced him to a prison term of one year and one
conviction have been meted out to Arnel: one, a day to one year and eight months of prision correccional,
conviction for frustrated homicide by the regional trial a clearly probationable penalty. Probation was his to ask!
court, now set aside; and, two, a conviction for attempted Still, he chose to appeal, seeking an acquittal, hence
homicide by the Supreme Court. clearly waiving his right to apply for probation. When the
acquittal did not come, he wanted probation. The Court
If the Court chooses to go by the dissenting opinion’s would not of course let him. It served him right that he
hard position, it will apply the probation law on Arnel wanted to save his cake and eat it too. He certainly could
based on the trial court’s annulled judgment against him. not have both appeal and probation.
He will not be entitled to probation because of the severe
penalty that such judgment imposed on him. More, the The Probation Law, said the Court in Francisco, requires
Supreme Court’s judgment of conviction for a lesser that an accused must not have appealed his conviction
offense and a lighter penalty will also have to bend over before he can avail himself of probation. This
to the trial court’s judgment—even if this has been found requirement "outlaws the element of speculation on the
in error. And, worse, Arnel will now also be made to pay part of the accused—to wager on the result of his appeal
—that when his conviction is finally affirmed on appeal, homicide, is an original conviction that for the first time
the moment of truth well-nigh at hand, and the service of imposes on him a probationable penalty. Had the RTC
his sentence inevitable, he now applies for probation as done him right from the start, it would have found him
an ‘escape hatch’ thus rendering nugatory the appellate guilty of the correct offense and imposed on him the right
court’s affirmance of his conviction."17 penalty of two years and four months maximum. This
would have afforded Arnel the right to apply for probation.
Here, however, Arnel did not appeal from a judgment that
would have allowed him to apply for probation. He did not The Probation Law never intended to deny an accused
have a choice between appeal and probation. He was not his right to probation through no fault of his. The
in a position to say, "By taking this appeal, I choose not underlying philosophy of probation is one of liberality
to apply for probation." The stiff penalty that the trial court towards the accused. Such philosophy is not served by a
imposed on him denied him that choice. Thus, a ruling harsh and stringent interpretation of the statutory
that would allow Arnel to now seek probation under this provisions.18 As Justice Vicente V. Mendoza said in his
Court’s greatly diminished penalty will not dilute the dissent in Francisco, the Probation Law must not be
sound ruling in Francisco. It remains that those who will regarded as a mere privilege to be given to the accused
appeal from judgments of conviction, when they have the only where it clearly appears he comes within its letter; to
option to try for probation, forfeit their right to apply for do so would be to disregard the teaching in many cases
that privilege. that the Probation Law should be applied in favor of the
accused not because it is a criminal law but to achieve its
Besides, in appealing his case, Arnel raised the issue of beneficent purpose.19
correctness of the penalty imposed on him. He claimed
that the evidence at best warranted his conviction only for One of those who dissent from this decision points out
attempted, not frustrated, homicide, which crime called that allowing Arnel to apply for probation after he
for a probationable penalty. In a way, therefore, Arnel appealed from the trial court’s judgment of conviction
sought from the beginning to bring down the penalty to would not be consistent with the provision of Section 2
the level where the law would allow him to apply for that the probation law should be interpreted to "provide
probation. an opportunity for the reformation of a penitent offender."
An accused like Arnel who appeals from a judgment
In a real sense, the Court’s finding that Arnel was guilty, convicting him, it is claimed, shows no penitence.
not of frustrated homicide, but only of attempted
This may be true if the trial court meted out to Arnel a WHEREFORE, the Court PARTIALLY GRANTS the
correct judgment of conviction. Here, however, it petition, MODIFIES the Decision dated July 31, 2007 of
convicted Arnel of the wrong crime, frustrated homicide, the Court of Appeals in CA-G.R. CR 29639, FINDS
that carried a penalty in excess of 6 years. How can the petitioner Arnel Colinares GUILTY beyond reasonable
Court expect him to feel penitent over a crime, which as doubt of attempted homicide, and SENTENCES him to
the Court now finds, he did not commit? He only suffer an indeterminate penalty from four months of
committed attempted homicide with its maximum penalty arresto mayor, as minimum, to two years and four
of 2 years and 4 months. months of prision correccional, as maximum, and to pay
Rufino P. Buena the amount of ₱20,000.00 as moral
Ironically, if the Court denies Arnel the right to apply for damages, without prejudice to petitioner applying for
probation under the reduced penalty, it would be sending probation within 15 days from notice that the record of
him straight behind bars. It would be robbing him of the the case has been remanded for execution to the
chance to instead undergo reformation as a penitent Regional Trial Court of San Jose, Camarines Sur, in
offender, defeating the very purpose of the probation law. Criminal Case T-2213.

At any rate, what is clear is that, had the RTC done what SO ORDERED.
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 G.R. No. 152044            July 3, 2003
had the RTC done right by him. The idea may not even
have crossed his mind precisely since the penalty he got DOMINGO LAGROSA and OSIAS BAGUIN, petitioners,
was not probationable. vs.
THE PEOPLE OF THE PHILIPPINES and THE
The question in this case is ultimately one of fairness. Is HONORABLE COURT OF APPEALS, respondents.
it fair to deny Arnel the right to apply for probation when
the new penalty that the Court imposes on him is, unlike YNARES-SANTIAGO, J.:
the one erroneously imposed by the trial court, subject to
probation? This is a petition for review of the decision of the Court of
Appeals in CA-G.R. No. 67308,1 which affirmed the
Resolution of the Regional Trial Court of Tagbilaran City, (1) year, eight (8) months and twenty one (21) days of
Branch 2, denying petitioners’ Application for Probation, prision correccional, as maximum.7 The decision became
and its Order denying petitioners’ Motion for final and executory on April 12, 2000.
Reconsideration.2
On August 29, 2001, petitioners filed an Application for
The undisputed facts are as follows. Probation with the trial court,8 which, as mentioned at the
outset, was denied. Petitioners’ motion for
On October 29, 1996, the Regional Trial Court of reconsideration was likewise denied by the trial court.
Tagbilaran City, Branch 2, rendered a decision in Hence, petitioners filed a petition for certiorari with the
Criminal Case No. 8243,3 finding petitioners Domingo Court of Appeals, which was docketed as CA-G.R. SP
Lagrosa and Osias Baguin guilty of violation of Section No. 67308.9 On January 11, 2002, the Court of Appeals
68 of P.D. 705, as amended (The Revised Forestry rendered the assailed decision affirming the questioned
Code), for having in their possession forest products resolutions of the trial court.
without the requisite permits. The trial court sentenced
them to suffer the indeterminate penalty of imprisonment Hence this petition, raising the following arguments:
from two (2) years, four (4) months and one (1) day of
prision correccional, as minimum, to eight (8) years of 1) That Section 4 of Presidential Decree No. 968,
prision mayor, as maximum. as amended by PD No. 1990, is very absurd and
illogical considering that petitioners were not given
Petitioners’ Motion for Reconsideration of the the opportunity to apply for probation when they
decision4 was denied by the trial court on November 21, were convicted by the Regional Trial Court of
1996.5 Bohol, Branch 2, because the penalty imposed by
said court is more than six (6) years and therefore
Petitioners appealed their conviction to the Court of non-probationable.
Appeals, where it was docketed as CA-G.R. CR No.
20632.6 On March 14, 2000, the appellate court affirmed That the first opportunity for herein petitioners to
the conviction of the petitioners, with the modification as apply for probation was when the Court of Appeals
to the penalty imposed, which was reduced to an modified the sentence imposed by the Regional
indeterminate penalty ranging from six (6) months and Trial Court of Bohol, Branch 2, from two (2) years,
one (1) day of prision correccional, as minimum, to one four (4) months and one (1) day of prision
 correccional, as minimum, to eight (8) years of it shall have convicted and sentenced a defendant,
prision mayor, as maximum, to six (6) months and and upon application by said defendant within the
one (1) day to one (1) year, eight (8) months and period for perfecting an appeal, suspend the
twenty one (21) days as maximum which is clearly execution of the sentence and place the defendant
probationable. on probation for such period and upon such terms
and conditions as it may deem best; Provided,
2) That the ruling of this Honorable Supreme Court That no application for probation shall be
in the case of Pablo Francisco versus Court of entertained or granted if the defendant has
Appeals, et al., G.R. No. 108747, is not applicable perfected the appeal from the judgment of
to the instant case because in the said Francisco conviction. (underscoring ours)
case the accused therein can apply for probation
because the penalty imposed by the lower court Probation may be granted whether the sentence imposes
was already probationable but the accused a term of imprisonment or a fine only. An application for
instead appealed the decision but in the case of probation shall be filed with the trial court. The filing of
herein petitioners they cannot apply for probation the application shall be deemed a waiver of the right to
when they were convicted because the penalty appeal.
imposed by the lower court was more than six (6)
years and therefore non-probationable. An order granting or denying probation shall not be
appealable.
3) That the decision of the Court of Appeals herein
sought to be reviewed is clearly contrary to the Under Section 9 (a) of the Probation Law, offenders who
purpose of the Probation Law.10 are sentenced to serve a maximum term of imprisonment
of more than six years are disqualified from seeking
The law that is at the heart of this controversy is probation.
Presidential Decree No. 968, also known as the
Probation Law, as amended by P.D. 1990, the pertinent It should be noted that before P.D. 968 was amended by
provision of which reads: P.D. 1990, the accused was allowed to apply for
probation even after he had already filed an appeal, as
SEC. 4. Grant of Probation. – Subject to the long as he had not yet begun to serve his sentence.
provisions of this Decree, the trial court may, after
Petitioners contend that they should be allowed to apply There is no question that petitioners appealed from the
for probation even if they had already appealed the decision of the trial court. This fact alone merits the
decision of the trial court. They argue that their case denial of petitioners’ Application for Probation. Having
should be considered an exception to the general rule appealed from the judgment of the trial court and having
which excludes an accused who has appealed his applied for probation only after the Court of Appeals had
conviction from the benefits of probation. affirmed their conviction, petitioners were clearly
precluded from the benefits of probation.
In the case at bar, the trial court sentenced petitioners to
a maximum term of eight years, which was beyond the However, petitioners now ask us not to apply the letter of
coverage of the Probation Law. They only became the law, claiming that their situation should be considered
eligible for probation after the Court of Appeals modified an exception to the rule. Their petition is without merit.
the judgment of the trial court and reduced the maximum
term of the penalty imposed on them to one year, eight Petitioners repeatedly assert that their application for
months and twenty-one days. probation was made at the "first opportunity,"
undoubtedly invoking the fourth "whereas" clause of P.D.
They submit that the ruling in the case of Francisco v. 1990, which reads:
CA13 is not applicable because in that case, the accused
appealed their conviction notwithstanding the fact that the WHEREAS, probation was not intended as an
maximum term of the prison sentence imposed on them escape hatch and should not be used to obstruct
by the trial court was less than six years.14 and delay the administration of justice, but should
be availed of at the first opportunity by offenders
In its Comment, the Office of the Solicitor General who are willing to be reformed and rehabilitated; x
reiterates the express provision of P.D. 968 prohibiting x x.
the grant of probation to those who have appealed their
convictions.15 It argues that, even if the petitioners have To bolster this assertion, petitioners claim that
appealed for the purpose of reducing an incorrect what prompted them to appeal the decision of the
penalty, this fact does not serve to remove them from the trial court was the erroneous penalty imposed by
prohibition in Section 4 of P.D. 968 for the law makes no the trial court.18
such distinction.16
Petitioners are not being very candid. In their appellant’s By perfecting their appeal, petitioners ipso facto
brief filed in CA-G.R. CR No. 20632, they raised the relinquished the alternative remedy of availing of the
following assignment of errors: Probation Law, the purpose of which is simply to prevent
speculation or opportunism on the part of an accused
I who, although already eligible, does not at once apply for
probation, but did so only after failing in his appeal.19
THAT THE LOWER COURT ERRED IN FINDING
BOTH ACCUSED GUILTY OF THE OFFENSE Although it has been suggested that an appeal should
CHARGED BECAUSE THE EVIDENCE AGAINST not bar the accused from applying for probation if the
THEM LACKS MORAL CERTAINTY. appeal is solely to reduce the penalty to within the
probationable limit may be equitable,20 we are not yet
II. prepared to accept this proposition, especially given the
factual circumstances of this case. Had the petitioners’
IF EVER ACCUSED ARE GUILTY, THE LOWER appeal from the decision of the trial court raised the
COURT ERRED IN IMPOSING THE PROPER impropriety of the penalty imposed upon them as the sole
PENALTY AS PROVIDED BY LAW. issue, perhaps this Court would have been more
sympathetic to their plight. Unfortunately, their
The fact that petitioners put the merits of their conviction
misrepresentation has led to their own undoing.
in issue on appeal belies their claim that their appeal was
prompted by what was admittedly an incorrect penalty. WHEREFORE, in view of the foregoing, the petition is
Certainly, the protestations of petitioners connote a DENIED. The Decision of the Court of Appeals dated
profession of guiltlessness, if not complete innocence, January 11, 2002 in CA-G.R. No. 67308, which affirmed
and do not simply assail the propriety of the penalties the Resolution of the Regional Trial Court of Tagbilaran
imposed. For sure, petitioners never manifested that they City, Branch 2, denying petitioners’ Application for
were appealing only for the purpose of correcting a Probation, and its Order denying petitioners’ Motion for
wrong penalty – to reduce it to within probationable Reconsideration, is AFFIRMED. Costs against the
range. Hence, upon interposing an appeal, more so after petitioners.
asserting their innocence therein, petitioners should be
precluded from seeking probation. SO ORDERED.
 Branch 2, in Criminal Case Nos. 5265 and 5307. The
dispositive portion thereof reads:

WHEREFORE, Judgment is hereby rendered as follows:

1. In Criminal Case No. 5265, the Court finds and

so holds the herein accused Lilia Vicoy y
Jumagdao GUILTY beyond reasonable doubt for
G.R. No. 138203            July 3, 2002
violation of City Ordinance No. 365-B for peddling
LILIA J. VICOY, petitioner, fish outside the Agora Public Market, and
vs. accordingly sentences her to suffer the penalty of
PEOPLE OF THE PHILIPPINES, respondent. a fine of Fifty Pesos (P50.00) with subsidiary
imprisonment in case of insolvency and to pay the
YNARES-SANTIAGO, J.:
costs;

This is a petition under Rule 45 on pure question of law

2. In Criminal Case No. 5307, the Court finds and
1
assailing the February 9, 1998  and February 25,
so holds the herein accused Lilia Vicoy y
2
1998  Orders of the Regional Trial Court of Bohol,
Jumagdao GUILTY beyond reasonable doubt of
Branch 3, in SP. Civil Case No. 5881, dismissing
the crime of Resistance and Serious Disobedience
petitioner’s special civil action for certiorari.
To Agents Of A Person In Authority, and
accordingly sentences her to suffer the penalty of
The present controversy stemmed from a judgment of
three (3) months of arresto mayor and to pay a
conviction promulgated on August 24, 1995 by the
fine of two Hundred Pesos (P200.00) without
Municipal Trial Court in Cities (MTCC) of Tagbilaran,
 subsidiary imprisonment in case of insolvency and Philippines, represented by the Philippine National Police
to pay the costs. of Tagbilaran City. The parties were ordered by the court
to submit their memorandum within 10 days, after which,
SO ORDERED.3
the case was submitted for judgment on the pleadings.

On the same date, August 24, 1995, petitioner filed an

Realizing that the People should be represented by the
application for probation. On September 18, 1995,
City Prosecutor’s Office, the court issued an Order dated
however, petitioner filed a motion to withdraw her
August 2, 1996, requiring the latter to enter its
application for probation and simultaneously filed a notice
appearance. In the same order, petitioner was directed to
of appeal.
furnish the City Prosecutor’s Office with a copy of her
memorandum and of the assailed judgment, thus:
In an Omnibus Order6 dated September 22, 1995, the
MTCC of Tagbilaran granted petitioner’s withdrawal of
On February 9, 1998,9 the Regional Trial Court rendered
her application for probation but denied her notice of
the assailed Order dismissing petitioner’s special civil
appeal for having been filed out of time. Petitioner filed a
action for certiorari for failure to comply with the
motion for reconsideration of the denial of her appeal,
aforequoted August 2, 1996 Order. A motion for
however, the same was denied.
reconsideration of the said order of dismissal was denied
on February 25, 1999.10
Hence, petitioner filed a special civil action for certiorari
with the Regional Trial Court of Bohol, Branch 3,
Hence, the instant petition. The sole issue raised in this
contending that the MTCC of Tagbilaran gravely abused
petition is whether or not the petition for certiorari was
its discretion in denying her the right to appeal. Named
validly dismissed by the Regional Trial Court on the
respondents therein were the Presiding Judge of MTCC
of Tagbilaran, Branch 2, and the People of the
ground of petitioner’s failure to comply with its Order Petitioner’s counsel did not comply, prompting the court
dated August 2, 1996. to dismiss the petition for certiorari on February 9, 1998.
The fact that the City Prosecutor’s Office has not yet
Section 3, Rule 17, of the Rules of Court, provides:
entered its appearance is no justification to petitioner’s
adamant and continued insistence not to comply with a
Section 3. Dismissal due to fault of plaintiff. - If, for
lawful order of the court. Every court has the power to
no justifiable cause, the plaintiff fails to appear on
enforce and compel obedience to its orders, judgments,
the date of the presentation of his evidence in
and processes in all proceedings pending before it.11 The
chief on the complaint, or to prosecute his action
Regional Trial Court’s dismissal of petitioner’s special
for an unreasonable length of time, or to comply
civil action, therefore, was but a valid exercise of said
with these Rules or any order of the court, the
power.
complaint may be dismissed upon motion of the
defendant or upon the court’s own motion, without
Moreover, even assuming that the Regional Trial Court
prejudice to the right of the defendant to prosecute
did not order the said dismissal, petitioner’s special civil
his counterclaim in the same or in a separate
action, questioning the denial of her notice of appeal,
action. This dismissal shall have the effect of an
would still fail. Note that petitioner filed an application for
adjudication on the merits, unless otherwise
probation. Section 7, Rule 120, of the Rules on Criminal
declared by the court. (Emphasis supplied)
Procedure is explicit that a judgment in a criminal case
becomes final when the accused has applied for
In the case at bar, the trial court categorically directed
probation. This is totally in accord with Section 4 of
petitioner, in its August 2, 1996 Order, to furnish the City
Presidential Decree No. 968 (Probation Law of 1976, as
Prosecutor’s Office with a copy of her memorandum and
amended), which in part provides that the filing of an
of the assailed judgment.
application for probation is deemed a waiver of the right
to appeal.12 Thus, there was no more opportunity for and encourages an otherwise eligible convict to
petitioner to exercise her right to appeal, the judgment immediately admit his liability and save the state of time,
effort and expenses to jettison an appeal. The law
having become final by the filing of an application for
expressly requires that an accused must not have
probation. appealed his conviction before he can avail of probation.
This outlaws the element of speculation on the part of the
WHEREFORE, in view of all the foregoing, the petition accused — to wager on the result of his appeal — that
when his conviction is finally affirmed on appeal, the
is DENIED. The assailed February 9, 1998 and February
moment of truth well-nigh at hand, and the service of his
25, 1999 Orders of the Regional Trial Court of Bohol, sentence inevitable, he now applies for probation as an
Branch 3, in SP. Civil Case No. 5881 are AFFIRMED. "escape hatch" thus rendering nugatory the appellate
court's affirmance of his conviction. Consequently,
SO ORDERED. probation should be availed of at the first opportunity by
convicts who are willing to be reformed and rehabilitated,
who manifest spontaneity, contrition, and remorse.

As conceptualized, is petitioner entitled to probation

G.R. No. 108747 April 6, 1995
within the purview of P.D. 968, as amended by P.D. 1257
PABLO C. FRANCISCO, petitioner, and P.D. 1990?
vs.
Petitioner woes started when as President and General
COURT OF APPEALS AND THE HONORABLE
Manager of ASPAC Trans. Company he failed to control
MAXIMO C. CONTRERAS, respondents.
his outburst and blurted —

You employees in this office are all tanga,

BELLOSILLO, J.: son of a bitches (sic), bullshit. Puro kayo
walang utak . . . . Mga anak ng
Probation is a special privilege granted by the state to a puta . . . . Magkano ba kayo . . . God damn
penitent qualified offender. It essentially rejects appeals you all.
Thus for humiliating his employees he was accused of Accordingly, petitioner was sentenced "in each case to a
multiple grave oral defamation in five (5) separate STRAIGHT penalty of EIGHT (8) MONTHS imprisonment
Informations instituted by five (5) of his employees, each . . . . "3 After he failed to interpose an appeal therefrom,
Information charging him with gravely maligning them on the decision of the RTC became final. The case was then
four different days, i.e., from 9 to 12 April 1980. set for execution of judgment by the MeTC which, as a
consequence, issued a warrant of arrest.
On 2 January 1990, after nearly ten (10) years, the
Metropolitan Trial Court of Makati, Br. 61, found petitioner But before he could be arrested petitioner filed an
guilty of grave oral defamation in four (4) of the five (5) application for probation which the MeTC denied "in the
cases filed against him, i.e., Crim. Cases Nos. 105206, light of the ruling of the Supreme Court in Llamado v.
105207, 105209 and 105210, sentenced him to a prison Court of Appeals, G.R. No, 84850, 29 June 1989, 174
term of one (1) year and one (l) day to one (1) year and SCRA 566 . . . ."4
eight (8) months of prision correccional "in each crime
committed on each date of each case, as alleqed in the Forthwith he went to the Court of Appeals
information(s)," ordered him to indemnify each of the on certiorari which on 2 July 1992 dismissed his petition
offended parties, Victoria Gatchalian, Rowena Ruiz, on the following grounds —
Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as
exemplary damages, and P5,000.00 for attorney's fees, Initially, the Court notes that the petitioner
plus costs of suit.1 He was however acquitted in Crim. has failed to comply with the provisions of
Case No. 105208 for persistent failure of the offended Supreme Court Circular No. 28-91 of
party, Edgar Colindres, to appear and testify. September 4, 1991. Violation of the circular
is sufficient cause for dismissal of the
Not satisfied with the Decision of the MeTC, and insisting petition.
on his innocence, petitioner elevated his case to the
Regional Trial Court. Secondly, the petitioner does not allege
anywhere in the petition that he had asked
On 5 August 1991 the Regional Trial Court of Makati, Br. the respondent court to reconsider its
59, affirmed his conviction but appreciated in his favor a above order; in fact, he had failed to give
mitigating circumstance analogous to passion or the court an opportunity to correct itself if it
obfuscation. Thus — had, in fact, committed any error on the
 matter. He is, however, required to move In the present recourse, petitioner squirms out of each
for reconsideration of the questioned ground and seeks this Court's compassion in dispensing
order before filing a petition with the minor technicalities which may militate against
for certiorari (Sy It v. Tiangco, 4 SCRA his petition as he now argues before us that he has not
436). This failure is fatal to his cause. It is a yet lost his right to avail of probation notwithstanding his
ground for dismissal of his petition (Santos appeal from the MeTC to the RTC since "[t]he reason for
v. Vda. de Cerdenola, 5 SCRA his appeal was precisely to enable him to avail himself of
823; Acquiao v. Estenso, 14 SCRA 18; Del the benefits of the Probation Law because the original
Pilar Transit, Inc. v. Public Service Decision of the (Metropolitan) Trial Court was such that
Commission, 31-SCRA 372). he would not then be entitled to probation." 6 He contends
that "he appealed from the judgment of the trial court
Thirdly, it is obvious that respondent court precisely for the purpose of reducing the penalties
did not commit any capricious, arbitrary, imposed upon him by the said court to enable him to
despotic or whimsical exercise of power in qualify for probation." 7
denying the petitioner's application for
probation . . . . The central issue therefore is whether petitioner is still
qualified to avail of probation even after appealing his
Fourthly, the petition for probation was filed conviction to the RTC which affirmed the MeTC except
by the petitioner out of time . . . . with regard to the duration of the penalties imposed.

Fifthly, the Court notes that Section 4 of PD 968 allows Petitioner is no longer eligible for probation.
the trial court to grant probation after conviction, upon an
application by the defendant within the period of appeal, First. Probation is a mere privilege, not a right. 8 Its
upon terms and conditions and period appropriate to benefits cannot extend to those not expressly included.
each case, but expressly rules out probation where an Probation is not a right of an accused, but rather an act of
appeal has been taken . . . grace and clemency or immunity conferred by the state
which may be granted by the court to a seemingly
The motion for reconsideration was likewise denied. deserving defendant who thereby escapes the extreme
rigors of the penalty imposed by law for the offense of
which he stands convicted. 9 It is a special prerogative
granted by law to a person or group of persons not . . . we note at the outset that Probation
enjoyed by others or by all. Accordingly, the grant of Law is not a penal statute. We, however,
probation rests solely upon the discretion of the court understand petitioner's argument to be
which is to be exercised primarily for the benefit of really that any statutory language that
organized society, and only incidentally for the benefit of appears to favor the accused in acriminal
the accused.10 The Probation Law should not therefore case should be given.a "liberal
be permitted to divest the state or its government of any interpretation." Courts . . . have no authority
of the latter's prerogatives, rights or remedies, unless the to invoke "liberal interpretation" or "the spirit
intention of the legislature to this end is clearly of the law" where the words of the statute
expressed, and no person should benefit from the terms themselves, and·as illuminated by the
of the law who is not clearly within them. history of that statute, leave no room for
doubt or interpretation. We do not believe
Neither Sec. 4 of the Probation Law, as amended, which that "the spirit of·the law" may legitimately
clearly mandates that "no application for probation shall be invoked to set at naught words which
be entertained or granted if the defendant has perfected have a clear and definite meaning imparted
the appeal from the judgment of conviction," nor Llamado to them by our procedural law. The "true
v. Court of Appeals 11 which interprets the quoted legislative intent" must obviously be given
provision, offers any ambiguity or qualification. effect by judges and all others who are
charged with the application and
As such, the application of the law should not be implementation of a statute. It is absolutely
subjected to any to suit the case of petitioner. While the essential to bear in mind, however, that the
proposition that an appeal should not bar the accused spirit of the law and the intent that is to be
from applying for probation if the appeal is solely to given effect are derived from the words
reduce the penalty to within the probationable limit may actually used by the law-maker, and not
be equitable, we are not yet prepared to accept this from some external, mystical or
interpretation under existing law and jurisprudence. metajuridical source independent of and
Accordingly, we quote Mr. Justice Feliciano speaking for transcending the words of the legislature.
the Court en banc in Llamado v. Court of Appeals—
The Court is not here to be understood as The point in this warning may be expected
giving a "strict interpretation" rather than a to become sharper as our people's grasp of
"liberal" one to Section 4 of the Probation English is steadily attenuated. 12
Law of 1976 as amended by P.D. No. 1990.
"Strict" and "liberal" are adjectives which Therefore, that an appeal should not bar the accused
too frequently impede a disciplined and from applying for probation if the appeal is taken solely to
principled search for the meaning which the reduce the penalty is simply contrary to the clear and
law-making authority projected when it express mandate of Sec, 4 of the Probation Law, as
promulgated the language which we must amended, which opens with a negative clause, "no
apply. That meaning is clearly visible in the application for probation shall be entertained or granted if
text of Section 4, as plain and unmistakable the defendant has perfected the appeal from the
as the nose on a man's face. The Courtis judgment of conviction." In Bersabal v. Salvador, 13 we
simply·reading Section 4 as it is in fact said —
written. There is no need for the involved
process of construction that petitioner By its very language, the Rule is
invites us to engage in, a process made mandatory. Under the rule of statutory
necessary only because petitioner rejects construction. negative words and phrases
the conclusion or meaning which shines are to be regarded as mandatory while
through the words of the statute. The first those in the affirmative are merely directory.
duty of the judge is to take and apply a . . . the use of the term "shall" further
statute as he finds it, not as he would like·it emphasizes its mandatory character and
to be. Otherwise, as this Court in Yangco v. means that it is imperative, operating to
Court of First Instance warned, confusion impose a duty which may be enforced.
and uncertainty will surely follow, making,
we might add, stability and continuity in the And where the law does not distinguish the courts should
law much more difficult to achieve: not distinguish; where the law does not make exception
the court should not except.
.
Second. At the outset, the penalties imposed by the
MeTC were already probationable. Hence, there was no
need to appeal if only to reduce the penalties to within serve the prison term for "each crime committed on each
the probationable period. Multiple prison terms imposed date of each case, as alleged in the information(s)," and
against an accused found guilty of several offenses in in each of the four (4) informations, he was charged with
one decision are not, and should not be, added up. And, having defamed the four (4) private complainants on four
the sum of the multiple prison terms imposed against an (4) different, separate days, he was still eligible for
applicant should not be determinative of his eligibility for, probation, as each prison term imposed on petitioner was
nay his disqualification from, probation. The multiple probationable.
prison terms are distinct from each other, and if none of
the terms exceeds the limit set out in the Probation Fixing the cut-off point at a maximum term of six (6)
Law,i.e., not more than six (6) years, then he is entitled to years imprisonment for probation is based on the
probation, unless he is otherwise specifically disqualified. assumption that those sentenced to higher penalties
pose too great a risk to society, not just because of their
The number of offenses is immaterial as long as all the demonstrated capability for serious wrong doing but
penalties imposed, taken separately, are within the because of the gravity and serious consequences of the
probationable period. offense they might further commit. 14 The Probation Law,
as amended, disqualifies only those who have been
For, Sec. 9, par. (a), P.D. 968, as amended, uses the convicted of grave felonies as defined in Art. 9 in relation
word maximum not total when it says that "[t]he benefits to Art. 25 of The Revised Penal Code, 15 and not
of this Decree shall not be extended to those . . . . necessarily those who have been convicted of multiple
sentenced to serve a maximum term of imprisonment of offenses in a single proceeding who are deemed to be
more than six years." less perverse.

Evidently, the law does not intend to sum up the Hence, the basis of the disqualification is principally the
penalties imposed but to take each penalty separately gravity of the offense committed and the concomitant
and distinctly with the others. degree of penalty imposed. Those sentenced to a
maximum term not exceeding six (6) years are not
Consequently, even if petitioner was supposed to have generally considered callous, hard core criminals, and
served his prison term of one (1) year and one (1) day to thus may avail of probation.
one (1) year and eight (8) months of prision
correccional sixteen (16) times as he was sentenced to
To demonstrate the point, let us take for instance one To illustrate: 8 months multiplied by 16 cases = 128
who is convicted in a single decision of, say, thirteen (13) months; 128 months divided by 12 months (in a year) =
counts of grave oral defamation (for having defamed 10 years and 8 months, hence, following his argument,
thirteen [13] individuals in one outburst) and sentenced to petitioner cannot still be eligible for probation as the total
a total prison term of thirteen (13) years, and another of his penalties exceeds six (6) years.
who has been found guilty of mutilation and sentenced to
six (6) years and one (l) day of prision mayor  as The assertion that the Decision of the RTC should be
minimum up to twelve (l2) years and one (1) day multiplied only four (4) times since there are only four (4)
of reclusion temporal  as maximum. Obviously, the latter Informations thereby allowing petitioner to qualify for
offender is more perverse and is disqualified from probation, instead of sixteen (16) times, is quite difficult to
availing of probation. understand. The penalties imposed by the MeTC cannot
be any clearer — "one (1) year and one (1) day to one (1)
Petitioner thus proceeds on an erroneous assumption year and eight (8) months of prision correccional, in each
that under the MeTC Decision he could not have availed crime committed on each date of each case, as alleged
of the benefits of probation. Since he could have, in the information(s). "Hence, petitioner should suffer the
although he did not, his appeal now precludes him from imposed penalties sixteen (16) times. On the other hand,
applying for probation. the RTC affirmed, the judgment of conviction and merely
reduced the duration of each penalty imposed by the
And, even if we go along with the premise of petitioner, MeTC "in each case to a STRAIGHT penalty of EIGHT
however erroneous it may be, that the penalties imposed (8) MONTHS imprisonment" on account of a mitigating
against him should be summed up, still he would not circumstance for each case, count or incident of grave
have qualified under the Decision rendered by the RTC oral defamation·There is no valid reason therefore why
since if the "STRAIGHT penalty of EIGHT (8) MONTHS the penalties imposed by the RTC should be multiplied
imprisonment" imposed by the RTC is multiplied sixteen only four (4) times, and not sixteen (16) times,
(16) times, the total imposable penalty would be ten (10) considering that the RTC merely affirmed the MeTC as
years and eight (8) months, which is still way beyond the regards the culpability of petitioner in each of the sixteen
limit of not more than six (6) years provided for in the (16) cases and reducing only the duration of the
Probation Law, as amended. penalties imposed therein.
Nowhere in the RTC Decision is it stated or even hinted under the MeTC Decision — but rather to insist on his
at that the accused was acquitted or absolved in any of innocence. The appeal record is wanting of any other
the four (4) counts under each of the four (4) purpose. Thus, in his Memorandum before the RTC, he
Informations, or that any part of thejudgment of raised only three (3) statements of error purportedly
conviction was reversed, or that any of the cases, counts committed by the MeTC all aimed at his acquittal: (a) in
or incidents was dismissed. Otherwise, we will have to finding that the guilt of the accused has been established
account for the twelve (12) other penalties imposed by because of his positive identification by the witness for
the MeTC. Can we? What is clear is that the judgment of the prosecution; (b) in giving full faith and credence to the
conviction rendered by the was affirmed with the sole bare statements of the private complainants despite the
modification on the duration of the penalties. absence of corroborating testimonies; and, (c)in not
acquitting him in all the cases," 18 Consequently,
In fine, considering that the multiple prison terms should petitioner insisted that the trial court committed an error
not be summed up but taken separately as the totality of in relying on his positive identification considering that
all the penalties is not the test, petitioner should have private complainants could not have missed identifying
immediately filed an application for probation as he was him who was their President and General Manager with
already qualified after being convicted by the MeTC, if whom they worked for a good number of years. Petitioner
indeed thereafter he felt humbled, was ready to further argued that although the alleged defamatory
unconditionally accept the verdict of the court and admit words were uttered in the presence of other persons,
his liability. Consequently, in appealing the Decision of mostly private complainants, co-employees and clients,
the MeTC to the RTC, petitioner lost his right to not one of them was presented as a witness. Hence,
probation. For, plainly, the law considers appeal and according to petitioner, the trial court could not have
probation mutually exclusive remedies. 17 convicted him on the basis of the uncorroborative
testimony of private complainants. 19
Third. Petitioner appealed to the RTC not to reduce or
even correct the penalties imposed by the MeTC, but to Certainly, the protestations of petitioner connote
assert his innocence. Nothing more. The cold fact is that profession of guiltlessness, if not complete innocence,
petitioner appealed his conviction to the RTC not for the and do not simply put in issue the propriety of the
sole purpose of reducing his penalties to make him penalties imposed. For sure, the accused never
eligible for probation — since he was already qualified manifested that he was appealing only for the purpose of
correcting a wrong penalty — to reduce it to within the under Sec. 8 of the same Rule 21 and he can be validly
probationable range. Hence, upon interposing an appeal, convicted, as in the instant case, of as many crimes
more so after asserting his innocence therein, petitioner charged in the Information.
should be precluded from seeking probation. By
perfecting his appeal, petitioner ipso facto relinquished Fourth. The application for probation was filed way
his alternative remedy of availing of the Probation Law beyond the period allowed by law. This is vital way
the purpose of which is simply to prevent speculation or beyond the period allowed by law and crucial.
opportunism on the part of an accused who although
already eligible does not at once apply for probation, but In this case, it is clear that the application for probation
doing so only after failing in his appeal. was filed "only after a warrant for the arrest of petitioner
had been issued . . . (and) almost two months after (his)
The fact that petitioner did not elevate the affirmance of receipt of the Decision"  of the RTC. This is a significant
his conviction by the RTC to the Court of Appeals does fact which militates against the instant petition. We quote
not necessarily mean that his appeal to the RTC was with affirmance the well-written, albeit
solely to reduce his penalties. Conversely, he was afraid assailed, ponencia of now Presiding Justice of the Court
that the Court of Appeals would increase his penalties, of Appeals Nathanael P. De Pano, Jr., on the specific
which could be worse for him. Besides, the RTC Decision issue —
had already become final and executory because of the
negligence, according to him, of his former counsel who .
failed to seek possible remedies within the period allowed
by law. Our minds cannot simply rest easy on the proposition
that an application for probation may yet be granted even
Perhaps it should be mentioned that at the outset if it was filed only after judgment has become final, the
petitioner, in accordance with Sec 3, par. (e), Rule 117 of conviction already set for execution and a warrant of
the Rules of Court, 20 should have moved to quash as arrest issued for service of sentence.
each of the four (4) Informations filed against him
charged four (4) separate crimes of grave oral The argument that petitioner had to await the remand of
defamation, committed on four (4) separate days. His the case to the MeTC, which necessarily must be after
failure to do so however may now be deemed a waiver the decision of the RTC had become final, for him to file
the application for probation with the trial court, is to
stretch the law beyond comprehension. The law, simply, In Criminal Case No. C-3217 filed before Branch 16, RTC
does not allow probation after an appeal has been Roxas City, Rogelio Bayotas y Cordova was charged
perfected. with Rape and eventually convicted thereof on June 19,
1991 in a decision penned by Judge Manuel E. Autajay.
Accordingly, considering that prevailing jurisprudence Pending appeal of his conviction, Bayotas died on
treats appeal and probation as mutually exclusive February 4, 1992 at
remedies, and petitioner appealed from his conviction by the National Bilibid Hospital due to cardio respiratory
the MeTC although the imposed penalties were already arrest secondary to hepatic encephalopathy secondary to
probationable, and in his appeal, he asserted only his hipato carcinoma gastric malingering. Consequently, the
innocence and did not even raise the issue of the Supreme Court in its Resolution of May 20, 1992
propriety of the penalties imposed on him, and finally, he dismissed the criminal aspect of the appeal. However, it
filed an application for probation outside the period for required the Solicitor General to file its comment with
perfecting an appeal granting he was otherwise eligible regard to Bayotas' civil liability arising from his
for probation, the instant petition for review should be as commission of the offense charged.
it is hereby DENIED. SO ORDERED.
In his comment, the Solicitor General expressed his view
G.R. No. 102007 September 2, 1994 that the death of accused-appellant did not extinguish his
civil liability as a result of his commission of the offense
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, charged. The Solicitor General, relying on the case
vs. of People v. Sendaydiego  1 insists that the appeal should
ROGELIO BAYOTAS y CORDOVA, accused-appellant. still be resolved for the purpose of reviewing his
conviction by the lower court on which the civil liability is
The Solicitor General for plaintiff-appellee. based.

Public Attorney's Office for accused-appellant. Counsel for the accused-appellant, on the other hand,
opposed the view of the Solicitor General arguing that the
death of the accused while judgment of conviction is
pending appeal extinguishes both his criminal and civil
ROMERO, J.:
penalties. In support of his position, said counsel invoked
the ruling of the Court of Appeals in People v. Castillo extinguished only when the
and Ocfemia  2 which held that the civil obligation in a death of the offender occurs
criminal case takes root in the criminal liability and, before final judgment;
therefore, civil liability is extinguished if accused should
die before final judgment is rendered. With reference to Castillo's criminal liability,
there is no question. The law is plain.
We are thus confronted with a single issue: Does death Statutory construction is unnecessary. Said
of the accused pending appeal of his conviction liability is extinguished.
extinguish his civil liability?
The civil liability, however, poses a
In the aforementioned case of People v. Castillo, this problem. Such liability is extinguished only
issue was settled in the affirmative. This same issue when the death of the offender occurs
posed therein was phrased thus: Does the death of before final judgment. Saddled upon us is
Alfredo Castillo affect both his criminal responsibility and the task of ascertaining the legal import of
his civil liability as a consequence of the alleged crime? the term "final judgment." Is it final judgment
as contradistinguished from an interlocutory
It resolved this issue thru the following disquisition: order? Or, is it a judgment which is final and
executory?
Article 89 of the Revised Penal Code is the
controlling statute. It reads, in part: We go to the genesis of the law. The legal
precept contained in Article 89 of the
Art. 89. How criminal liability Revised Penal Code heretofore transcribed
is totally extinguished. — is lifted from Article 132 of the Spanish El
Criminal liability is totally Codigo Penal de 1870 which, in part,
extinguished: recites:

1. By the death of the convict, La responsabilidad penal se

as to the personal penalties; extingue.
and as to the pecuniary
penalties liability therefor is
 1. Por la muerte del reo en is confirmed — "en condena determinada;"
cuanto a las penas or, in the words of Groizard, the guilt of the
personales siempre, y accused becomes — "una verdad legal."
respecto a las pecuniarias, Prior thereto, should the accused die,
solo cuando a su fallecimiento according to Viada, "no hay legalmente, en
no hubiere recaido sentencia tal caso, ni reo, ni delito, ni responsabilidad
firme. criminal de ninguna clase." And, as Judge
Kapunan well explained, when a defendant
xxx xxx xxx dies before judgment becomes executory,
"there cannot be any determination by final
The code of 1870 . . . it will be observed judgment whether or not the felony upon
employs the term "sentencia firme." What is which the civil action might arise exists," for
"sentencia firme" under the old statute? the simple reason that "there is no party
defendant." (I Kapunan, Revised Penal
XXVIII Enciclopedia Juridica Española, p. Code, Annotated, p. 421. Senator
473, furnishes the ready answer: It says: Francisco holds the same view. Francisco,
Revised Penal Code, Book One, 2nd ed.,
SENTENCIA FIRME. La
pp. 859-860)
sentencia que adquiere la
fuerza de las definitivas por The legal import of the term "final judgment"
no haberse utilizado por las is similarly reflected in the Revised Penal
partes litigantes recurso Code. Articles 72 and 78 of that legal body
alguno contra ella dentro de mention the term "final judgment" in the
los terminos y plazos legales sense that it is already enforceable. This
concedidos al efecto. also brings to mind Section 7, Rule 116 of
the Rules of Court which states that a
"Sentencia firme" really should be
judgment in a criminal case becomes final
understood as one which is definite.
"after the lapse of the period for perfecting
Because, it is only when judgment is such
an appeal or when the sentence has been
that, as Medina y Maranon puts it, the crime
partially or totally satisfied or served, or the civil liability." I Kapunan, Revised Penal
defendant has expressly waived in writing Code, Annotated, supra.
his right to appeal."
Here is the situation obtaining in the
By fair intendment, the legal precepts and present case: Castillo's criminal liability is
opinions here collected funnel down to one out. His civil liability is sought to be
positive conclusion: The term final judgment enforced by reason of that criminal liability.
employed in the Revised Penal Code But then, if we dismiss, as we must, the
means judgment beyond recall. Really, as criminal action and let the civil aspect
long as a judgment has not become remain, we will be faced with the
executory, it cannot be truthfully said that anomalous situation whereby we will be
defendant is definitely guilty of the felony called upon to clamp civil liability in a case
charged against him. where the source thereof — criminal liability
— does not exist. And, as was well stated
Not that the meaning thus given to final in Bautista, et al. vs. Estrella, et al., CA-
judgment is without reason. For where, as G.R.
in this case, the right to institute a separate No. 19226-R, September 1, 1958, "no party
civil action is not reserved, the decision to can be found and held criminally liable in a
be rendered must, of necessity, cover "both civil suit," which solely would remain if we
the criminal and the civil aspects of the are to divorce it from the criminal
case." People vs. Yusico (November 9, proceeding."
1942), 2 O.G., No. 100, p. 964. See
also: People vs. Moll, 68 Phil., 626, This ruling of the Court of Appeals in
3
634; Francisco, Criminal Procedure, 1958 the Castillo case   was adopted by the Supreme Court in
ed., Vol. I, pp. 234, 236. Correctly, Judge the cases of People of the Philippines v. Bonifacio
Kapunan observed that as "the civil action Alison, et al., 4 People of the Philippines v. Jaime Jose, et
is based solely on the felony committed and al. 5 and People of the Philippines v. Satorre  6 by
of which the offender might be found guilty, dismissing the appeal in view of the death of the accused
the death of the offender extinguishes the pending appeal of said cases.
As held by then Supreme Court Justice Fernando in We see no merit in the plea that the civil
the Alison case: liability has been extinguished, in view of
the provisions of the Civil Code of the
The death of accused-appellant Bonifacio Philippines of 1950 (Rep. Act No. 386) that
Alison having been established, and became operative eighteen years after the
considering that there is as yet no final revised Penal Code. As pointed out by the
judgment in view of the pendency of the Court below, Article 33 of the Civil Code
appeal, the criminal and civil liability of the establishes a civil action for damages on
said accused-appellant Alison was account of physical injuries,
extinguished by his death (Art. 89, Revised entirely separate and distinct from the
Penal Code; Reyes' Criminal Law, 1971 criminal action.
Rev. Ed., p. 717, citing People v. Castillo
and Ofemia C.A., 56 O.G. 4045); Art. 33. In cases of
consequently, the case against him should defamation, fraud, and
be dismissed. physical injuries, a civil action
for damages, entirely
On the other hand, this Court in the subsequent cases separate and distinct from the
of Buenaventura Belamala v. Marcelino criminal action, may be
7
Polinar   and Lamberto Torrijos v. The Honorable Court brought by the injured party.
of Appeals  8 ruled differently. In the former, the issue Such civil action shall proceed
decided by this court was: Whether the civil liability of independently of the criminal
one accused of physical injuries who died before final prosecution, and shall require
judgment is extinguished by his demise to the extent of only a preponderance of
barring any claim therefore against his estate. It was the evidence.
contention of the administrator-appellant therein that the
death of the accused prior to final judgment extinguished Assuming that for lack of express
all criminal and civil liabilities resulting from the offense, reservation, Belamala's civil action for
in view of Article 89, paragraph 1 of the Revised Penal damages was to be considered instituted
Code. However, this court ruled therein: together with the criminal action still, since
 both proceedings were terminated without Articles 19, 20 and 21 of the Civil Code since said
final adjudication, the civil action of the accused had swindled the first and second
offended party under Article 33 may yet be vendees of the property subject matter of the
enforced separately. contract of sale. It therefore concluded:
"Consequently, while the death of the accused
In Torrijos, the Supreme Court held that: herein extinguished his criminal liability including
fine, his civil liability based on the laws of human
xxx xxx xxx relations remains."

It should be stressed that the extinction of Thus it allowed the appeal to proceed with respect to the
civil liability follows the extinction of the civil liability of the accused, notwithstanding the extinction
criminal liability under Article 89, only when of his criminal liability due to his death pending appeal of
the civil liability arises from the criminal act his conviction.
as its only basis. Stated differently, where
the civil liability does not exist To further justify its decision to allow the civil liability to
independently of the criminal responsibility, survive, the court relied on the following ratiocination:
the extinction of the latter by death, ipso Since Section 21, Rule 3 of the Rules of Court 9 requires
facto extinguishes the former, provided, of the dismissal of all money claims against the defendant
course, that death supervenes before final whose death occurred prior to the final judgment of the
judgment. The said principle does not apply Court of First Instance (CFI), then it can be inferred that
in instant case wherein the civil liability actions for recovery of money may continue to be heard
springs neither solely nor originally from the on appeal, when the death of the defendant supervenes
crime itself but from a civil contract of after the CFI had rendered its judgment. In such case,
purchase and sale. (Emphasis ours) explained this tribunal, "the name of the offended party
shall be included in the title of the case as plaintiff-
x x x           x x x          x x x appellee and the legal representative or the heirs of the
deceased-accused should be substituted as defendants-
In the above case, the court was convinced that appellants."
the civil liability of the accused who was charged
with estafa could likewise trace its genesis to
It is, thus, evident that as jurisprudence evolved from The claim of complainant Province of
Castillo to Torrijos, the rule established was that the Pangasinan for the civil liability survived
survival of the civil liability depends on whether the same Sendaydiego because his death occurred
can be predicated on sources of obligations other than after final judgment was rendered by the
delict. Stated differently, the claim for civil liability is Court of First Instance of Pangasinan,
also extinguished together with the criminal action if which convicted him of three complex
it were solely based thereon, i.e., civil liability ex crimes of malversation through falsification
delicto. and ordered him to indemnify the Province
in the total sum of P61,048.23 (should be
However, the Supreme Court in People v. Sendaydiego, P57,048.23).
et al. 10 departed from this long-established principle of
law. In this case, accused Sendaydiego was charged The civil action for the civil liability is
with and convicted by the lower court of malversation thru deemed impliedly instituted with the
falsification of public documents. Sendaydiego's death criminal action in the absence of express
supervened during the pendency of the appeal of his waiver or its reservation in a separate
conviction. action (Sec. 1, Rule 111 of the Rules of
Court). The civil action for the civil liability is
This court in an unprecedented move resolved to dismiss separate and distinct from the criminal
Sendaydiego's appeal but only to the extent of his action (People and Manuel vs. Coloma, 105
criminal liability. His civil liability was allowed to survive Phil. 1287; Roa vs. De la Cruz, 107 Phil. 8).
although it was clear that such claim thereon was
exclusively dependent on the criminal action already When the action is for the recovery of
extinguished. The legal import of such decision was for money and the defendant dies before final
the court to continue exercising appellate jurisdiction over judgment in the Court of First Instance, it
the entire appeal, passing upon the correctness of shall be dismissed to be prosecuted in the
Sendaydiego's conviction despite dismissal of the manner especially provided in Rule 87 of
criminal action, for the purpose of determining if he is the Rules of Court (Sec. 21, Rule 3 of the
civilly liable. In doing so, this Court issued a Resolution of Rules of Court).
July 8, 1977 stating thus:
The implication is that, if the defendant dies whether or not his estate is under
after a money judgment had been rendered administration and has a duly appointed
against him by the Court of First Instance, judicial administrator. Said heirs or
the action survives him. It may be continued administrator will be substituted for the
on appeal (Torrijos vs. Court of Appeals, L- deceased insofar as the civil action for the
40336, October 24, 1975; 67 SCRA 394). civil liability is concerned (Secs. 16 and 17,
Rule 3, Rules of Court).
The accountable public officer may still be
civilly liable for the funds improperly Succeeding cases 11 raising the identical issue have
disbursed although he has no criminal maintained adherence to our ruling in Sendaydiego; in
liability (U.S. vs. Elvina, 24 Phil. 230; other words, they were a reaffirmance of our
Philippine National Bank vs. Tugab, 66 Phil. abandonment of the settled rule that a civil liability solely
583). anchored on the criminal (civil liability ex delicto) is
extinguished upon dismissal of the entire appeal due to
In view of the foregoing, notwithstanding the demise of the accused.
the dismissal of the appeal of the deceased
Sendaydiego insofar as his criminal liability But was it judicious to have abandoned this old ruling? A
is concerned, the Court Resolved to re-examination of our decision in Sendaydiego impels us
continue exercising appellate jurisdiction to revert to the old ruling.
over his possible civil liability for the money
claims of the Province of Pangasinan To restate our resolution of July 8, 1977 in Sendaydiego:
arising from the alleged criminal acts The resolution of the civil action impliedly instituted in the
complained of, as if no criminal case had criminal action can proceed irrespective of the latter's
been instituted against him, thus making extinction due to death of the accused pending appeal of
applicable, in determining his civil liability, his conviction, pursuant to Article 30 of the Civil Code
Article 30 of the Civil Code . . . and, for that and Section 21, Rule 3 of the Revised Rules of Court.
purpose, his counsel is directed to inform
this Court within ten (10) days of the names Article 30 of the Civil Code provides:
and addresses of the decedent's heirs or
 When a separate civil action is brought to effect merely beg the question of whether civil liability ex
demand civil liability arising from a criminal delicto survives upon extinction of the criminal action due
offense, and no criminal proceedings are to death of the accused during appeal of his conviction.
instituted during the pendency of the civil
case, a preponderance of evidence shall This is because whether asserted in the criminal action or
likewise be sufficient to prove the act in a separate civil action, civil liability ex delicto  is
complained of. extinguished by the death of the accused while his
conviction is on appeal. Article 89 of the Revised Penal
Clearly, the text of Article 30 could not possibly lend Code is clear on this matter:
support to the ruling in Sendaydiego.
Art. 89. How criminal liability is totally
Nowhere in its text is there a grant of authority to extinguished. — Criminal liability is totally
continue exercising appellate jurisdiction over the extinguished:
accused's civil liability ex delicto when his death
supervenes during appeal. 1. By the death of the convict, as to the
personal penalties; and as to pecuniary
What Article 30 recognizes is an alternative and separate penalties, liability therefor is extinguished
civil action which may be brought to demand civil liability only when the death of the offender occurs
arising from a criminal offense independently of any before final judgment;
criminal action.
x x x           x x x          x x x
In case no criminal proceedings are instituted during the
pendency of said civil case, the quantum of evidence However, the ruling in Sendaydiego deviated from the
needed to prove the criminal act will have to be that expressed intent of Article 89. It allowed claims for civil
which is compatible with civil liability and that is, liability ex delicto to survive by ipso facto treating the civil
preponderance of evidence and not proof of guilt beyond action impliedly instituted with the criminal, as one filed
reasonable doubt. under Article 30, as though no criminal proceedings had
been filed but merely a separate civil action. This had the
Citing or invoking Article 30 to justify the survival of the effect of converting such claims from one which is
civil action despite extinction of the criminal would in dependent on the outcome of the criminal action to an
entirely new and separate one, the prosecution of which which refers to the institution of a separate civil action
does not even necessitate the filing of criminal that does not draw its life from a criminal proceeding.
proceedings. 12 One would be hard put to pinpoint the
statutory authority for such a transformation. It is to be The Sendaydiego resolution of July 8, 1977, however,
borne in mind that in recovering civil liability ex delicto, failed to take note of this fundamental distinction when it
the same has perforce to be determined in the criminal allowed the survival of the civil action for the recovery of
action, rooted as it is in the court's pronouncement of the civil liability ex delicto by treating the same as a separate
guilt or innocence of the accused. This is but to render civil action referred to under Article 30. Surely, it will take
fealty to the intendment of Article 100 of the Revised more than just a summary judicial pronouncement to
Penal Code which provides that "every person criminally authorize the conversion of said civil action to an
liable for a felony is also civilly liable." In such cases, independent one such as that contemplated under Article
extinction of the criminal action due to death of the 30.
accused pending appeal inevitably signifies the
concomitant extinction of the civil liability. Mors Omnia Ironically however, the main decision in Sendaydiego did
Solvi. Death dissolves all things. not apply Article 30, the resolution of July 8, 1977
notwithstanding. Thus, it was held in the main decision:
In sum, in pursuing recovery of civil liability arising from
crime, the final determination of the criminal liability is a Sendaydiego's appeal will be resolved only
condition precedent to the prosecution of the civil action, for the purpose of showing his criminal
such that when the criminal action is extinguished by the liability which is the basis of the civil liability
demise of accused-appellant pending appeal thereof, for which his estate would be liable. 13
said civil action cannot survive. The claim for civil liability
springs out of and is dependent upon facts which, if true, In other words, the Court, in resolving the issue of his
would constitute a crime. civil liability, concomitantly made a determination on
whether Sendaydiego, on the basis of evidenced
Such civil liability is an inevitable consequence of the adduced, was indeed guilty beyond reasonable doubt of
criminal liability and is to be declared and enforced in the committing the offense charged. Thus, it upheld
criminal proceeding. This is to be distinguished from that Sendaydiego's conviction and pronounced the same as
which is contemplated under Article 30 of the Civil Code the source of his civil liability. Consequently, although
Article 30 was not applied in the final determination of
Sendaydiego's civil liability, there was a reopening of the The implication is that, if the defendant dies
criminal action already extinguished which served as after a money judgment had been rendered
basis for Sendaydiego's civil liability. against him by the Court of First Instance,
the action survives him. It may be continued
We reiterate: Upon death of the accused pending appeal on appeal.
of his conviction, the criminal action is extinguished
inasmuch as there is no longer a defendant to stand as Sadly, reliance on this provision of law is misplaced.
the accused; the civil action instituted therein for recovery From the standpoint of procedural law, this course taken
of civil liability ex delicto is ipso facto extinguished, in Sendaydiego cannot be sanctioned. As correctly
grounded as it is on the criminal. observed by Justice Regalado:

Section 21, Rule 3 of the Rules of Court was also xxx xxx xxx
invoked to serve as another basis for
the Sendaydiego resolution of July 8, 1977. In citing Sec. I do not, however, agree with the
21, Rule 3 of the Rules of Court, the Court made the justification advanced in
inference that civil actions of the type involved both Torrijos and Sendaydiego which,
in Sendaydiego consist of money claims, the recovery of relying on the provisions of Section 21,
which may be continued on appeal if defendant dies Rule 3 of the Rules of Court, drew the
pending appeal of his conviction by holding his estate strained implication therefrom that where
liable therefor. Hence, the Court's conclusion: the civil liability instituted together with the
criminal liabilities had already passed
"When the action is for the recovery of beyond the judgment of the then Court of
money" "and the defendant dies before final First Instance (now the Regional Trial
judgment in the court of First Instance, it Court), the Court of Appeals can continue
shall be dismissed to be prosecuted in the to exercise appellate jurisdiction thereover
manner especially provided" in Rule 87 of despite the extinguishment of the
the Rules of Court (Sec. 21, Rule 3 of the component criminal liability of the
Rules of Court). deceased. This pronouncement, which has
been followed in the Court's judgments
subsequent and consonant
 to Torrijos and Sendaydiego, should be set estate. These are: funeral expenses, expenses for the
aside and abandoned as being clearly last illness, judgments for money and claim arising from
erroneous and unjustifiable. contracts, expressed or implied. It is clear that money
claims arising from delict do not form part of this
Said Section 21 of Rule 3 is a rule of civil exclusive enumeration. Hence, there could be no legal
procedure in ordinary civil actions. There is basis in (1) treating a civil action ex delicto as an ordinary
neither authority nor justification for its contractual money claim referred to in Section 21, Rule 3
application in criminal procedure to civil of the Rules of Court and (2) allowing it to survive by
actions instituted together with and as part filing a claim therefor before the estate of the deceased
of criminal actions. Nor is there any accused. Rather, it should be extinguished upon
authority in law for the summary conversion extinction of the criminal action engendered by the death
from the latter category of an ordinary civil of the accused pending finality of his conviction.
action upon the death of the offender. . . .
Accordingly, we rule: if the private offended party, upon
Moreover, the civil action impliedly instituted in a criminal extinction of the civil liability ex delicto desires to recover
proceeding for recovery of civil liability ex delicto can damages from the same act or omission complained
hardly be categorized as an ordinary money claim such of, he must subject to Section 1, Rule 111 16 (1985 Rules
as that referred to in Sec. 21, Rule 3 enforceable before on Criminal Procedure as amended) file a separate civil
the estate of the deceased accused. action, this time predicated not on the felony previously
charged but on other sources of obligation. The source of
Ordinary money claims referred to in Section 21, Rule 3 obligation upon which the separate civil action is
must be viewed in light of the provisions of Section 5, premised determines against whom the same shall be
Rule 86 involving claims against the estate, which enforced.
in Sendaydiego was held liable for Sendaydiego's civil
liability. "What are contemplated in Section 21 of Rule 3, If the same act or omission complained of also arises
in relation to Section 5 of Rule 86, 14 are contractual from quasi-delict or may, by provision of law, result in an
money claims while the claims involved in civil liability ex injury to person or property (real or personal), the
delicto may include even the restitution of personal or separate civil action must be filed against the executor or
real property." 15 Section 5, Rule 86 provides an exclusive
enumeration of what claims may be filed against the
administrator 17 of the estate of the accused pursuant to Conversely, if the same act or omission complained of
Sec. 1, Rule 87 of the Rules of Court: also arises from contract, the separate civil action must
be filed against the estate of the accused, pursuant to
Sec. 1. Actions which may and which may Sec. 5, Rule 86 of the Rules of Court.
not be brought against executor or
administrator. — No action upon a claim for From this lengthy disquisition, we summarize our ruling
the recovery of money or debt or interest herein:
thereon shall be commenced against the
executor or administrator; but actions to 1. Death of the accused pending appeal of his conviction
recover real or personal property, or an extinguishes his criminal liability as well as the civil
interest therein, from the estate, or to liability based solely thereon. As opined by Justice
enforce a lien thereon, and actions to Regalado, in this regard, "the death of the accused prior
recover damages for an injury to person or to final judgment terminates his criminal liability
property, real or personal, may be and only the civil liability directly arising from and based
commenced against him. solely on the offense committed, i.e., civil liability ex
delicto in senso strictiore."
This is in consonance with our ruling in
Belamala 18 where we held that, in recovering damages 2. Corollarily, the claim for civil liability survives
for injury to persons thru an independent civil action notwithstanding the death of accused, if the same may
based on Article 33 of the Civil Code, the same must be also be predicated on a source of obligation other than
filed against the executor or administrator of the estate of delict. 19 Article 1157 of the Civil Code enumerates these
deceased accused and not against the estate under Sec. other sources of obligation from which the civil liability
5, Rule 86 because this rule explicitly limits the claim to may arise as a result of the same act or omission:
those for funeral expenses, expenses for the last
sickness of the decedent, judgment for money and claims a) Law 20
arising from contract, express or implied. Contractual
money claims, we stressed, refers only to purely b) Contracts
personal obligations other than those which have their
c) Quasi-contracts
source in delict or tort.
 d) . . . act complained of, i.e., rape. Consequently, the appeal is
hereby dismissed without qualification.
e) Quasi-delicts
WHEREFORE, the appeal of the late Rogelio Bayotas is
3. Where the civil liability survives, as explained in DISMISSED with costs de oficio.
Number 2 above, an action for recovery therefor may be
pursued but only by way of filing a separate civil action SO ORDERED.
and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate civil G.R. No. 169588               October 7, 2013
action may be enforced either against the
executor/administrator or the estate of the accused, JADEWELL PARKING SYSTEMS CORPORATION
depending on the source of obligation upon which the represented by its manager and authorized
same is based as explained above. representative Norma Tan, Petitioner,
vs.
4. Finally, the private offended party need not fear a HON. JUDGE NELSON F. LIDUA SR., Presiding Judge
forfeiture of his right to file this separate civil action by of The Municipal Trial Court Branch 3, Baguio City,
prescription, in cases where during the prosecution of the BENEDICTO BALAJADIA, EDWIN ANG, "JOHN
criminal action and prior to its extinction, the private- DOES" and "PETER DOES" Respondents.
offended party instituted together therewith the civil
action. In such case, the statute of limitations on the civil DECISION
liability is deemed interrupted during the pendency of the
criminal case, conformably with provisions of Article LEONEN, J.:
1155 21 of the Civil Code, that should thereby avoid any
We are asked to rule on this Petition for Review on
apprehension on a possible privation of right by
Certiorari under Rule 45 of the Rules of Court, praying
prescription. 22
that the assailed Decision of Branch 7 of the Regional
Applying this set of rules to the case at bench, we hold Trial Court of Baguio City and Order dated August 15,
that the death of appellant Bayotas extinguished his 2005 be reversed and that Criminal Case Nos. 112934
criminal liability and the civil liability based solely on the and 112935 be ordered reinstated and prosecuted before
the Municipal Trial Court of Baguio City.
Petitioner Jadewell Parking Systems Corporation is a Sacliwan alleged in their affidavit-complaint that on May
private parking operator duly authorized to operate and 7, 2003, along Upper Mabini Street, Baguio City, herein
manage the parking spaces in Baguio City pursuant to respondents Benedicto Balajadia, Jeffrey Walan and two
City Ordinance 003-2000. It is also authorized under (2) John Does forcibly removed the clamp on the wheel
Section 13 of the City Ordinance to render any motor of a Nissan Cefiro car with Plate No. UTD 933, belonging
vehicle immobile by placing its wheels in a clamp if the to Jeffrey Walan which was then considered illegally
vehicle is illegally parked.1 parked for failure to pay the prescribed parking fee. Such
car was earlier rendered immobile by such clamp by
According to the Resolution of the Office of the Provincial Jadewell personnel. After forcibly removing the clamp,
Prosecutor, San Fernando City, La Union, the facts respondents took and carried it away depriving its owner,
leading to the filing of the Informations are the following: Jadewell, its use and value which is ₱26,250.00.
According to complainants, the fine of ₱500.00 and the
Jadewell Parking Systems Corporation (Jadewell), thru declamping fee of ₱500.00 were not paid by the
[sic] its General Manager Norma Tan and Jadewell respondents.2
personnel Januario S. Ulpindo and Renato B. Dulay
alleged in their affidavit-complaint that on May 17, 2003, The incident resulted in two cases filed by petitioner and
the respondents in I.S No. 2003-1996 Edwin Ang, respondents against each other. Petitioner Jadewell filed
Benedicto Balajadia and John Doe dismantled, took and two cases against respondents: Robbery under I.S. Nos.
carried away the clamp attached to the left front wheel of 2003-1996 and 2003-1997. Petitioner filed an Affidavit-
a Mitsubishi Adventure with Plate No. WRK 624 owned Complaint against respondents Benedicto Balajadia,
by Edwin Ang. Accordingly, the car was then illegally Jeffrey Walan, and three (3) John Does, one of whom
parked and left unattended at a Loading and Unloading was eventually identified as respondent Ramon Ang. The
Zone. The value of the clamp belonging to Jadewell Affidavit-Complaint was filed with the Office of the City
which was allegedly forcibly removed with a piece of Prosecutor of Baguio City on May 23, 2003.3 A
metal is ₱26,250.00. The fines of ₱500.00 for illegal preliminary investigation took place on May 28, 2003.
parking and the declamping fee of ₱500.00 were also not Respondent Benedicto Balajadia likewise filed a case
paid by the respondents herein. charging Jadewell president, Rogelio Tan, and four (4) of
Jadewell's employees with Usurpation of Authority/Grave
In I.S. No., 2003-1997, Jadewell thru [sic] its General Coercion in I.S. No. 2003-1935.
Manager Norina C. Tan, Renato B. Dulay and Ringo
In his Counter-affidavit for the two cases he filed for of the cars involved in these cases and their failure to pay
himself and on behalf of his co-respondents, respondent the prescribed fees were in violation of Sec. 21 of Baguio
Benedicto Balajadia denied that his car was parked City Ordinance No. 003-2000 which prescribes fines and
illegally. He admitted that he removed the clamp penalties for violations of the provisions of such
restricting the wheel of his car since he alleged that the ordinance. Certainly, they should not have put the law
placing of a clamp on the wheel of the vehicle was an into their own hands. (Emphasis supplied)
illegal act. He alleged further that he removed the clamp
not to steal it but to remove the vehicle from its clamp so WHEREFORE, premises considered, there is probable
that he and his family could continue using the car. He cause against all the respondents, except Jeffrey Walan
also confirmed that he had the clamp with him, and he or Joseph Walan (who has been dragged into this
intended to use it as a piece of evidence to support the controversy only by virtue of the fact that he was still the
Complaint he filed against Jadewell.4 registered owner of the Nissan Cefiro car) for violation of
Section 21 of City Ord. No. 003-2000 in both cases and
In the Resolution5 of the Office of the Provincial we hereby file the corresponding informations against
Prosecutor of San Fernando City, La Union, Acting City them in Court.6
Prosecutor Mario Anacleto Banez found probable cause
to file a case of Usurpation of Authority against the Prosecutor Banez issued this Resolution on July 25,
petitioner. Regarding the case of Robbery against 2003.
respondents, Prosecutor Banez stated that:
On October 2, 2003, two criminal Informations were filed
We find no probable cause to charge respondents in with the Municipal Trial Court of Baguio City dated July
these two (2) cases for the felony of Robbery. The 25, 2003, stating:
elements of Robbery, specifically the intent to gain and
force upon things are absent in the instant cases, thereby That on May 17, 2003 at Baguio City and within the
negating the existence of the crime. jurisdiction of this Honorable Court, the above-named
accused with unity of action and concerted design, did
xxxx then and there, with unity of action and concerted design,
willfully, unlawfully and feloniously forcibly dismantled
We, however, respectfully submit that the acts of [sic] and took [sic] an immobilizing clamp then attached
respondents in removing the wheel clamps on the wheels to the left front wheel of a Mitsubishi Adventure vehicle
with Plate No. WRK 624 belonging to Edwin Ang which
was earlier rendered immobilized by such clamp by
Jadewell Personnel's for violation of the Baguio City In their Motion to Quash, respondents argued that:
ordinance No. 003-2600 to the damage and prejudice of
private complainant Jadewell Parking System 1. The accused in this case are charged with
Corporation (Jadewell) which owns such clamp worth violation of Baguio City Ordinance No. 003-2000.
₱26,250.00 and other consequential damages.
2. Article 89 of the Revised Penal [sic] provides
CONTRARY TO LAW, that criminal liability is totally extinguished by
prescription of the crime.
San Fernando City, La Union for Baguio City, this 25th
day of July 2003.7 3. Act No. 3326, as amended by Act No. 3763,
provides: "Section 1. x x x Violations penalized by
The cases were docketed as Criminal Case Nos. 112934 municipal ordinances shall prescribed [sic] after
and 112935 with the Municipal Trial Court of Baguio City, two months."
Branch 3. Respondent Benedicto Balajadia and the other
accused through their counsel Paterno Aquino filed a 4. As alleged in the Information, the offense
January 20, 2004 Motion to Quash and/or charged in this case was committed on May 7,
Manifestation8 on February 2, 2004. The Motion to Quash 2003. 5. As can be seen from the right hand
and/or Manifestation sought the quashal of the two corner of the Information, the latter was filed with
Informations on the following grounds: extinguishment of this Honorable Court on October 2, 2003, almost
criminal action or liability due to prescription; failure of the five (5) months after the alleged commission of the
Information to state facts that charged an offense; and offense charged. Hence, criminal liability of the
the imposition of charges on respondents with more than accused in this case, if any, was already
one offense. extinguished by prescription when the Information
was filed.9

In an Order10 dated February 10, 2004, respondent Judge

Nelson F. Lidua, Sr., Presiding Judge of the Municipal
Trial Court of Baguio City, Branch 3, granted the Under Section 9 of the Rule [sic] on Summary Procedure,
accused's Motion to Quash and dismissed the cases. the running of the prescriptive period shall be halted on
the date the case is filed in Court and not on any date
Petitioner filed a Motion for Reconsideration on February before that (Zaldivia vs. Reyes, Jr. G.R. No. 102342, July
27, 2004 responding to the February 10, 2004 Order11 to 3, 1992, En Banc).
argue among other points that:
In case of conflict, the Rule on Summary Procedure as
6.b. For another, the offenses charged have not yet the special law prevails over Sec. 1 of Rule 110 of the
prescribed. Under the law, the period of prescription of Rules on Criminal Procedure and also Rule 110 of the
offenses shall be interrupted by the filing of the complaint Rules of Criminal Procedure must yield to Act No. 3326
or information. While it may be true that the Informations or "AN ACT TO ESTABLISH PERIODS OF
in these cases have been filed only on October 2, 2003, PRESCRIPTION FOR VIOLATIONS PENALIZED BY
the private complainant has, however, filed its criminal SPECIAL ACTS AND MUNICIPAL ORDINANCES AND
complaint on May 23, 2003, well within the prescribed TO PROVIDE WHEN PRESCRIPTION SHALL BEGIN
period.12 TO RUN" (Ibid).

Respondents filed their Opposition13 on March 24, 2004, Petitioner then filed a Petition16 for Certiorari under Rule
and petitioner filed a Reply14 on April 1, 2004. 65 with the Regional Trial Court of Baguio City. The case
was raffled to Branch 7 of the Regional Trial Court of
The respondent judge released a Resolution15 dated April Baguio City. Petitioners contended that the respondent
16, 2004 upholding the Order granting respondents' judge committed grave abuse of discretion amounting to
Motion to Quash. The Resolution held that: lack or excess of jurisdiction in dismissing Criminal Case
Nos. 112934 and 112935 on the ground of prescription.
For the guidance of the parties, the Court will make an Petitioners argued that the respondent judge ruled
extended resolution on one of the ground [sic] for the erroneously saying that the prescriptive period for the
motion to quash, which is that the criminal action has offenses charged against the private respondents was
been extinguished on grounds of prescription. halted by the filing of the Complaint/Information in court
and not when the Affidavit-Complaints were filed with the
These offenses are covered by the Rules on Summary
Office of the City Prosecutor of Baguio City. Petitioner
Procedure being alleged violations of City Ordinances.
cited Section 1 of Rule 110 of the Rules on Criminal Summary Procedure, these criminal cases "shall be
Procedure: commenced only by information." These criminal cases
cannot be commenced in any other way.
x x x "criminal actions shall be instituted x x x in x x x
other chartered cities, the complaint shall be filed with the Moreover, the ruling of the Supreme Court in Zaldivia vs.
office of the prosecutor unless otherwise provided in their Reyes cited in the assailed Resolution does not apply in
charter" and the last paragraph thereof states that "the this case. The offense charged in Zaldivia is a violation of
institution of the criminal action shall interrupt the running municipal ordinance in which case, the complaint should
of the period of prescription of the offense charged have been filed directly in court as required by Section 9
unless otherwise provided in special laws."17 of the old Rules on Summary Procedure. On the other
hand, Criminal Case Nos. 112934 and 112935 are for
Petitioner contended further that: violations of a city ordinance and as aforestated, "shall be
commenced only by information."18
the filing of the criminal complaint with the Office of the
City Prosecutor of Baguio City, not the filing of the Thus, petitioner contended that the filing of the criminal
criminal information before this Honorable Court, is the complaint with the Office of the City Prosecutor stopped
reckoning point in determining whether or not the criminal the running of the two-month prescriptive period. Hence,
action in these cases had prescribed. the offenses charged have not prescribed.

xxxx In their Comment,19 respondents maintained that the

respondent judge did not gravely abuse his discretion.
The offenses charged in Criminal Case Nos. 112934 and They held that Section 2 of Act No. 3326, as amended,
112935 are covered by the Revised Rules on Summary provides that:
Procedure, not by the old Rules on Summary Procedure.
Considering that the offenses charged are for violations Sec. 2. Prescription shall begin to run from the day of the
of a City Ordinance, the criminal cases can only be commission of the violation of the law, and if the same be
commenced by informations. Thus, it was only legally not known at the time, from the discovery thereof and the
and procedurally proper for the petitioner to file its institution of judicial proceeding for its investigation and
complaint with the Office of the City Prosecutor of Baguio punishment.
City as required by Section 11 of the new Rules on
The prescription shall be interrupted when proceedings dated February 10, 2004 and the Resolution dated April
are instituted against the guilty person, and shall begin to 16, 2004.
run again if the proceedings are dismissed for reasons
not constituting jeopardy.20 (Emphasis supplied) Petitioners then filed a May 17, 2005 Motion for
Reconsideration which was denied by the Regional Trial
Respondents argued that Zaldivia v. Reyes21 held that Court in an August 15, 2005 Order.
the proceedings mentioned in Section 2 of Act No. 3326,
as amended, refer to judicial proceedings . Thus, this Hence, this Petition.
Court, in Zaldivia, held that the filing of the Complaint
with the Office of the Provincial Prosecutor was not a The principal question in this case is whether the filing of
judicial proceeding. The prescriptive period commenced the Complaint with the Office of the City Prosecutor on
from the alleged date of the commission of the crime on May 23, 2003 tolled the prescription period of the
May 7, 2003 and ended two months after on July 7, commission of the offense charged against respondents
2003. Since the Informations were filed with the Balajadia, Ang, "John Does," and "Peter Does."
Municipal Trial Court on October 2, 2003, the respondent
judge did not abuse its discretion in dismissing Criminal Petitioner contends that the prescription period of the
Case Nos. 112934 and 112935. offense in Act No. 3326, as amended by Act No. 3763,
does not apply because respondents were charged with
In a Decision dated April 20, 2005, the Regional Trial the violation of a city ordinance and not a municipal
Court of Baguio City Branch 7, through Judge Clarence ordinance. In any case, assuming arguendo that the
F. Villanueva, dismissed the Petition for Certiorari. The prescriptive period is indeed two months, filing a
Regional Trial Court held that, since cases of city Complaint with the Office of the City Prosecutor tolled the
ordinance violations may only be commenced by the prescription period of two months. This is because Rule
filing of an Information, then the two-month prescription 110 of the Rules of Court provides that, in Manila and in
period may only be interrupted by the filing of other chartered cities, the Complaint shall be filed with
Informations (for violation of City Ordinance 003-2000) the Office of the Prosecutor unless otherwise provided in
against the respondents in court. The Regional Trial their charters.
Court of Baguio City, Branch 7, ruled in favor of the
respondents and upheld the respondent judge’s Order In their Comment,22 respondents maintain that
respondent Judge Lidua did not err in dismissing the
cases based on prescription. Also, respondents raise that The Petition is denied.
the other grounds for dismissal they raised in their Motion
to Quash, namely, that the facts charged constituted no The resolution of this case requires an examination of
offense and that respondents were charged with more both the substantive law and the procedural rules
than one offense, were sustained by the Metropolitan governing the prosecution of the offense. With regard to
Trial Court. Also, respondents argue that petitioner had the prescription period, Act No. 3326, as amended, is the
no legal personality to assail the Orders, since Jadewell only statute that provides for any prescriptive period for
was not assailing the civil liability of the case but the the violation of special laws and municipal ordinances.
assailed Order and Resolution. This was contrary to the No other special law provides any other prescriptive
ruling in People v. Judge Santiago23 which held that the period, and the law does not provide any other
private complainant may only appeal the civil aspect of distinction.
the criminal offense and not the crime itself.
Petitioner may not argue that Act No. 3326 as amended
24
In the Reply,  petitioner argues that the respondent does not apply.
judge only dismissed the case on the ground of
prescription, since the Resolution dated April 16, 2004 In Romualdez v. Hon. Marcelo,27 this Court defined the
only cited that ground. The Order dated February 10, parameters of prescription:
2004 merely stated but did not specify the grounds on
which the cases were dismissed. Petitioner also In resolving the issue of prescription of the offense
maintains that the proceedings contemplated in Section 2 charged, the following should be considered: (1) the
of Act No. 3326 must include the preliminary investigation period of prescription for the offense charged; (2) the
proceedings before the National Prosecution Service in time the period of prescription starts to run; and (3) the
light of the Rules on Criminal Procedure25 and Revised time the prescriptive period was interrupted.28 (Citation
Rules on Summary Procedure. omitted)

Lastly, petitioner maintains that it did have legal With regard to the period of prescription, it is now without
personality, since in a Petition for Certiorari, "persons question that it is two months for the offense charged
aggrieved x x x may file a verified petition"26 before the under City Ordinance 003-2000.
court.
The commencement of the prescription period is also B. Criminal Cases:
governed by statute. Article 91 of the Revised Penal
Code reads: (1) Violations of traffic laws, rules and regulations;

Art. 91. Computation of prescription of offenses. — The (2) Violations of the rental law;
period of prescription shall commence to run from the
day on which the crime is discovered by the offended (3) Violations of municipal or city ordinances
party, the authorities, or their agents, and shall be (Emphasis supplied)
interrupted by the filing of the complaint or information,
and shall commence to run again when such Section 11 of the Rules provides that:
proceedings terminate without the accused being
Sec. 11. How commenced. — The filing of criminal cases
convicted or acquitted, or are unjustifiably stopped for
falling within the scope of this Rule shall be either by
any reason not imputable to him.
complaint or by information: Provided, however, that in
The offense was committed on May 7, 2003 and was Metropolitan Manila and in Chartered Cities, such cases
discovered by the attendants of the petitioner on the shall be commenced only by information, except when
same day. These actions effectively commenced the the offense cannot be prosecuted de officio.
running of the prescription period.
The Local Government Code provides for the
The procedural rules that govern this case are the 1991 classification of cities. Section 451 reads:
Revised Rules on Summary Procedure.
SEC. 451. Cities, Classified. – A city may either be
SECTION 1. Scope – This rule shall govern the summary component or highly urbanized: Provided, however, that
procedure in the Metropolitan Trial Courts, the Municipal the criteria established in this Code shall not affect the
Trial Courts in Cities, the Municipal Trial Courts, and the classification and corporate status of existing cities.
Municipal Circuit Trial Courts in the following cases falling Independent component cities are those component
within their jurisdiction: cities whose charters prohibit their voters from voting for
provincial elective officials. Independent component cities
xxxx shall be independent of the province.
Cities in the Philippines that were created by law can Where paragraph (b) of the section does speak of
either be highly urbanized cities or component cities. An "offenses falling under the jurisdiction of the Municipal
independent component city has a charter that proscribes Trial Courts and Municipal Circuit Trial Courts," the
its voters from voting for provincial elective officials. It obvious reference is to Section 32(2) of B.P. No. 129,
stands that all cities as defined by Congress are vesting in such courts:
chartered cities. In cases as early as United States v.
Pascual Pacis,29 this Court recognized the validity of the (2) Exclusive original jurisdiction over all offenses
Baguio Incorporation Act or Act No. 1963 of 1909, punishable with imprisonment of not exceeding four
otherwise known as the charter of Baguio City. years and two months, or a fine of not more than four
thousand pesos, or both such fine and imprisonment,
As provided in the Revised Rules on Summary regardless of other imposable accessory or other
Procedure, only the filing of an Information tolls the penalties, including the civil liability arising from such
prescriptive period where the crime charged is involved in offenses or predicated thereon, irrespective of kind,
an ordinance. The respondent judge was correct when nature, value, or amount thereof; Provided, however,
he applied the rule in Zaldivia v. Reyes. That in offenses involving damage to property through
criminal negligence they shall have exclusive original
In Zaldivia v. Reyes, the violation of a municipal jurisdiction where the imposable fine does not exceed
ordinance in Rodriguez, Rizal also featured similar facts twenty thousand pesos.
and issues with the present case. In that case, the
offense was committed on May 11, 1990. The Complaint These offenses are not covered by the Rules on
was received on May 30, 1990, and the Information was Summary Procedure.
filed with the Metropolitan Trial Court of Rodriguez on
October 2, 1990. This Court ruled that: Under Section 9 of the Rules on Summary Procedure,
"the complaint or information shall be filed directly in
As it is clearly provided in the Rule on Summary court without need of a prior preliminary examination or
Procedure that among the offenses it covers are preliminary investigation." Both parties agree that this
violations of municipal or city ordinances, it should follow provision does not prevent the prosecutor from
that the charge against the petitioner, which is for conducting a preliminary investigation if he wants to.
violation of a municipal ordinance of Rodriguez, is However, the case shall be deemed commenced only
governed by that rule and not Section 1 of Rule 110. when it is filed in court, whether or not the prosecution
decides to conduct a preliminary investigation. This the prescription period. The recent People v.
means that the running of the prescriptive period shall be Pangilinan31 categorically stated that Zaldivia v. Reyes is
halted on the date the case is actually filed in court and not controlling as far as special laws are concerned.
not on any date before that. Pangilinan referred to other cases that upheld this
principle as well. However, the doctrine of Pangilinan
This interpretation is in consonance with the afore-quoted pertains to violations of special laws but not to
Act No. 3326 which says that the period of prescription ordinances.
shall be suspended "when proceedings are instituted
against the guilty party." The proceedings referred to in There is no distinction between the filing of the
Section 2 thereof are "judicial proceedings," contrary to Information contemplated in the Rules of Criminal
the submission of the Solicitor General that they include Procedure and in the Rules of Summary Procedure.
administrative proceedings. His contention is that we When the representatives of the petitioner filed the
must not distinguish as the law does not distinguish. As a Complaint before the Provincial Prosecutor of Baguio, the
matter of fact, it does. prescription period was running. It continued to run until
the filing of the Information. They had two months to file
At any rate, the Court feels that if there be a conflict the Information and institute the judicial proceedings by
between the Rule on Summary Procedure and Section 1 filing the Information with the Municipal Trial Court. The
of Rule 110 of the Rules on Criminal Procedure, the conduct of the preliminary investigation, the original
former should prevail as the special law. And if there be a charge of Robbery, and the subsequent finding of the
conflict between Act No. 3326 and Rule 110 of the Rules violation of the ordinance did not alter the period within
on Criminal Procedure, the latter must again yield which to file the Information. Respondents were correct in
because this Court, in the exercise of its rule-making arguing that the petitioner only had two months from the
power, is not allowed to "diminish, increase or modify discovery and commission of the offense before it
substantive rights" under Article VIII, Section 5(5) of the prescribed within which to file the Information with the
Constitution. Prescription in criminal cases is a Municipal Trial Court.
substantive right.30
Unfortunately, when the Office of the Prosecutor filed the
Jurisprudence exists showing that when the Complaint is Informations on October 5, 2003, the period had already
filed with the Office of the Prosecutor who then files the prescribed. Thus, respondent Judge Nestor Lidua, Sr. did
Information in court, this already has the effect of tolling
not err when he ordered the dismissal of the case against SEC. 12. Place of the commission of offense. - The
respondents. According to the Department of Justice – complaint or information is sufficient if it states that the
National Prosecutors Service Manual for Prosecutors, an crime charged was committed or some of the ingredients
Information is defined under Part I, Section 5 as: thereof occurred at some place within the jurisdiction of
the court, unless the particular place in which the crime
SEC. 5. Information. - An information is the accusation in was committed is an essential element of the crime, e.g.
writing charging a person with an offense, subscribed by in a prosecution for violation of the provision of the
the prosecutor, and filed with the court. The information Election Code which punishes the carrying of a deadly
need not be placed under oath by the prosecutor signing weapon in a "polling place," or if it is necessary to identify
the same. the offense charged, e.g., the domicile in the offense of
"violation of domicile."
The prosecutor must, however, certify under oath that –
Finally, as for the prescription period, the Manual
a) he has examined the complainant and his provides that:
witnesses;
SEC. 20. How Period of Prescription Computed and
b) there is reasonable ground to believe that a Interrupted. - For an offense penalized under the Revised
crime has been committed and that the accused is Penal Code, the period of prescription commences to run
probably guilty thereof; from the day on which the crime is discovered by the
offended party, the authorities, or their agents, and shall
c) the accused was informed of the complaint and be interrupted:
of the evidence submitted against him; and
a) by the filing of the complaint with the Office of
d) the accused was given an opportunity to submit the City/Provincial Prosecutor; or with the Office of
controverting evidence. the Ombudsman; or

As for the place of the filing of the Information, the b) by the filing of the complaint or information with
Manual also provides that: the court even if it is merely for purposes of
preliminary examination or investigation, or even if
 the court where the complaint or information is La Union, Mt. Province, Pangasinan, and the cities of
filed cannot try the case on its merits. Baguio, Dagupan, Laoag, and San Carlos.

However, for an offense covered by the Rules on The Regional Prosecutor for Region 1 or his/her duly
Summary Procedure, the period of prescription is assigned prosecutor was designated to file the
interrupted only by the filing of the complaint or Information within the two-month period provided for in
information in court. Act No. 3326, as amended.1âwphi1

xxxx The failure of the prosecutor to seasonably file the

Information is unfortunate as it resulted in the dismissal
For violation of a special law or ordinance, the period of of the case against the private respondents. It stands that
prescription shall commence to run from the day of the the doctrine of Zaldivia is applicable to ordinances and
commission of the violation, and if the same is not known their prescription period. It also upholds the necessity of
at the time, from the discovery and the institution of filing the Information in court in order to toll the period.
judicial proceedings for its investigation and punishment. Zaldivia also has this to say concerning the effects of its
The prescription shall be interrupted only by the filing of ruling:
the complaint or information in court and shall begin to
run again if the proceedings are dismissed for reasons The Court realizes that under the above interpretation, a
not constituting double jeopardy. (Emphasis crime may prescribe even if the complaint is filed
supplied).1âwphi1 seasonably with the prosecutor's office if, intentionally or
not, he delays the institution of the necessary judicial
Presidential Decree No. 127532 reorganized the proceedings until it is too late. However, that possibility
Department of Justice’s Prosecution Staff and should not justify a misreading of the applicable rules
established Regional State Prosecution Offices. These beyond their obvious intent as reasonably deduced from
Regional State Prosecution Offices were assigned their plain language.
centers for particular regions where the Informations will
be filed. Section 6 provides that the area of responsibility The remedy is not a distortion of the meaning of the rules
of the Region 1 Center located in San Fernando, La but a rewording thereof to prevent the problem here
Union includes Abra, Benguet, Ilocos Norte, Ilocos Sur, sought to be corrected.33
WHEREFORE the Petition is DENIED. Upon presentment for payment on 18 March 1993, the
checks were dishonored, either for insufficiency of funds
SO ORDERED. or by the closure of the account. Petitioner made formal
demands to pay the amounts of the checks upon Cawili
G.R. No. 167571             November 25, 2008 on 23 May 1995 and upon Tongson on 26 June 1995, but
to no avail.
LUIS PANAGUITON, JR., petitioner
vs. On 24 August 1995, petitioner filed a complaint against
DEPARTMENT OF JUSTICE, RAMON C. TONGSON Cawili and Tongson4 for violating Batas Pambansa Bilang
and RODRIGO G. CAWILI, respondents. 22 (B.P. Blg. 22)5 before the Quezon City Prosecutor's
Office. During the preliminary investigation, only Tongson
DECISION appeared and filed his counter-affidavit.6 Tongson
claimed that he had been unjustly included as party-
TINGA, J.:
respondent in the case since petitioner had lent money to
Cawili in the latter's personal capacity. Moreover, like
This is a Petition for Review1 of the resolutions of the
petitioner, he had lent various sums to Cawili and in
Court of Appeals dated 29 October 2004 and 21 March
appreciation of his services, he was offered to be an
2005 in CA G.R. SP No. 87119, which dismissed Luis
officer of Roma Oil Corporation. He averred that he was
Panaguiton, Jr.'s (petitioner's) petition for certiorari and
not Cawili's business associate; in fact, he himself had
his subsequent motion for reconsideration.2
filed several criminal cases against Cawili for violation of
The facts, as culled from the records, follow. B.P. Blg. 22. Tongson denied that he had issued the
bounced checks and pointed out that his signatures on
In 1992, Rodrigo Cawili (Cawili) borrowed various sums the said checks had been falsified.
of money amounting to P1,979,459.00 from petitioner.
On 8 January 1993, Cawili and his business associate, To counter these allegations, petitioner presented several
Ramon C. Tongson (Tongson), jointly issued in favor of documents showing Tongson's signatures, which were
petitioner three (3) checks in payment of the said loans. purportedly the same as the those appearing on the
Significantly, all three (3) checks bore the signatures of checks.7 He also showed a copy of an affidavit of
both Cawili and Tongson.
adverse claim wherein Tongson himself had claimed to checks were dishonored, or on 20 January 1993 and 18
be Cawili's business associate.8 March 1993. The filing of the complaint before the
Quezon City Prosecutor on 24 August 1995 did not
In a resolution dated 6 December 1995,9 City Prosecutor interrupt the running of the prescriptive period, as the law
III Eliodoro V. Lara found probable cause only against contemplates judicial, and not administrative
Cawili and dismissed the charges against Tongson. proceedings. Thus, considering that from 1993 to 1998,
Petitioner filed a partial appeal before the Department of more than four (4) years had already elapsed and no
Justice (DOJ) even while the case against Cawili was information had as yet been filed against Tongson, the
filed before the proper court. In a letter-resolution dated alleged violation of B.P. Blg. 22 imputed to him had
11 July 1997,10 after finding that it was possible for already prescribed.13 Moreover, ACP Sampaga stated
Tongson to co-sign the bounced checks and that he had that the order of the Chief State Prosecutor to refer the
deliberately altered his signature in the pleadings matter to the NBI could no longer be sanctioned under
submitted during the preliminary investigation, Chief Section 3, Rule 112 of the Rules of Criminal Procedure
State Prosecutor Jovencito R. Zuño directed the City because the initiative should come from petitioner himself
Prosecutor of Quezon City to conduct a reinvestigation of and not the investigating prosecutor.14 Finally, ACP
the case against Tongson and to refer the questioned Sampaga found that Tongson had no dealings with
signatures to the National Bureau of Investigation (NBI). petitioner.15

Tongson moved for the reconsideration of the resolution, Petitioner appealed to the DOJ. But the DOJ, through
but his motion was denied for lack of merit. Undersecretary Manuel A.J. Teehankee, dismissed the
same, stating that the offense had already prescribed
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet pursuant to Act No. 3326.16 Petitioner filed a motion for
S. Sampaga (ACP Sampaga) dismissed the reconsideration of the DOJ resolution. On 3 April
complaint against Tongson without referring the matter to 2003,17 the DOJ, this time through then Undersecretary
the NBI per the Chief State Prosecutor's resolution. In her Ma. Merceditas N. Gutierrez, ruled in his favor and
resolution,11 ACP Sampaga held that the case had declared that the offense had not prescribed and that the
already prescribed pursuant to Act No. 3326, as filing of the complaint with the prosecutor's office
amended,12 which provides that violations penalized by interrupted the running of the prescriptive period
B.P. Blg. 22 shall prescribe after four (4) years. In this citing Ingco v. Sandiganbayan.18 Thus, the Office of the
case, the four (4)-year period started on the date the
City Prosecutor of Quezon City was directed to file three verification and certification of non-forum shopping. The
(3) separate informations against Tongson for violation of Court of Appeals also noted that the 3 April 2003
B.P. Blg. 22.19 On 8 July 2003, the City Prosecutor's resolution of the DOJ attached to the petition is a mere
Office filed an information20 charging petitioner with three photocopy.26 Petitioner moved for the reconsideration of
(3) counts of violation of B.P. Blg. 22.21 the appellate court's resolution, attaching to said motion
an amended Verification/Certification of Non-Forum
However, in a resolution dated 9 August 2004,22 the DOJ, Shopping.27 Still, the Court of Appeals denied petitioner's
presumably acting on a motion for reconsideration filed motion, stating that subsequent compliance with the
by Tongson, ruled that the subject offense had already formal requirements would not per se warrant a
prescribed and ordered "the withdrawal of the three (3) reconsideration of its resolution. Besides, the Court of
informations for violation of B.P. Blg. 22" against Appeals added, the petition is patently without merit and
Tongson. In justifying its sudden turnabout, the DOJ the questions raised therein are too unsubstantial to
explained that Act No. 3326 applies to violations of require consideration.28
special acts that do not provide for a prescriptive period
for the offenses thereunder. Since B.P. Blg. 22, as a In the instant petition, petitioner claims that the Court of
special act, does not provide for the prescription of the Appeals committed grave error in dismissing his petition
offense it defines and punishes, Act No. 3326 applies to on technical grounds and in ruling that the petition before
it, and not Art. 90 of the Revised Penal Code which it was patently without merit and the questions are too
governs the prescription of offenses penalized unsubstantial to require consideration.
thereunder.23 The DOJ also cited the case of Zaldivia v.
Reyes, Jr.,24 wherein the Supreme Court ruled that the The DOJ, in its comment,29 states that the Court of
proceedings referred to in Act No. 3326, as amended, Appeals did not err in dismissing the petition for non-
are judicial proceedings, and not the one before the compliance with the Rules of Court. It also reiterates that
prosecutor's office. the filing of a complaint with the Office of the City
Prosecutor of Quezon City does not interrupt the running
Petitioner thus filed a petition for certiorari25 before the of the prescriptive period for violation of B.P. Blg. 22. It
Court of Appeals assailing the 9 August 2004 resolution argues that under B.P. Blg. 22, a special law which does
of the DOJ. The petition was dismissed by the Court of not provide for its own prescriptive period, offenses
Appeals in view of petitioner's failure to attach a proper
prescribe in four (4) years in accordance with Act No. ends of justice may be served,32 as in the instant case. In
3326. the case at bar, we find that by attaching the pertinent
verification to his motion for reconsideration, petitioner
Cawili and Tongson submitted their comment, arguing sufficiently complied with the verification requirement.
that the Court of Appeals did not err in dismissing the
petition for certiorari. They claim that the offense of Petitioner also submits that the Court of Appeals erred in
violation of B.P. Blg. 22 has already prescribed per Act dismissing the petition on the ground that there was
No. 3326. In addition, they claim that the long delay, failure to attach a certified true copy or duplicate original
attributable to petitioner and the State, violated their of the 3 April 2003 resolution of the DOJ. We agree. A
constitutional right to speedy disposition of cases.30 plain reading of the petition before the

The petition is meritorious. Court of Appeals shows that it seeks the annulment of
the DOJ resolution dated 9 August 2004,33 a certified true
First on the technical issues. copy of which was attached as Annex "A."34 Obviously,
the Court of Appeals committed a grievous mistake.
Petitioner submits that the verification attached to his
petition before the Court of Appeals substantially Now, on the substantive aspects.
complies with the rules, the verification being intended
simply to secure an assurance that the allegations in the Petitioner assails the DOJ's reliance on Zaldivia v.
pleading are true and correct and not a product of the Reyes,35 a case involving the violation of a municipal
imagination or a matter of speculation. He points out that ordinance, in declaring that the prescriptive period is
this Court has held in a number of cases that a deficiency tolled only upon filing of the information in court.
in the verification can be excused or dispensed with, the
defect being neither jurisdictional nor always fatal. 31 According to petitioner, what is applicable in this case
is Ingco v. Sandiganbayan,36 wherein this Court ruled that
Indeed, the verification is merely a formal requirement the filing of the complaint with the fiscal's office for
intended to secure an assurance that matters which are preliminary investigation suspends the running of the
alleged are true and correct–the court may simply order prescriptive period. Petitioner also notes that the Ingco
the correction of unverified pleadings or act on them and case similarly involved the violation of a special law,
waive strict compliance with the rules in order that the Republic Act (R.A.) No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, petitioner proceedings are dismissed for reasons not
notes.37 He argues that sustaining the DOJ's and the constituting jeopardy.
Court of Appeals' pronouncements would result in grave
injustice to him since the delays in the present case were We agree that Act. No. 3326 applies to offenses under
clearly beyond his control.38 B.P. Blg. 22.

There is no question that Act No. 3326, appropriately An offense under B.P. Blg. 22 merits the penalty of
entitled An Act to Establish Prescription for Violations of imprisonment of not less than thirty (30) days but not
Special Acts and Municipal Ordinances and to Provide more than one year or by a fine, hence, under Act No.
When Prescription Shall Begin, is the law applicable to 3326, a violation of B.P. Blg. 22 prescribes in four (4)
offenses under special laws which do not provide their years from the commission of the offense or, if the same
own prescriptive periods. The pertinent provisions read: be not known at the time, from the discovery thereof.

Section 1. Violations penalized by special acts Nevertheless, we cannot uphold the position that only
shall, unless otherwise provided in such acts, the filing of a case in court can toll the running of the
prescribe in accordance with the following rules: prescriptive period.
(a) x x x; (b) after four years for those punished by
imprisonment for more than one month, but less It must be pointed out that when Act No. 3326 was
than two years; (c) x x x passed on 4 December 1926, preliminary investigation of
criminal offenses was conducted by justices of the peace,
Sec. 2. Prescription shall begin to run from the day thus, the phraseology in the law, "institution of judicial
of the commission of the violation of the law, and if proceedings for its investigation and punishment,"39 and
the same be not known at the time, from the the prevailing rule at the time was that once a complaint
discovery thereof and the institution of judicial is filed with the justice of the peace for preliminary
proceedings for its investigation and punishment. investigation, the prescription of the offense is halted.40

The prescription shall be interrupted when The historical perspective on the application of Act No.
proceedings are instituted against the guilty 3326 is illuminating.41 Act No. 3226 was approved on 4
person, and shall begin to run again if the December 1926 at a time when the function of
conducting the preliminary investigation of criminal
offenses was vested in the justices of the peace. Thus, period is interrupted by the institution of proceedings for
the prevailing rule at the time, as shown in the cases preliminary investigation against the accused.
of U.S. v. Lazada42 and People v. Joson,43 is that the
prescription of the offense is tolled once a complaint is In the more recent case of Securities and Exchange
filed with the justice of the peace for preliminary Commission v. Interport Resources Corporation, et
investigation inasmuch as the filing of the complaint al.,51 the Court ruled that the nature and purpose of the
signifies the institution of the criminal proceedings investigation conducted by the Securities and Exchange
against the accused.44 These cases were followed by our Commission on violations of the Revised Securities
declaration in People v. Parao and Parao45 that the first Act,52 another special law, is equivalent to the preliminary
step taken in the investigation or examination of offenses investigation conducted by the DOJ in criminal cases,
partakes the nature of a judicial proceeding which and thus effectively interrupts the prescriptive period.
suspends the prescription of the offense.46 Subsequently,
in People v. Olarte,47 we held that the filing of the The following disquisition in the Interport
53
complaint in the Municipal Court, even if it be merely for Resources case  is instructive, thus:
purposes of preliminary examination or investigation,
should, and does, interrupt the period of prescription of While it may be observed that the term "judicial
the criminal responsibility, even if the court where the proceedings" in Sec. 2 of Act No. 3326 appears
complaint or information is filed cannot try the case on before "investigation and punishment" in the old
the merits. In addition, even if the court where the law, with the subsequent change in set-up
complaint or information is filed may only proceed to whereby the investigation of the charge for
investigate the case, its actuations already represent the purposes of prosecution has become the exclusive
initial step of the proceedings against the offender,48 and function of the executive branch, the term
hence, the prescriptive period should be interrupted. "proceedings" should now be understood either
executive or judicial in character: executive when it
In Ingco v. Sandiganbayan49 and Sanrio Company involves the investigation phase and judicial when
Limited v. Lim,50 which involved violations of the Anti- it refers to the trial and judgment stage. With this
Graft and Corrupt Practices Act (R.A. No. 3019) and the clarification, any kind of investigative proceeding
Intellectual Property Code (R.A. No. 8293), which are instituted against the guilty person which may
both special laws, the Court ruled that the prescriptive ultimately lead to his prosecution should be
sufficient to toll prescription.54
Indeed, to rule otherwise would deprive the injured party Petitioner 's filing of his complaint-affidavit before the
the right to obtain vindication on account of delays that Office of the City Prosecutor on 24 August 1995 signified
are not under his control. A clear example would be this the commencement of the proceedings for the
case, wherein petitioner filed his complaint-affidavit on 24 prosecution of the accused and thus effectively
August 1995, well within the four (4)-year prescriptive interrupted the prescriptive period for the offenses they
period. He likewise timely filed his appeals and his had been charged under B.P. Blg. 22. Moreover, since
motions for reconsideration on the dismissal of the there is a definite finding of probable cause, with the
charges against Tongson. He went through the proper debunking of the claim of prescription there is no longer
channels, within the prescribed periods. However, from any impediment to the filing of the information against
the time petitioner filed his complaint-affidavit with the petitioner.
Office of the City Prosecutor (24 August 1995) up to the
time the DOJ issued the assailed resolution, an WHEREFORE, the petition is GRANTED. The
aggregate period of nine (9) years had elapsed. Clearly, resolutions of the Court of Appeals dated 29 October
the delay was beyond petitioner's control. 2004 and 21 March 2005 are REVERSED and SET
ASIDE. The resolution of the Department of Justice dated
After all, he had already initiated the active prosecution of 9 August 2004 is also ANNULLED and SET ASIDE. The
the case as early as 24 August 1995, only to suffer Department of Justice is ORDERED to REFILE the
setbacks because of the DOJ's flip-flopping resolutions information against the petitioner.
and its misapplication of Act No. 3326. Aggrieved parties,
especially those who do not sleep on their rights and No costs.
actively pursue their causes, should not be allowed to
suffer unnecessarily further simply because of SO ORDERED.
circumstances beyond their control, like the accused's
delaying tactics or the delay and inefficiency of the G.R. No. 141931             December 4, 2000
investigating agencies.
ANICETO RECEBIDO, petitioner,
We rule and so hold that the offense has not yet vs.
prescribed. PEOPLE OF THE PHILIPPINES, respondent.

KAPUNAN, J.:
RESOLUTION Sale, NBI Document Examiner Antonio Magbojas, found
that the latter signature was falsified (Exhibits "L-1" to "L-
The antecedent facts are the following, to wit: 2").

On September 9, 1990, private complainant Caridad Thereafter, Caridad Dorol filed her complaint against
Dorol went to the house of her cousin, petitioner Aniceto petitioner Aniceto Recebido with the National Bureau of
Recebido, at San Isidro, Bacon, Sorsogon to redeem her Investigation (NBI), Legaspi City and its Questioned
property, an agricultural land with an area of 3,520 Documents Division conducted an examination in the
square meters located at San Isidro, Bacon, Sorsogon, original copy of the Deed of Sale in question allegedly
which Caridad Dorol mortgaged to petitioner sometime in signed by Caridad, particularly her signature affixed
April of 1985. Petitioner and Caridad Dorol did not thereon.
execute a document on the mortgage but Caridad Dorol
instead gave petitioner a copy of the Deed of Sale dated Mr. Magboja's report was approved by the Chief of the
June 16, 1973 (Exhibit "A") executed in her favor by her Questioned Documents Division, Arcadio Ramos, and
father, Juan Dorol. the Deputy Director of Technical Services, Manuel
Roura, both of the NBI.1
In said confrontation, petitioner refused to allow Caridad
Dorol to redeem her property on his claim that she had Thus, the Office of the Provincial Prosecutor of Sorsogon
sold her property to him in 1979. Caridad Dorol filed the information indicting petitioner for Falsification of
maintained and insisted that the transaction between Public Document with the Regional Trial Court, 5th
them involving her property was a mortgage. Judicial Region, Branch 51, Sorsogon, Sorsogon, reading
as follows:
Caridad Dorol verified from the Office of the Assessor in
Sorsogon that there exists on its file a Deed of Sale "That on or about the 13th day of August, 1979, in
dated August 13, 1979 (Exhibit "J"), allegedly executed the Municipality of Sorsogon, Province of
by Caridad Dorol in favor of petitioner and that the Sorsogon, Philippines, and within the jurisdiction
property was registered in the latter's name. After of this Honorable Court, the above-named
comparison of the specimen signatures of Caridad Dorol accused, being a private individual, did then and
in other documents (Exhibits "K" to "K-10") with that of there, willfully, unlawfully and feloniously, with
the signature of Caridad Dorol on the questioned Deed of intent to defraud, falsify and/or imitate the
 signature of one Caridad Dorol and/or cause it to ACCORDINGLY, accused ANECITO RECEBIDO
appear that said Caridad Dorol has signed her is sentenced to an indeterminate penalty of one
name on a Deed of Absolute Sale of Real Property (1) year to three (3) years and six (6) months of
in favor of the herein accused and Notarized as prision correccional as maximum and to pay a fine
Doc. No. 680; page No. 54; Boon No. XIV and of Three Thousand (P3,000.00) Pesos, with
Series of 1979 of the Registry of Notary Public subsidiary imprisonment.
Dominador S. Reyes, when in truth and in fact
accused well knew, that Caridad Dorol did not Accused is ordered to pay P5,000.00 damages
execute said document, to the damage and and to vacate the land in question owned by the
prejudice of the latter. offended party.

Contrary to law."2 SO ORDERED.4

Upon arraignment petitioner pleaded "not guilty." On appeal, the Court of Appeals affirmed with
modification the decision of the trial court, the
As narrated by the Court of Appeals, the petitioner dispositive portion of which reads:
contends that the land in question was mortgage to him
by Juan Dorol, the father of Caridad, on February 25, WHEREFORE, with the modification that the
1977 and was subsequently sold to him on August 13, award for damages is DELETED, is assailed
1983 although it was made to appear that the deed of judgment is AFFIRMED in all of her respects.
sale was executed on August 13, 1979. It was also on
the said date that Recebido gave Caridad the amount of SO ORDERED.5
P1,000.00 in addition to the P2,600.00 mortgage price
given to Juan Dorol which culminated into the execution The petitioner raises his case before this Court seeking
of the Deed of Sale signed by Caridad. the reversal of the assailed decision and resolution of the
Court of Appeals. Based on his petition, the following
After trial on the merits, the trial court rendered the issues are before this Court:
decision on December 2, 1996, convicting petitioner of
the crime charged and sentencing him as follows: 1. Whether or not the crime charged had already
prescribed at the time the information was filed?
 2. Whether or not the Court of Appeals committed Nonetheless, we hold that the crime charged has not
gave abuse of discretion in sustaining the prescribed. The petitioner is correct in stating that
conviction of the petitioner? whether or not the offense charged has already
prescribed when the information was filed would depend
3. Whether or not the Court of Appeals committed on the penalty imposable therefor, which in this case is
grievous error in affirming the decision of the trial "prision correccional in its medium and maximum periods
court for the petitioner to vacate the land in and a fine of not more than 5,000.00 pesos."9 Under the
question owned by the offended party? Revised Penal Code,10 said penalty is a correctional
penalty in the same way that the fine imposed is
We rule in the negative on the three issues. categorized as correctional. Both the penalty and fine
being correctional, the offense shall prescribe in TEN
On the first issue: While the defense of prescription of the years.11 
crime was raised only during the motion for
reconsideration of the decision of the Court of Appeals, The issue that the petitioner has missed, however, is the
there was no waiver of the defense. reckoning point of the prescriptive period.

Under the Rules of Court, the failure of the accused to The petitioner is of the impression that the ten-year
assert the ground of extinction of the offense, inter alia, in prescriptive period necessarily started at the time the
a motion to quash shall not be deemed a waiver of such crime was committed. This is inaccurate. Under Article 91
ground.The reason is that by prescription, the State or of the Revised Penal Code, the period of prescription
the People loses the right to prosecute the crime or to shall "commence to run from the day on which the crime
demand the service of the penalty imposed.  is discovered by the offended party, the authorities, or
their agents,……" In People v. Reyes,12 this Court has
Accordingly, prescription, although not invoked in the declared that registration in public registry is a notice to
trial, may, as in this case, be invoked on appeal.8 Hence, the whole world. The record is constructive notice of its
the failure to raise this defense in the motion to quash the contents as well as all interests, legal and equitable,
information does not give rise to the waiver of the included therein. All persons are charged with knowledge
petitioner-accused to raise the same anytime thereafter of what it contains.
including during appeal.
The prosecution has established that private complainant registered the deed of sale prior thereto. Even
Dorol did not sell the subject land to the petitioner- granting arguendo that the deed of sale was executed by
accused at anytime and that sometime in 1983 the the private complainant, delivered to the petitioner-
private complainant mortgaged the agricultural land to accused in August 13, 1983 and registered on the same
petitioner Recebido. It was only on September 9, 1990, day, the ten-year prescriptive period of the crime had not
when she went to petitioner to redeem the land that she yet elapsed at the time the information was filed in 1991.
came to know of the falsification committed by the The inevitable conclusion, therefore, is that the crime had
petitioner. not prescribed at the time of the filing of the information.

On the other hand, petitioner contends that the land in These are specious arguments. The petitioner based his
question was mortgaged to him by Juan Dorol, the father claim of possession alternatively by virtue of two
of private complainant, and was subsequently sold to him alternative titles: one, based on the forged deed of sale
on August 13, 1983. This Court notes that the private and, two, as mortgagee of the land. As already
offended party had no actual knowledge of the discussed, the deed of sale was forged and, hence, could
falsification prior to September 9, 1990. Meanwhile, not be a valid basis of possession. Neither could his
assuming arguendo that the version of the petitioner is status as mortgagee be the basis of possession since it
believable, the alleged sale could not have been is the mortgagor in a contract of mortgage who is entitled
registered before 1983, the year the alleged deed of sale to the possession of the property. We have taken note of
was executed by the private complainant. Considering the practice in the provinces that in giving a realty for a
the foregoing, it is logical and in consonance with human collateral, possession usually goes with it.18 Besides,
experience to infer that the crime committed was not even assuming that petitioner had a right to possess the
discovered, nor could have been discovered, by the subject land, his possession became unlawful when the
offended party before 1983. private complainant offered to redeem the property and
petitioner unjustly refused. Petitioner cannot profit from
Neither could constructive notice by registration of the the effects of his crime. The trial court, therefore, did not
forged deed of sale, which is favorable to the petitioner commit any error in ordering petitioner to vacate the
since the running of the prescriptive period of the crime subject property.
shall have to be reckoned earlier, have been done before
1983 as it is impossible for the petitioner to have
In view of the foregoing, this Court finds that the Court of The facts of this case are undisputed. The petitioner was
Appeals did not commit any reversible error in its indicted for simple seduction in Criminal Case No. 85-
Decision dated September 9, 1999 and its Resolution 816, at the Municipal Trial Court of Angeles City, Branch
dated February 15, 2000. 3.

ACCORDINGLY, is instant petition is DENIED for lack of During the trial of the case, Atty. Eduardo Pineda,
merit.1âwphi1.nêt counsel for petitioner, submitted the case for decision
without offering any evidence, due to the petitioner’s
SO ORDERED. constant absence at hearings.

On September 16, 1987, the petitioner was convicted of

the offense charged and was sentenced to serve a
penalty of two months and one day of arresto mayor.

On appeal, the Regional Trial Court, on October 24,

1988, affirmed in toto the decision of the Municipal Trial
G.R. No. 141718            January 21, 2005 Court.

BENJAMIN PANGAN y RIVERA, petitioner, On August 9, 1991, the case was called for promulgation
vs. of the decision in the court of origin. Despite due notice,
HON. LOURDES F. GATBALITE, as the Presiding counsel for the petitioner did not appear. Notice to
Judge, Regional Trial Court of Angeles City, Branch petitioner was returned unserved with the notation that he
56, and COL. JAMES D. LABORDO, as the City Jail no longer resided at the given address.
Warden of Angeles City, respondents.
As a consequence, he also failed to appear at the
DECISION scheduled promulgation. The court of origin issued an
order directing the recording of the decision in the
AZCUNA, J.:
criminal docket of the court and an order of arrest against
the petitioner.
Pursuant to the order of arrest, on January 20, 2000, the On January 31, 2000, respondent Judge rendered the
petitioner was apprehended and detained at the decision, which is the subject of this present appeal,
Mabalacat Detention Cell. On January 24, 2000, which pronounced:
petitioner filed a Petition for a Writ of Habeas Corpus at
the Regional Trial Court of Angeles City. He impleaded The Court cannot subscribe to the contention of the
as respondent the Acting Chief of Police of Mabalacat, petitioner that the penalty imposed on him in the decision
Pampanga. Petitioner contended that his arrest was adverted to above had already prescribed, hence, his
illegal and unjustified on the grounds that: detention is illegal for under Article 93 of the Revised
Penal Code:
(a) the straight penalty of two months and one day
of arresto mayor prescribes in five years under No. "The period of prescription of penalties shall
3, Article 93 [of the] Revised Penal Code, and commence to run from the date when the culprit
should evade the service of sentence, and it shall be
(b) having been able to continuously evade interrupted if the defendant should give himself up, be
service of sentence for almost nine years, his captured, should go to some foreign country with which
criminal liability has long been totally extinguished this Government has no extradition treaty, or should
under No. 6, Article 89 [of the] Revised Penal commit another crime before the expiration of the period
Code.4 of prescription.

After his transfer to the City Jail of Angeles City on The elements of prescription are:
January 25, 2000, petitioner filed an Amended Petition
with the Regional Trial Court, impleading herein 1. That the penalty is imposed by final judgment;
respondent Col. James D. Labordo, the Jail Warden of
Angeles City, as respondent.5 2. That convict evaded the service of the sentence
by escaping during the term of his sentence;
In response, the Jail Warden alleged that petitioner’s
detention was pursuant to the order of commitment 3. That the convict who had escaped from prison
(mittimus), issued by Marlon P. Roque, Clerk of Court III has not given himself up, or been captured, or
of the Municipal Trial Court of Angeles City, Branch 3, gone to a foreign country with which we have no
dated January 25, 2000.6 extradition treaty, or committed another crime;
 4. The penalty has prescribed, because of the exceeded it." (U.S. vs. Jayne, 24 Phil 90, 24 J.F. 94, Phil.
lapse of time from the date of the evasion of the Digest, Vol. 2, 1398).
service of the sentence by the convict.
WHEREFORE, for not being meritorious and well-
In this case, the essential element of prescription which is founded, the petition for a writ of habeas corpus is hereby
the evasion of the service of sentence is absent. denied.
Admittedly, the petitioner herein has not served the
penalty imposed on him in prison and that during the SO ORDERED.
service of the sentence, he escaped therefrom. Notably,
at the trial of Crim. Case No. 85-816 in the Municipal Trial Angeles City, January 31, 2000.7
Court, Branch III, Angeles City and on the date set for the
promulgation of the affirmed decision, the petitioner failed From the above quoted decision, petitioner filed the
to appear and remained at large.1a\^/phi1.net instant petition for review on a question purely of law and
raised the following issue:
"There was no evasion of the service of the sentence in
this case, because such evasion presupposes escaping HOW SHOULD THE PHRASE "SHALL COMMENCE TO
during the service of the sentence consisting in RUN FROM THE DATE WHEN THE CULPRIT SHOULD
deprivation of liberty." (Infante vs. Warden, 48 O.G. No. EVADE THE SERVICE OF SENTENCE" IN ARTICLE 93
122) (92 Phil. 310). OF THE REVISED PENAL CODE ON THE
COMPUTATION OF THE PRESCRIPTION OF
Corollarily, the detention of the petitioner in Angeles City PENALTIES BE CONSTRUED? PUT A LITTLE
Jail in compliance with the Order of Commitment (Exhibit DIFFERENTLY, WHEN DOES THE PRESCRIPTIVE
E) is not illegal for – PERIOD OF PENALTIES BEGIN TO RUN?

"A commitment in due form, based on a final judgment, Petitioner claims that:
convicting and sentencing the defendant in a criminal
case, is conclusive evidence of the legality of his xxx the period for the computation of penalties under
detention, unless it appears that the court which Article 93 of the Revised Penal Code begins to run from
pronounced the judgment was without jurisdiction or the moment the judgment of conviction becomes final
and the convict successfully evades, eludes, and dodges The dispute, however, is in the construction of the
arrest for him to serve sentence.9 phrase "should evade the service of sentence." When
does the period of prescription of penalties begin to run?
Petitioner supports his claim in the following manner: The Infante ruling construes this to mean that the convict
must escape from jail "because such evasion
The Decision subject of this appeal, which was based on presupposes escaping during the service of the sentence
the 1952 ruling rendered in Infante vs. Warden, 48 O.G. consisting in deprivation of liberty."
No. 122, 92 Phil. 310, is, petitioner most respectfully
submits, not good case law. It imposes upon the convict Petitioner, with due respect, disagrees because if that
a condition not stated in the law. It is contrary to the spirit, were the intention of the law, then the phrase "should
nature or essence of prescription of penalties, creates an evade the service of sentence" in Article 93 would have
ambiguity in the law and opens the law to abuse by read: "should escape during the service of the sentence
government. consisting in deprivation of liberty." The legislature could
have very easily written Article 93 to read this way –
THE INFANTE RULING IMPOSES A
CONDITION NOT STATED IN THE LAW. "The period of prescription of penalties shall commence
to run from the date when the culprit should escape
It appears that the Infante ruling imposes that, as an during the service of the sentence consisting in
essential element, the convict must serve at least a few deprivation of liberty, and it shall be interrupted if the
seconds, minutes, days, weeks or years of his jail defendant should give himself up, be captured, should go
sentence and then escapes before the computation of to some foreign country with which this Government has
prescription of penalties begins to run. This, petitioner no extradition treaty, or should commit another crime
respectfully submits is not a condition stated in Article 93, before the expiration of the period of prescription."
which states that, the prescription of penalties "shall
commence to run from the date when the culprit should
evade the service of sentence."

There is no dispute that the duty of government to

compel the service of sentence sets in when the But they did not.
judgment of conviction becomes final.
The legislature wrote "should evade the service of The 5-year prescriptive period of his arresto
sentence" to cover or include convicts like him who, mayor penalty also began to run on that day considering
although convicted by final judgment, were never that no relief was taken therefrom.
arrested or apprehended by government for the
service of their sentence. Since petitioner never gave himself up [n]or was [he],
until January 20, 2000, ever captured, for the service of
With all the powers of government at its disposal, his sentence nor did he flee to some foreign country with
petitioner was able to successfully evade service of his 2 which [our] government has no extradition treaty, that 5-
months and 1 day jail sentence for at least nine (9) years, year prescriptive period of his penalty ran
from August 9, 1991 to January 20, 2000. This is continuously from August 9, 1991 when his judgment
approximately 3 years and 5 months longer than the 5- of conviction was promulgated in absentia and was
year prescriptive period of the penalty imposed on him. never interrupted.

That, as the respondent RTC Judge noted, petitioner did For reasons known only to it, however, government failed
not attend the trial at the Municipal Trial Court and the or neglected, for almost nine (9) years, to arrest petitioner
promulgation of his judgment of conviction in August 9, for the service of his arresto mayor sentence [which]
1991 is of no moment. His bond for provisional release should not be taken against petitioner. He was able to
was surely cancelled and an order of arrest was surely successfully evade service of his sentence for a period
issued against petitioner. The undisputed fact is that on longer than the 5-year prescriptive period of his penalty
August 9, 1991 the judgment of conviction was and, as such, is entitled to total extinction of his criminal
promulgated in absentia and an order for petitioner’s liability.
arrest was issued by the Municipal Trial Court of Angeles
City, Branch III. To say, as was said in Infante, that the prescriptive
period of the penalty never began to run in favor of
The duty of government, therefore, to arrest petitioner petitioner because he never escaped from jail during the
and compel him to serve his sentence began on August service of his sentence imposes a condition not written in
9, 1991. the law. It also violates the basic principle that the
criminal statutes are construed liberally in favor of the
accused and/or convict and is contrary to the spirit
behind or essence of statutes of limitations [and] and prescription were to be applied, its basis would have
prescription, in criminal cases.10 to be the evasion of the unserved sentence, and
computation could not have started earlier than the date
The Regional Trial Court based its decision on the case of the order for the prisoner's rearrest.13
of Infante v. Warden11 . In said case, Infante, the
petitioner, was convicted of murder and was sentenced A perusal of the facts in Infante v. Warden reveals that it
to seventeen years, four months and one day is not on all fours with the present case. In Infante, the
of reclusion temporal. After serving fifteen years, seven convict was on conditional pardon when he was re-
months and eleven days, he was granted a conditional arrested. Hence, he had started serving sentence but the
pardon. The condition was that "he shall not again violate State released him.
any of the penal laws of the Philippines." Ten years after
his release on conditional pardon, Infante was found In the present case, the convict evaded service of
guilty by a Municipal Court for driving without a license. sentence from the start, and was arrested eight years
Infante was immediately ordered rearrested for breach of later.
the condition of his pardon. One of the issues raised by
Infante in his petition, The RTC decision, however, must stand, since it is in
accord with applicable decisions of this Court. The issue
xxx was that the remitted penalty for which the petitioner raised by petitioner is not novel. Article 93 of the Revised
had been recommitted to jail – one year and 11 days – Penal Code14 has been interpreted several times by the
had prescribed. xxx 12 Court.

The Court disagreed and reasoned out thus: The case of Tanega v. Masakayan15 falls squarely within
the issues of the present case. In that case, petitioner
The contention is not well taken. According to article 93 Adelaida Tanega failed to appear on the day of the
of the Revised Penal Code the period of prescription of execution of her sentence.1awphi1.nét On the same day,
penalties commences to run from the date when the respondent judge issued a warrant for her arrest. She
culprit should evade the service of his sentence. It is was never arrested. More than a year later, petitioner
evident from this provision that evasion of the sentence is through counsel moved to quash the warrant of arrest, on
an essential element of prescription. There has been no the ground that the penalty had prescribed. Petitioner
such evasion in this case. Even if there had been one claimed that she was convicted for a light offense and
since light offenses prescribe in one year, her penalty entry, by breaking doors, windows, gates, walls, roofs, or
had already prescribed. The Court disagreed, thus: floors, or by using picklocks, false keys, disguise, deceit,
violence or intimidation, or through connivance with other
xxx The period of prescription of penalties — the convicts or employees of the penal institution, . . ."
succeeding Article 93 provides — "shall commence to Indeed, evasion of sentence is but another expression of
run from the date when the culprit should evade the the term "jail breaking."
service of his sentence". What then is the concept of
evasion of service of sentence? Article 157 of the xxx
Revised Penal Code furnishes the ready answer. Says
Article 157: We, therefore, rule that for prescription of penalty of
imprisonment imposed by final sentence to commence to
"ART. 157. Evasion of service of sentence. — The run, the culprit should escape during the term of such
penalty of prision correccional in its medium and imprisonment.
maximum periods shall be imposed upon any convict
who shall evade service of his sentence by escaping Adverting to the facts, we have here the case of a convict
during the term of his imprisonment by reason of final who — sentenced to imprisonment by final judgment —
judgment. xxx" was thereafter never placed in confinement. Prescription
of penalty, then, does not run in her favor.
Elements of evasion of service of sentence are: (1) the
offender is a convict by final judgment; (2) he "is serving In Del Castillo v. Torrecampo 17 , the Court cited and
his sentence which consists in deprivation of liberty"; and reiterated Tanega. Petitioner, Del Castillo, was charged
(3) he evades service of sentence by escaping during the for violation of Section 178 (nn) of the 1978 Election
term of his sentence. This must be so. For, by the Code. The trial court found Del Castillo guilty beyond
express terms of the statute, a convict evades "service of reasonable doubt and sentenced him to suffer an
his sentence" by "escaping during the term of his indeterminate sentence of imprisonment of 1 year as
imprisonment by reason of final judgment." That escape minimum to 3 years as maximum. On appeal the Court of
should take place while serving sentence, is emphasized Appeals affirmed the decision of the trial court in toto.
by the provisions of the second sentence of Article 157 During the execution of judgment on October 14, 1987,
which provides for a higher penalty if such "evasion or petitioner was not present. The presiding Judge issued
escape shall have taken place by means of unlawful an order of arrest and the confiscation of his bond.
Petitioner was never apprehended. Ten years later, convicted by final judgment by escaping during the term
petitioner filed a motion to quash the warrant of arrest on of his sentence.
the ground that the penalty imposed upon him had
already prescribed. The motion was denied by the trial As correctly pointed out by the Solicitor General,
court. Del Castillo, on a petition for certiorari to the Court "escape" in legal parlance and for purposes of Articles 93
of Appeals, questioned the denial by the trial court. The and 157 of the RPC means unlawful departure of
Court of Appeals dismissed the petition for lack of merit. prisoner from the limits of his custody. Clearly, one who
Upon denial of his Motion for Reconsideration, Del has not been committed to prison cannot be said to have
Castillo raised the matter to this Court. The Court escaped therefrom.
decided against Del Castillo and after quoting the ratio
decidendi of the Court of Appeals in full, it ratiocinated, In the instant case, petitioner was never brought to
thus: prison. In fact, even before the execution of the judgment
for his conviction, he was already in hiding. Now
The foregoing conclusion of the Court of Appeals is petitioner begs for the compassion of the Court because
consistent with the ruling of this Court in Tanega vs. he has ceased to live a life of peace and tranquility after
Masakayan, et al., where we declared that, for he failed to appear in court for the execution of his
prescription of penalty imposed by final sentence to sentence. But it was petitioner who chose to become a
commence to run, the culprit should escape during the fugitive. The Court accords compassion only to those
term of such imprisonment. who are deserving. Petitioner's guilt was proven beyond
reasonable doubt but he refused to answer for the wrong
The Court is unable to find and, in fact, does not perceive he committed. He is therefore not to be rewarded
any compelling reason to deviate from our earlier therefor.
pronouncement clearly exemplified in the Tanega case.
The assailed decision of the Court of Appeals is based
Article 93 of the Revised Penal Code provides when the on settled jurisprudence and applicable laws. It did not
prescription of penalties shall commence to run. Under engage in judicial legislation but correctly interpreted the
said provision, it shall commence to run from the date the pertinent laws. Because petitioner was never placed in
felon evades the service of his sentence. Pursuant to confinement, prescription never started to run in his
Article 157 of the same Code, evasion of service of favor.18
sentence can be committed only by those who have been
Consistent with the two cases cited above, this Court
pronounces that the prescription of penalties found in
Article 93 of the Revised Penal Code, applies only to
those who are convicted by final judgment and are
serving sentence which consists in deprivation of liberty. G.R. No. 139033           December 18, 2002
The period for prescription of penalties begins only when
the convict evades service of sentence by escaping JOVENDO DEL CASTILLO, petitioner,
during the term of his sentence. Since petitioner never vs.
suffered deprivation of liberty before his arrest on HON. ROSARIO TORRECAMPO, Presiding Judge,
January 20, 2000 and as a consequence never evaded RTC of Camarines Sur, Branch 33 and
sentence by escaping during the term of his service, the PEOPLE OF THE PHILIPPINES, respondents.
period for prescription never began.
DECISION
Petitioner, however, has by this time fully served his
CORONA, J.:
sentence of two months and one day of arresto
mayor and should forthwith be released unless he is
The instant petition is one for the review, by way of
being detained for another offense or charge.
appeal by certiorari, of the Decision1 of the Court of
Appeals dated November 20, 1998, and of the Resolution
WHEREFORE, the decision of the Regional Trial Court of
dated June 14, 1999 denying the motion for
Angeles City, Branch 56 is AFFIRMED, but petitioner is
reconsideration thereof.
ordered released effective immediately for having fully
served his sentence unless he is detained for another
Petitioner was charged on March 8, 1983 with violation of
offense or charge.
Section 178 (nn)2 of the 1978 Election Code in Criminal
Case No. F-1447 before Branch 33, Regional Trial Court,
No costs.
Camarines Sur. The Information alleged:
SO ORDERED.
That on May 17, 1982, (Barangay Election Day), at
around 8:15 P.M. in Barangay Ombao, Municipality of
Bula, Province of Camarines Sur, Philippines, and within
the jurisdiction of this Honorable Court, the above-named During the execution of judgment, petitioner failed to
accused did, then and there unlawfully conducted himself appear which prompted the presiding judge to issue an
in a disorderly manner, by striking the electric bulb and order of arrest of petitioner and the confiscation of his
two (2) kerosene petromax lamps lighting the room bond. However, petitioner was never apprehended. He
where voting center no. 24 is located, during the counting remained at large.
of the votes in said voting center plunging the room in
complete darkness, thereby interrupting and disrupting Ten years later, on October 24, 1997, petitioner filed
the proceedings of the Board of Election Tellers.3 before the trial court a motion to quash the warrant
issued for his arrest on the ground of prescription of the
On arraignment, petitioner pleaded not guilty. Thereafter, penalty imposed upon him. However, it was denied. His
trial on the merits ensued. motion for reconsideration thereof was likewise denied.

On January 14, 1985, the trial court rendered judgment Dissatisfied, petitioner filed with the Court of Appeals a
and declared petitioner guilty beyond reasonable doubt of Petition for Certiorari assailing the orders of the trial court
violating Section 178 (nn) of PD 1296, otherwise known denying both his motion to quash the warrant of arrest
as the 1978 Election Code, as amended, and sentenced and motion for reconsideration.
petitioner to suffer the indeterminate penalty of
imprisonment of 1 year as minimum to 3 years as On November 20, 1998, the Court of Appeals rendered
maximum. its now assailed decision dismissing the petition for lack
of merit.
Aggrieved, petitioner appealed his conviction to the Court
of Appeals which eventually affirmed the decision of the Following the denial of his motion for reconsideration, the
trial court in toto. Said decision became final and instant petition was filed before us.
executory. Thus, the execution of judgment was
scheduled on October 14, 1987. Petitioner asserts that the Court of Appeals gravely erred
in holding that the penalty imposed upon petitioner has
On October 12, 1987, an urgent motion to reset the not prescribed. Petitioner maintains that Article 93 of the
execution of judgment was submitted by petitioner Revised Penal Code provides that the period of
through his counsel. But it was denied for lack of merit. prescription shall commence to run from the date when
the culprit should evade the service of his sentence. The
Court of Appeals, in its interpretation of the said "And Article 93 of the Revised Penal Code, provides as
provision, engaged in judicial legislation when it added follows:
the phrase "by escaping during the term of the sentence"
thereto, so petitioner claims. ‘Computation of the prescription of penalties – The period
of prescription of penalties shall commence to run from
Going over the merits of the petition, the Court finds that the date when the culprit should evade the service of his
the Court of Appeals did not err in dismissing the petition sentence, and it shall be interrupted if the defendant
for certiorari. should give himself up, be captured, should go to some
foreign country with which his Government has no
The threshold issue in the instant case is the extradition treaty, or should commit another crime before
interpretation of Article 93 of the Revised Penal Code in the expiration of the period of prescription.’
relation to Article 157 of the same Code.
"The penalty imposed upon the petitioner is one
In dismissing the petition, the Court of Appeals ruled: (1) year of imprisonment as minimum to three (3)
years of imprisonment as maximum.
"Article 92 of the Revised Penal Code provides as
follows: "The law under which the petitioner was convicted
is a special law, the 1978 Election Code. This law
‘When and how penalties prescribe – The penalties does not provide for the prescription of penalties.
imposed by the final sentence prescribed as follows: This being the case, We have to apply the
provision of the Revised Penal Code which allows
1. Death and reclusion perpetua, in twenty years; the application of said code in suppletory
character when it provides that:
2. Other afflictive penalties, in fifteen years;
‘Offenses which are or in the future may be
3. Correctional penalties, in ten years; with the
punishable under special laws are not subject to
exception of the penalty of arresto mayor, which
the provision of this code. This code shall be
prescribes in five years;
supplementary to such laws, unless the latter
should specially provide the contrary.’
4. Light penalties, in one year.’
"The penalty imposed upon the petitioner is a which we have no extradition treaty or
correctional penalty under Article 25 in relation to committed another crime.
Article 27 of the Revised Penal Code. Being a
correctional penalty it prescribed in ten (10) years. 4. That the penalty has prescribed, because
of the lapse of time form the date of the
"The petitioner was convicted by a final judgment evasion of the service of the sentence by
on June 14, 1986. Such judgment would have the convict.’
been executed on October 14, 1986 but the
accused did not appear for such proceeding. And (p. 93, Revised Penal Code by L. Reyes 93
he has never been apprehended. ed.)

"The contention of the petitioner is that said "From the foregoing elements, it is clear that the
judgment prescribed on October 24, 1996. penalty imposed has not prescribed because the
circumstances of the case at bench failed to
"The issue here is whether or not the penalty satisfy the second element, to wit – ‘That the
imposed upon the petitioner has prescribed. convict evaded the service of the sentence by
escaping during the service of his sentence.’ As a
"The elements in order that the penalty imposed matter of fact, the petitioner never served a single
has prescribed are as follows: minute of his sentence.

‘1. That the penalty is imposed by final The foregoing conclusion of the Court of Appeals is
sentence. consistent with the ruling of this Court in Tanega vs.
Masakayan, et. al.,4 where we declared that, for
2. That the convict evaded the service of prescription of penalty imposed by final sentence to
the sentence by escaping during the term of commence to run, the culprit should escape during the
his sentence. term of such imprisonment.

3. That the convict who escaped from The Court is unable to find and, in fact, does not perceive
prison has not given himself up, or been any compelling reason to deviate from our earlier
captured, or gone to a foreign country with pronouncement clearly exemplified in the Tanega case.
Article 93 of the Revised Penal Code provides when the The assailed decision of the Court of Appeals is based
prescription of penalties shall commence to run. Under on settled jurisprudence and applicable laws. It did not
said provision, it shall commence to run from the date engage in judicial legislation but correctly interpreted the
the felon evades the service of his sentence. pertinent laws. Because petitioner was never placed in
confinement, prescription never started to run in his
Pursuant to Article 157 of the same Code, evasion of favor.
service of sentence can be committed ONLY by those
who have been convicted by final judgment by escaping WHEREFORE, for lack of merit, the petition is hereby
during the term of his sentence. DENIED.

As correctly pointed out by the Solicitor General, SO ORDERED.

"escape" in legal parlance and for purposes of Articles 93
and 157 of the RPC means unlawful departure of G.R. No. 206666               January 21, 2015
prisoner from the limits of his custody.
ATTY. ALICIA RISOS-VIDAL, Petitioner,
Clearly, one who has not been committed to prison ALFREDO S. LIM Petitioner-Intervenor,
cannot be said to have escaped therefrom. vs.
COMMISSION ON ELECTIONS and JOSEPH
In the instant case, petitioner was never brought to EJERCITO ESTRADA, Respondents.
prison. In fact, even before the execution of the judgment
for his conviction, he was already in hiding. Now DECISION
petitioner begs for the compassion of the Court because
he has ceased to live a life of peace and tranquility after LEONARDO-DE CASTRO, J.:
he failed to appear in court for the execution of his
sentence. But it was petitioner who chose to become a The Facts
fugitive. The Court accords compassion only to those
The salient facts of the case are as follows:
who are deserving. Petitioner’s guilt was proven beyond
reasonable doubt but he refused to answer for the wrong
On September 12, 2007, the Sandiganbayan convicted
he committed. He is therefore not to be rewarded
former President Estrada, a former President of the
therefor.
Republic of the Philippines, for the crime of plunder in The period within which accused Former President
Criminal Case No. 26558, entitled "People of the Joseph Ejercito Estrada has been under detention shall
Philippines v. Joseph Ejercito Estrada, et al." The be credited to him in full as long as he agrees voluntarily
dispositive part of the graft court’s decision reads: in writing to abide by the same disciplinary rules imposed
upon convicted prisoners.
WHEREFORE, in view of all the foregoing, judgment is
hereby rendered in Criminal Case No. 26558 finding the Moreover, in accordance with Section 2 of Republic Act
accused, Former President Joseph Ejercito Estrada, No. 7080, as amended by Republic Act No. 7659, the
GUILTY beyond reasonable doubt of the crime of Court hereby declares the forfeiture in favor of the
PLUNDER, defined in and penalized by Republic Act No. government of the following:
7080, as amended. On the other hand, for failure of the
prosecution to prove and establish their guilt beyond (1) The total amount of Five Hundred Forty[-]Two
reasonable doubt, the Court finds the accused Jose Million Seven Hundred Ninety[-]One Thousand
"Jinggoy" Estrada and Atty. Edward S. Serapio NOT Pesos (₱545,291,000.00), with interest and
GUILTY of the crime of plunder, and accordingly, the income earned, inclusive of the amount of Two
Court hereby orders their ACQUITTAL. Hundred Million Pesos (₱200,000,000.00),
deposited in the name and account of the Erap
The penalty imposable for the crime of plunder under Muslim Youth Foundation.
Republic Act No. 7080, as amended by Republic Act No.
7659, is Reclusion Perpetua to Death. There being no (2) The amount of One Hundred Eighty[-]Nine
aggravating or mitigating circumstances, however, the Million Pesos (₱189,000,000.00), inclusive of
lesser penalty shall be applied in accordance with Article interests and income earned, deposited in the
63 of the Revised Penal Code. Accordingly, the accused Jose Velarde account.
Former President Joseph Ejercito Estrada is hereby
sentenced to suffer the penalty of Reclusion Perpetua (3) The real property consisting of a house and lot
and the accessory penalties of civil interdiction during the dubbed as "Boracay Mansion" located at #100
period of sentence and perpetual absolute 11th Street, New Manila, Quezon City.
disqualification.
The cash bonds posted by accused Jose "Jinggoy"
Estrada and Atty. Edward S. Serapio are hereby ordered
cancelled and released to the said accused or their duly IN VIEW HEREOF and pursuant to the authority
authorized representatives upon presentation of the conferred upon me by the Constitution, I hereby grant
original receipt evidencing payment thereof and subject executive clemency to JOSEPH EJERCITO ESTRADA,
to the usual accounting and auditing procedures. convicted by the Sandiganbayan of Plunder and imposed
Likewise, the hold-departure orders issued against the a penalty of Reclusion Perpetua. He is hereby restored to
said accused are hereby recalled and declared functus his civil and political rights.
oficio.4
The forfeitures imposed by the Sandiganbayan remain in
On October 25, 2007, however, former President Gloria force and in full, including all writs and processes issued
Macapagal Arroyo (former President Arroyo) extended by the Sandiganbayan in pursuance hereof, except for
executive clemency, by way of pardon, to former the bank account(s) he owned before his tenure as
President Estrada. The full text of said pardon states: President.

MALACAÑAN PALACE Upon acceptance of this pardon by JOSEPH EJERCITO

MANILA ESTRADA, this pardon shall take effect.

By the President of the Philippines Given under my hand at the City of Manila, this 25th Day
of October, in the year of Our Lord, two thousand and
PARDON seven.

WHEREAS, this Administration has a policy of releasing Gloria M. Arroyo (sgd.)

inmates who have reached the age of seventy (70),
By the President:
WHEREAS, Joseph Ejercito Estrada has been under
detention for six and a half years, IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5
WHEREAS, Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or On October 26, 2007, at 3:35 p.m., former President
office, Estrada "received and accepted"6 the pardon by affixing
his signature beside his handwritten notation thereon.
On November 30, 2009, former President Estrada filed a certiorari, which was docketed as G.R. No. 191988,
Certificate of Candidacy7 for the position of President. entitled "Atty. Evilio C. Pormento v. Joseph ‘ERAP’
During that time, his candidacy earned three oppositions Ejercito Estrada and Commission on Elections." But in a
in the COMELEC: (1) SPA No. 09-024 (DC), a "Petition Resolution9 dated August 31, 2010, the Court dismissed
to Deny Due Course and Cancel Certificate of the aforementioned petition on the ground of mootness
Candidacy" filed by Rev. Elly Velez B. Lao Pamatong, considering that former President Estrada lost his
ESQ; (2) SPA No. 09-028 (DC), a petition for presidential bid.
"Disqualification as Presidential Candidate" filed by Evilio
C. Pormento (Pormento); and (3) SPA No. 09-104 (DC), On October 2, 2012, former President Estrada once more
a "Petition to Disqualify Estrada Ejercito, Joseph M.from ventured into the political arena, and filed a Certificate of
Running as President due to Constitutional Candidacy,10 this time vying for a local elective post, that
Disqualification and Creating Confusion to the Prejudice of the Mayor of the City of Manila.
of Estrada, Mary Lou B" filed by Mary Lou Estrada. In
separate Resolutions8 dated January 20, 2010 by the On January 24, 2013, Risos-Vidal, the petitioner in this
COMELEC, Second Division, however, all three petitions case, filed a Petition for Disqualification against former
were effectively dismissed on the uniform grounds that (i) President Estrada before the COMELEC. The petition
the Constitutional proscription on reelection applies to a was docketed as SPA No. 13-211 (DC). Risos Vidal
sitting president; and (ii) the pardon granted to former anchored her petition on the theory that "[Former
President Estrada by former President Arroyo restored President Estrada] is Disqualified to Run for Public Office
the former’s right to vote and be voted for a public office. because of his Conviction for Plunder by the
The subsequent motions for reconsideration thereto were Sandiganbayan in Criminal Case No. 26558 entitled
denied by the COMELEC En banc. ‘People of the Philippines vs. Joseph Ejercito Estrada’
Sentencing Him to Suffer the Penalty of Reclusion
After the conduct of the May 10, 2010 synchronized Perpetuawith Perpetual Absolute Disqualification."11 She
elections, however, former President Estrada only relied on Section 40 of the Local Government Code
managed to garner the second highest number of votes. (LGC), in relation to Section 12 of the Omnibus Election
Code (OEC), which state respectively, that:
Of the three petitioners above-mentioned, only Pormento
sought recourse to this Court and filed a petition for Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons Section 12. Disqualifications. - Any person who has been
are disqualified from running for any elective local declared by competent authority insane or incompetent,
position: or has been sentenced by final judgmentfor subversion,
insurrection, rebellion, or for any offense for which he has
(a) Those sentenced by final judgment for an been sentenced to a penalty of more than eighteen
offense involving moral turpitude or for an offense months or for a crime involving moral turpitude, shall be
punishable by one (1) year or more of disqualified to be a candidate and to hold any public
imprisonment, within two (2) years after serving office, unless he has been given plenary pardon or
sentence; (b) Those removed from office as a granted amnesty. (Emphases supplied.)
result of an administrative case;
In a Resolution dated April 1, 2013,the COMELEC,
(c) Those convicted by final judgment for violating Second Division, dismissed the petition for
the oath of allegiance to the Republic; disqualification, the fallo of which reads:

(d) Those with dual citizenship; WHEREFORE, premises considered, the instant petition
is hereby DISMISSED for utter lack of merit.12
(e) Fugitives from justice in criminal or nonpolitical
cases here or abroad; The COMELEC, Second Division, opined that "[h]aving
taken judicial cognizance of the consolidated resolution
(f) Permanent residents in a foreign country or for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and
those who have acquired the right to reside the 10 May 2010 En Banc resolution affirming it, this
abroad and continue to avail of the same right Commission will not be labor the controversy further.
after the effectivity of this Code; and Moreso, [Risos-Vidal] failed to present cogent proof
sufficient to reverse the standing pronouncement of this
(g) The insane or feeble minded. (Emphasis Commission declaring categorically that [former
supplied.) President Estrada’s] right to seek public office has been
effectively restored by the pardon vested upon him by
Sec. 12, Omnibus Election Code:
former President Gloria M. Arroyo. Since this
Commission has already spoken, it will no longer engage
in disquisitions of a settled matter lest indulged in DISMISSING THE PETITION FOR
wastage of government resources."13 DISQUALIFICATION ON THE GROUND THAT
THE CASE INVOLVES THE SAME OR SIMILAR
The subsequent motion for reconsideration filed by ISSUES IT ALREADY RESOLVED IN THE
Risos-Vidal was denied in a Resolution dated April 23, CASES OF "PORMENTO VS. ESTRADA", SPA
2013. NO. 09-028 (DC) AND IN "RE: PETITION TO
DISQUALIFY ESTRADA EJERCITO, JOSEPH M.
On April 30, 2013, Risos-Vidal invoked the Court’s FROM RUNNING AS PRESIDENT, ETC.," SPA
jurisdiction by filing the present petition. She presented NO. 09-104 (DC);
five issues for the Court’s resolution, to wit:
IV. RESPONDENT COMELEC COMMITTED
I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
TO LACK OR EXCESS OF JURISDICTION IN NOT RULING THAT RESPONDENT ESTRADA’S
HOLDING THAT RESPONDENT ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT OF
PARDON WAS NOT CONDITIONAL; SUFFRAGE NOR REMITTED HIS PERPETUAL
ABSOLUTE DISQUALIFICATION FROM
II. RESPONDENT COMELEC COMMITTED SEEKING PUBLIC OFFICE; and
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN V. RESPONDENT COMELEC COMMITTED
NOT FINDING THAT RESPONDENT ESTRADA GRAVE ABUSE OF DISCRETION AMOUNTING
IS DISQUALIFIED TO RUN AS MAYOR OF TO LACK OR EXCESS OF JURISDICTION IN
MANILA UNDER SEC. 40 OF THE LOCAL NOT HAVING EXERCISED ITS POWER TO
GOVERNMENTCODE OF 1991 FOR HAVING MOTU PROPRIO DISQUALIFY RESPONDENT
BEEN CONVICTED OF PLUNDER, AN ESTRADA IN THE FACE OF HIS PATENT
OFFENSE INVOLVING MORAL TURPITUDE; DISQUALIFICATION TO RUN FOR PUBLIC
OFFICE BECAUSE OF HIS PERPETUAL AND
III. RESPONDENT COMELEC COMMITTED ABSOLUTE DISQUALIFICATION TO SEEK
GRAVE ABUSE OF DISCRETION AMOUNTING PUBLIC OFFICE AND TO VOTE RESULTING
TO LACK OR EXCESS OF JURISDICTION IN
 FROM HIS CRIMINAL CONVICTION FOR Court, that is, whether or not the COMELEC committed
PLUNDER.14 grave abuse of discretion amounting to lack or excess of
jurisdiction in ruling that former President Estrada is
While this case was pending before The Court, or on May qualified to vote and be voted for in public office as a
13, 2013, the elections were conducted as scheduled result of the pardon granted to him by former President
and former President Estrada was voted into office with Arroyo.
349,770 votes cast in his favor. The next day, the local
board of canvassers proclaimed him as the duly elected In her petition, Risos-Vidal starts her discussion by
Mayor of the City of Manila. pointing out that the pardon granted to former President
Estrada was conditional as evidenced by the latter’s
On June 7, 2013, Lim, one of former President Estrada’s express acceptance thereof. The "acceptance," she
opponents for the position of Mayor, moved for leave to claims, is an indication of the conditional natureof the
intervene in this case. His motion was granted by the pardon, with the condition being embodied in the third
Court in a Resolution15 dated June 25, 2013. Lim Whereas Clause of the pardon, i.e., "WHEREAS, Joseph
subscribed to Risos-Vidal’s theory that former President Ejercito Estrada has publicly committed to no longer seek
Estrada is disqualified to run for and hold public office as any elective position or office." She explains that the
the pardon granted to the latter failed to expressly remit aforementioned commitment was what impelled former
his perpetual disqualification. Further, given that former President Arroyo to pardon former President Estrada,
President Estrada is disqualified to run for and hold without it, the clemency would not have been extended.
public office, all the votes obtained by the latter should be And any breach thereof, that is, whenformer President
declared stray, and, being the second placer with Estrada filed his Certificate of Candidacy for President
313,764 votes to his name, he (Lim) should be declared and Mayor of the City of Manila, he breached the
the rightful winning candidate for the position of Mayor of condition of the pardon; hence, "he ought to be
the City of Manila. recommitted to prison to serve the unexpired portion of
his sentence x x x and disqualifies him as a candidate for
The Issue the mayoralty [position] of Manila."16

Though raising five seemingly separate issues for Nonetheless, Risos-Vidal clarifies that the fundamental
resolution, the petition filed by Risos-Vidal actually basis upon which former President Estrada mustbe
presents only one essential question for resolution by the
disqualified from running for and holding public elective perpetua and reclusion temporal shall carry with them
office is actually the proscription found in Section 40 of that of civil interdiction for life or during the period of the
the LGC, in relation to Section 12 ofthe OEC. She argues sentence as the case may be, and that of perpetual
that the crime of plunder is both an offense punishable by absolute disqualification which the offender shall suffer
imprisonment of one year or more and involving moral even though pardoned as to the principal penalty, unless
turpitude; such that former President Estrada must be the same shall have been expressly remitted in the
disqualified to run for and hold public elective office. pardon. (Emphases supplied.)

Even with the pardon granted to former President She avers that in view of the foregoing provisions of law,
Estrada, however, Risos-Vidal insists that the same did it is not enough that a pardon makes a general statement
not operate to make available to former President that such pardon carries with it the restoration of civil and
Estrada the exception provided under Section 12 of the political rights. By virtue of Articles 36 and 41, a pardon
OEC, the pardon being merely conditional and not restoring civil and political rights without categorically
absolute or plenary. Moreover, Risos-Vidal puts a making mention what specific civil and political rights are
premium on the ostensible requirements provided under restored "shall not work to restore the right to hold public
Articles 36 and 41 of the Revised Penal Code, to wit: office, or the right of suffrage; nor shall it remit the
accessory penalties of civil interdiction and perpetual
ART. 36. Pardon; its effects.– A pardon shall not work the absolute disqualification for the principal penalties of
restoration of the right to hold public office, or the right of reclusion perpetua and reclusion temporal."17 In other
suffrage, unless such rights be expressly restored by the words, she considers the above constraints as
terms of the pardon. mandatory requirements that shun a general or implied
restoration of civil and political rights in pardons.
A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by the Risos-Vidal cites the concurring opinions of Associate
sentence. Justices Teodoro R. Padilla and Florentino P. Feliciano in
Monsanto v. Factoran, Jr.18 to endorse her position that
xxxx "[t]he restoration of the right to hold public office to one
who has lost such right by reason of conviction in a
ART. 41. Reclusion perpetua and reclusion temporal – criminal case, but subsequently pardoned, cannot be left
Their accessory penalties.– The penalties of reclusion
to inference, no matter how intensely arguable, but must demonstration, or ought to be known to them because of
be statedin express, explicit, positive and specific their judicial functions."20
language."
Further, the OSG contends that "[w]hile at first glance, it
Applying Monsantoto former President Estrada’s case, is apparent that [former President Estrada’s] conviction
Risos-Vidal reckons that "such express restoration is for plunder disqualifies him from running as mayor of
further demanded by the existence of the condition in the Manila under Section 40 of the [LGC], the subsequent
[third] [W]hereas [C]lause of the pardon x x x indubitably grant of pardon to him, however, effectively restored his
indicating that the privilege to hold public office was not right to run for any public office."21 The restoration of his
restored to him."19 right to run for any public office is the exception to the
prohibition under Section 40 of the LGC, as provided
On the other hand, the Office ofthe Solicitor General under Section 12 of the OEC. As to the seeming
(OSG) for public respondent COMELEC, maintains that requirement of Articles 36 and 41 of the Revised Penal
"the issue of whether or not the pardon extended to Code, i.e., the express restoration/remission of a
[former President Estrada] restored his right to run for particular right to be stated in the pardon, the OSG
public office had already been passed upon by public asserts that "an airtight and rigid interpretation of Article
respondent COMELEC way back in 2010 via its rulings in 36 and Article 41 of the [RPC] x x x would be stretching
SPA Nos. 09-024, 09-028 and 09-104, there is no cogent too much the clear and plain meaning of the aforesaid
reason for it to reverse its standing pronouncement and provisions."22 Lastly, taking into consideration the third
declare [former President Estrada] disqualified to run and Whereas Clause of the pardon granted to former
be voted as mayor of the City of Manila in the absence of President Estrada, the OSG supports the position that it
any new argument that would warrant its reversal. To be "is not an integral part of the decree of the pardon and
sure, public respondent COMELEC correctly exercised cannot therefore serve to restrict its effectivity."23
its discretion in taking judicial cognizance of the aforesaid
rulings which are known toit and which can be verified Thus, the OSG concludes that the "COMELEC did not
from its own records, in accordance with Section 2, Rule commit grave abuse of discretion amounting to lack or
129 of the Rules of Court on the courts’ discretionary excess of jurisdiction in issuing the assailed
power to take judicial notice of matters which are of Resolutions."24
public knowledge, orare capable of unquestionable
For his part, former President Estrada presents the during his candidacy for President back in 2009-2010;
following significant arguments to defend his stay in that Articles 36 and 41 of the Revised Penal Code
office: that "the factual findings of public respondent "cannot abridge or diminish the pardoning power of the
COMELEC, the Constitutional body mandated to President expressly granted by the Constitution;" that the
administer and enforce all laws relative to the conduct of text of the pardon granted to him substantially, if not fully,
the elections, [relative to the absoluteness of the pardon, complied with the requirement posed by Article 36 of the
the effects thereof, and the eligibility of former President Revised Penal Code as it was categorically stated in the
Estrada to seek public elective office] are binding [and said document that he was "restored to his civil and
conclusive] on this Honorable Supreme Court;" that he political rights;" that since pardon is an act of grace, it
"was granted an absolute pardon and thereby restored to must be construed favorably in favor of the grantee;25 and
his full civil and political rights, including the right to seek that his disqualification will result in massive
public elective office such as the mayoral (sic) position in disenfranchisement of the hundreds of thousands of
the City of Manila;" that "the majority decision in the case Manileños who voted for him.26
of Salvacion A. Monsanto v. Fulgencio S. Factoran,
Jr.,which was erroneously cited by both Vidal and Lim as The Court's Ruling
authority for their respective claims, x x x reveal that
there was no discussion whatsoever in the ratio The petition for certiorari lacks merit.
decidendi of the Monsanto case as to the alleged
necessity for an expressed restoration of the ‘right to hold Former President Estrada was granted an absolute
public office in the pardon’ as a legal prerequisite to pardon that fully restored all his civil and political rights,
remove the subject perpetual special disqualification;" which naturally includes the right to seek public elective
that moreover, the "principal question raised in this office, the focal point of this controversy.
Monsanto case is whether or not a public officer, who has
The wording of the pardon extended to former President
been granted an absolute pardon by the Chief Executive,
Estrada is complete, unambiguous, and unqualified. It is
is entitled to reinstatement toher former position without
likewise unfettered by Articles 36 and 41 of the Revised
need of a new appointment;" that his "expressed
Penal Code. The only reasonable, objective, and
acceptance [of the pardon] is not proof that the pardon
constitutional interpretation of the language of the pardon
extended to [him] is conditional and not absolute;" that
is that the same in fact conforms to Articles 36 and 41 of
this case is a mere rehash of the casesfiled against him
the Revised Penal Code. Recall that the petition for
disqualification filed by Risos-Vidal against former disqualification. Even if her intention was the contrary,
President Estrada, docketed as SPA No. 13-211 (DC), the same cannot be upheld based on the pardon’s text.
was anchored on Section 40 of the LGC, in relation to
Section 12 of the OEC, that is, having been convicted of The pardoning power of the President cannot be limited
a crime punishable by imprisonment of one year or more, by legislative action.
and involving moral turpitude, former President Estrada
must be disqualified to run for and hold public elective The 1987 Constitution, specifically Section 19 of Article
office notwithstanding the fact that he is a grantee of a VII and Section 5 of Article IX-C, provides that the
pardon that includes a statement expressing "[h]e is President of the Philippines possesses the power to grant
hereby restored to his civil and political rights." Risos- pardons, along with other acts of executive clemency, to
Vidal theorizes that former President Estrada is wit:
disqualified from running for Mayor of Manila inthe May
13, 2013 Elections, and remains disqualified to hold any Section 19. Except in cases of impeachment, or as
local elective post despite the presidential pardon otherwise provided in this Constitution, the President may
extended to him in 2007 by former President Arroyo for grant reprieves, commutations, and pardons, and remit
the reason that it (pardon) did not expressly provide for fines and forfeitures, after conviction by final judgment.
the remission of the penalty of perpetual absolute
He shall also have the power to grant amnesty with the
disqualification, particularly the restoration of his (former
concurrence of a majority of all the Members of the
President Estrada) right to vote and bevoted upon for
Congress.
public office. She invokes Articles 36 and 41 of the
Revised Penal Code as the foundations of her theory.
xxxx
It is insisted that, since a textual examination of the
Section 5. No pardon, amnesty, parole, or suspension of
pardon given to and accepted by former President
sentence for violation of election laws, rules, and
Estrada does not actually specify which political right is
regulations shall be granted by the President without the
restored, it could be inferred that former President Arroyo
favorable recommendation of the Commission.
did not deliberately intend to restore former President
Estrada’s rights of suffrage and to hold public office, orto It is apparent from the foregoing constitutional provisions
otherwise remit the penalty of perpetual absolute that the only instances in which the President may not
extend pardon remain to be in: (1) impeachment cases; This doctrine of non-diminution or non-impairment of the
(2) cases that have not yet resulted in a final conviction; President’s power of pardon by acts of Congress,
and (3) cases involving violations of election laws, rules specifically through legislation, was strongly adhered to
and regulations in which there was no favorable by an overwhelming majority of the framers of the 1987
recommendation coming from the COMELEC. Therefore, Constitution when they flatly rejected a proposal to carve
it can be argued that any act of Congress by way of out an exception from the pardoning power of the
statute cannot operate to delimit the pardoning power of President in the form of "offenses involving graft and
the President. corruption" that would be enumerated and defined by
Congress through the enactment of a law. The following
is the pertinent portion lifted from the Record of the
Commission (Vol. II):
In Cristobal v. Labrador27 and Pelobello v.
28
Palatino,  which were decided under the 1935 MR. ROMULO. I ask that Commissioner Tan be
Constitution, wherein the provision granting pardoning recognized to introduce an amendment on the same
power to the President shared similar phraseology with section.
what is found in the present 1987 Constitution, the Court
then unequivocally declared that "subject to the THE PRESIDENT. Commissioner Tan is recognized.
limitations imposed by the Constitution, the pardoning
power cannot be restricted or controlled by legislative SR. TAN. Madam President, lines 7 to 9 state:
action." The Court reiterated this pronouncement in
Monsanto v. Factoran, Jr.29 thereby establishing that, However, the power to grant executive clemency for
under the present Constitution, "a pardon, being a violations of corrupt practices laws may be limited by
presidential prerogative, should not be circumscribed by legislation.
legislative action." Thus, it is unmistakably the long-
standing position of this Court that the exercise of the I suggest that this be deletedon the grounds that, first,
pardoning power is discretionary in the President and violations of corrupt practices may include a very little
may not be interfered with by Congress or the Court, offense like stealing ₱10; second, which I think is more
except only when it exceeds the limits provided for by the important, I get the impression, rightly or wrongly, that
Constitution. subconsciously we are drafting a constitution on the
premise that all our future Presidents will bebad and
dishonest and, consequently, their acts will be lacking in magnitude as to affect the economic life of the country, if
wisdom. Therefore, this Article seems to contribute it is in the millions or billions of dollars. But I assume the
towards the creation of an anti-President Constitution or Congress in its collective wisdom will exclude those petty
a President with vast responsibilities but no crimes of corruption as not to require any further stricture
corresponding power except to declare martial law. on the exercise of executive clemency because, of
Therefore, I request that these lines be deleted. course, there is a whale of a difference if we consider a
lowly clerk committing malversation of government
MR. REGALADO. Madam President,may the Committee property or funds involving one hundred pesos. But then,
react to that? we also anticipate the possibility that the corrupt practice
of a public officer is of such magnitude as to have
THE PRESIDENT. Yes, please. virtually drained a substantial portion of the treasury, and
then he goes through all the judicial processes and later
MR. REGALADO. This was inserted here on the on, a President who may have close connections with
resolution of Commissioner Davide because of the fact him or out of improvident compassion may grant
that similar to the provisions on the Commission on clemency under such conditions. That is why we left it to
Elections, the recommendation of that Commission is Congress to provide and make a classification based on
required before executive clemency isgranted because substantial distinctions between a minor act of corruption
violations of the election laws go into the very political life or an act of substantial proportions. SR. TAN. So, why do
of the country. we not just insert the word GROSS or GRAVE before the
word "violations"?
With respect to violations of our Corrupt Practices Law,
we felt that it is also necessary to have that subjected to MR. REGALADO. We feel that Congress can make a
the same condition because violation of our Corrupt better distinction because "GRAVE" or "GROSS" can be
Practices Law may be of such magnitude as to affect the misconstrued by putting it purely as a policy.
very economic systemof the country. Nevertheless, as a
compromise, we provided here that it will be the MR. RODRIGO. Madam President.
Congress that will provide for the classification as to
which convictions will still require prior recommendation; THE PRESIDENT. Commissioner Rodrigo is recognized.
after all, the Congress could take into account whether or
not the violation of the Corrupt Practices Law is of such
MR. RODRIGO. May I speak in favor of the proposed a favorable recommendation by the Commission on
amendment? Elections for any violation of election laws.

THE PRESIDENT. Please proceed. At any rate, Commissioner Davide, as the principal
proponent of that and as a member of the Committee,
MR. RODRIGO. The power to grant executive clemency has explained in the committee meetings we had why he
is essentially an executive power, and that is precisely sought the inclusion of this particular provision. May we
why it is called executive clemency. In this sentence, call on Commissioner Davide to state his position.
which the amendment seeks to delete, an exception is
being made. Congress, which is the legislative arm, is MR. DAVIDE. Madam President.
allowed to intrude into this prerogative of the executive.
Then it limits the power of Congress to subtract from this THE PRESIDENT. Commissioner Davide is recognized.
prerogative of the President to grant executive clemency
by limiting the power of Congress to only corrupt MR. DAVIDE. I am constrained to rise to object to the
practices laws. There are many other crimes more proposal. We have just approved the Article on
serious than these. Under this amendment, Congress Accountability of Public Officers. Under it, it is mandated
cannot limit the power of executive clemency in cases of that a public office is a public trust, and all government
drug addiction and drug pushing which are very, very officers are under obligation to observe the utmost of
serious crimes that can endanger the State; also, rape responsibility, integrity, loyalty and efficiency, to lead
with murder, kidnapping and treason. Aside from the fact modest lives and to act with patriotism and justice.
that it is a derogation of the power of the President to
grant executive clemency, it is also defective in that it In all cases, therefore, which would go into the very core
singles out just one kind of crime. There are far more of the concept that a public office is a public trust, the
serious crimes which are not included. violation is itself a violation not only of the economy but
the moral fabric of public officials. And that is the reason
MR. REGALADO. I will just make one observation on we now want that if there is any conviction for the
that. We admit that the pardoning power is anexecutive violation of the Anti-Graft and Corrupt Practices Act,
power. But even in the provisions on the COMELEC, one which, in effect, is a violation of the public trust character
will notice that constitutionally, it is required that there be of the public office, no pardon shall be extended to the
offender, unless some limitations are imposed.
Originally, my limitation was, it should be with the I am supporting the amendment by deletion of
concurrence of the convicting court, but the Committee Commissioner Tan.
left it entirely to the legislature to formulate the
mechanics at trying, probably, to distinguish between MR. ROMULO. Commissioner Tingson would like to be
grave and less grave or serious cases of violation of the recognized.
Anti-Graft and Corrupt Practices Act. Perhaps this is now
the best time, since we have strengthened the Article on THE PRESIDENT. Commissioner Tingson is recognized.
Accountability of Public Officers, to accompany it with a
mandate that the President’s right to grant executive MR. TINGSON. Madam President, I am also in favor of
clemency for offenders or violators of laws relating to the the amendment by deletion because I am in sympathy
concept of a public office may be limited by Congress with the stand of Commissioner Francisco "Soc" Rodrigo.
itself. I do believe and we should remember that above all the
elected or appointed officers of our Republic, the leader
MR. SARMIENTO. Madam President. is the President. I believe that the country will be as the
President is, and if we systematically emasculate the
THE PRESIDENT. Commissioner Sarmiento is power of this presidency, the time may come whenhe will
recognized. be also handcuffed that he will no longer be able to act
like he should be acting.
MR. SARMIENTO. May I briefly speak in favor of the
amendment by deletion. So, Madam President, I am in favor of the deletion of this
particular line.
Madam President, over and over again, we have been
saying and arguing before this Constitutional MR. ROMULO. Commissioner Colayco would like to be
Commission that we are emasculating the powers of the recognized.
presidency, and this provision to me is another clear
example of that. So, I speak against this provision. Even THE PRESIDENT. Commissioner Colayco is recognized.
the 1935 and the 1973 Constitutions do not provide for
this kind of provision. MR. COLAYCO. Thank you very much, Madam
President.
I seldom rise here to object to or to commend or to when as already stated, there are many provisions inthe
recommend the approval of proposals, but now I find that Revised Penal Code that penalize more serious offenses.
the proposal of Commissioner Tan is worthy of approval
of this body. Moreover, when there is a judgment of conviction and the
case merits the consideration of the exercise of executive
Why are we singling out this particular offense? There clemency, usually under Article V of the Revised Penal
are other crimes which cast a bigger blot on the moral Code the judge will recommend such exercise of
character of the public officials. clemency. And so, I am in favor of the amendment
proposed by Commissioner Tan for the deletion of this
Finally, this body should not be the first one to limit the last sentence in Section 17.
almost absolute power of our Chief Executive in deciding
whether to pardon, to reprieve or to commute the THE PRESIDENT. Are we ready to vote now, Mr. Floor
sentence rendered by the court. Leader?

I thank you. MR. NATIVIDAD. Just one more.

THE PRESIDENT. Are we ready to vote now? THE PRESIDENT. Commissioner Natividad is
recognized.
MR. ROMULO. Commissioner Padilla would like to be
recognized, and after him will be Commissioner MR. NATIVIDAD. I am also against this provision which
Natividad. will again chip more powers from the President. In case
of other criminals convicted in our society, we extend
THE PRESIDENT. Commissioner Padilla is recognized. probation to them while in this case, they have already
been convicted and we offer mercy. The only way we can
MR. PADILLA. Only one sentence, Madam President. offer mercy to them is through this executive clemency
The Sandiganbayan has been called the Anti-Graft Court, extended to them by the President. If we still close this
so if this is allowed to stay, it would mean that the avenue to them, they would be prejudiced even worse
President’s power togrant pardon or reprieve will be than the murderers and the more vicious killers in our
limited to the cases decided by the Anti-Graft Court, society. I do not think they deserve this opprobrium and
punishment under the new Constitution.
I am in favor of the proposed amendment of
Commissioner Tan.

MR. ROMULO. We are ready tovote, Madam President.

THE PRESIDENT. Is this accepted by the Committee?

The proper interpretation of Articles
MR. REGALADO. The Committee, Madam President,
prefers to submit this to the floor and also because of the 36 and 41 of the Revised Penal Code.
objection of the main proponent, Commissioner Davide.
So we feel that the Commissioners should vote on this The foregoing pronouncements solidify the thesis that
question. Articles 36 and 41 of the Revised Penal Code cannot, in
any way, serve to abridge or diminish the exclusive
VOTING power and prerogative of the President to pardon
persons convicted of violating penal statutes.
THE PRESIDENT. As many as are in favor of the
proposed amendment of Commissioner Tan to delete the The Court cannot subscribe to Risos-Vidal’s
last sentence of Section 17 appearing on lines 7, 8 and 9, interpretation that the said Articles contain specific textual
please raise their hand. (Several Members raised their commands which must be strictly followed in order to free
hand.) the beneficiary of presidential grace from the
disqualifications specifically prescribed by them.
As many as are against, please raise their hand. (Few
Members raised their hand.) Again, Articles 36 and 41 of the Revised Penal Code
provides:
The results show 34 votes in favor and 4 votes against;
the amendment is approved.30 (Emphases supplied.) ART. 36. Pardon; its effects.– A pardon shall not work the
restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the
terms of the pardon.
A pardon shall in no case exempt the culprit from the President Estrada "is hereby restored to his civil and
payment of the civil indemnity imposed upon him by the political rights" substantially complies with the
sentence. requirement of express restoration.

xxxx The Dissent of Justice Marvic M.V.F. Leonen agreed with

Risos Vidal that there was no express remission and/or
ART. 41. Reclusion perpetua and reclusion temporal – restoration of the rights of suffrage and/or to hold public
Their accessory penalties.– The penalties of reclusion office in the pardon granted to former President Estrada,
perpetua and reclusion temporal shall carry with them as required by Articles 36 and 41 of the Revised Penal
that of civil interdiction for life or during the period of the Code.
sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer Justice Leonen posits in his Dissent that the
even though pardoned as to the principal penalty, unless aforementioned codal provisions must be followed by the
the same shall have been expressly remitted in the President, as they do not abridge or diminish the
pardon. (Emphases supplied.) President’s power to extend clemency. He opines that
they do not reduce the coverage of the President’s
A rigid and inflexible reading of the above provisions of pardoning power. Particularly, he states:
law, as proposed by Risos-Vidal, is unwarranted,
especially so if it will defeat or unduly restrict the power of Articles 36 and 41 refer only to requirements of
the President to grant executive clemency. convention or form. They only provide a procedural
prescription. They are not concerned with areas where or
It is well-entrenched in this jurisdiction that where the the instances when the President may grant pardon; they
words of a statute are clear, plain, and free from are only concerned with how he or she is to exercise
ambiguity, it must be given its literal meaning and applied such power so that no other governmental instrumentality
without attempted interpretation. Verba legis non est needs to intervene to give it full effect.
recedendum. From the words of a statute there should be
no departure.31  All that Articles 36 and 41 do is prescribe that, if the
President wishes to include in the pardon the restoration
It is this Court’s firm view that the phrase in the of the rights of suffrage and to hold public office, or the
presidential pardon at issue which declares that former remission of the accessory penalty of perpetual absolute
disqualification,he or she should do so expressly. Articles President, instead of indulging in an overly strict
36 and 41 only ask that the President state his or her interpretation that may serve to impair or diminish the
intentions clearly, directly, firmly, precisely, and import of the pardon which emanated from the Office of
unmistakably. To belabor the point, the President retains the President and duly signed by the Chief Executive
the power to make such restoration or remission, subject himself/herself. The said codal provisions must be
to a prescription on the manner by which he or she is to construed to harmonize the power of Congress to define
state it.32 crimes and prescribe the penalties for such crimes and
the power of the President to grant executive clemency.
With due respect, I disagree with the overbroad All that the said provisions impart is that the pardon of the
statement that Congress may dictate as to how the principal penalty does notcarry with it the remission of the
President may exercise his/her power of executive accessory penalties unless the President expressly
clemency. The form or manner by which the President, or includes said accessory penalties in the pardon. It still
Congress for that matter, should exercise their respective recognizes the Presidential prerogative to grant executive
Constitutional powers or prerogatives cannot be clemency and, specifically, to decide to pardon the
interfered with unless it is so provided in the Constitution. principal penalty while excluding its accessory penalties
This is the essence of the principle of separation of or to pardon both. Thus, Articles 36 and 41 only clarify
powers deeply ingrained in our system of government the effect of the pardon so decided upon by the President
which "ordains that each of the three great branches of on the penalties imposedin accordance with law.
government has exclusive cognizance of and is supreme
in matters falling within its own constitutionally allocated A close scrutiny of the text of the pardon extended to
sphere."33 Moreso, this fundamental principle must be former President Estrada shows that both the principal
observed if noncompliance with the form imposed by one penalty of reclusion perpetua and its accessory penalties
branch on a co-equal and coordinate branch will result are included in the pardon. The first sentence refers to
into the diminution of an exclusive Constitutional the executive clemency extended to former President
prerogative. Estrada who was convicted by the Sandiganbayan of
plunder and imposed a penalty of reclusion perpetua.
For this reason, Articles 36 and 41 of the Revised Penal The latter is the principal penalty pardoned which
Code should be construed in a way that will give full relieved him of imprisonment. The sentence that
effect to the executive clemency granted by the followed, which states that "(h)e is hereby restored to his
civil and political rights," expressly remitted the accessory such public office as required by the Constitution
penalties that attached to the principal penalty of and existing laws and, at the time of the filing of
reclusion perpetua. Hence, even if we apply Articles 36 the certificate of candidacy, make a personal and
and 41 of the Revised Penal Code, it is indubitable from sworn renunciation of any and all foreign
the text of the pardon that the accessory penalties of civil citizenship before any public officer authorized to
interdiction and perpetual absolute disqualification were administer an oath;
expressly remitted together with the principal penalty of
reclusion perpetua. (3) Those appointed to any public office shall
subscribe and swear an oath of allegiance to the
In this jurisdiction, the right to seek public elective office Republic of the Philippines and its duly constituted
is recognized by law as falling under the whole gamut of authorities prior to their assumption of office:
civil and political rights. Provided, That they renounce their oath of
allegiance to the country where they took that
Section 5 of Republic Act No. 9225,34 otherwise known as oath; (4) Those intending to practice their
the "Citizenship Retention and Reacquisition Act of profession in the Philippines shall apply with the
2003," reads as follows: proper authority for a license or permit to engage
in such practice; and
Section 5. Civil and Political Rights and Liabilities.–
Those who retain or reacquire Philippine citizenship (5) That right to vote or be elected or appointed to
under this Act shall enjoy full civil and political rights and any public office in the Philippines cannot be
be subject to all attendant liabilities and responsibilities exercised by, or extended to, those who:
under existing laws of the Philippines and the following
conditions: (1) Those intending to exercise their right of (a) are candidates for or are occupying any
suffrage must meet the requirements under Section 1, public office in the country of which theyare
Article V of the Constitution, Republic Act No. 9189, naturalized citizens; and/or
otherwise known as "The Overseas Absentee Voting Act
of 2003" and other existing laws; (b) are in active service as commissioned
or non commissioned officers in the armed
(2) Those seeking elective public office in the forces of the country which they are
Philippines shall meet the qualifications for holding naturalized citizens. (Emphases supplied.)
No less than the International Covenant on Civil and renunciation of her Australian citizenship, she is ineligible
Political Rights, to which the Philippines is a signatory, to run for and hold any elective office in the Philippines.
acknowledges the existence of said right. Article 25(b) of (Emphasis supplied.)
the Convention states: Article 25
Thus, from both law and jurisprudence, the right to seek
Every citizen shall have the right and the opportunity, public elective office is unequivocally considered as a
without any of the distinctions mentioned in Article 2 and political right. Hence, the Court reiterates its earlier
without unreasonable restrictions: statement that the pardon granted to former President
Estrada admits no other interpretation other than to mean
xxxx that, upon acceptance of the pardon granted to him, he
regained his FULL civil and political rights – including the
(b) To vote and to be electedat genuine periodic elections right to seek elective office.
which shall be by universal and equal suffrage and shall
be held by secret ballot, guaranteeing the free expression On the other hand, the theory of Risos-Vidal goes
of the will of the electors[.] (Emphasis supplied.) beyond the plain meaning of said penal provisions; and
prescribes a formal requirement that is not only
Recently, in Sobejana-Condon v. Commission on unnecessary but, if insisted upon, could be in derogation
Elections,35 the Court unequivocally referred to the right of the constitutional prohibition relative to the principle
to seek public elective office as a political right, to wit: that the exercise of presidential pardon cannot be
affected by legislative action.
Stated differently, it is an additional qualification for
elective office specific only to Filipino citizens who re- Risos-Vidal relied heavily on the separate concurring
acquire their citizenship under Section 3 of R.A. No. opinions in Monsanto v. Factoran, Jr.36 to justify her
9225. It is the operative act that restores their right to run argument that an absolute pardon must expressly state
for public office. The petitioner’s failure to comply there that the right to hold public office has been restored, and
with in accordance with the exact tenor of the law, that the penalty of perpetual absolute disqualification has
rendered ineffectual the Declaration of Renunciation of been remitted.
Australian Citizenship she executed on September 18,
2006. As such, she is yet to regain her political right to This is incorrect.
seek elective office. Unless she executes a sworn
Her reliance on said opinions is utterly misplaced. one (1) year or more of imprisonment, within two (2)
Although the learned views of Justices Teodoro R. years after serving sentence[.] (Emphasis supplied.)
Padilla and Florentino P. Feliciano are to be respected,
they do not form part of the controlling doctrine nor to be Likewise, Section 12 of the OEC provides for similar
considered part of the law of the land. On the contrary, a prohibitions, but it provides for an exception, to wit:
careful reading of the majority opinion in Monsanto,
penned by no less than Chief Justice Marcelo B. Fernan, Section 12. Disqualifications. – x x x unless he has been
reveals no statement that denotes adherence to a given plenary pardon or granted amnesty. (Emphasis
stringent and overly nuanced application of Articles 36 supplied.)
and 41 of the Revised Penal Code that will in effect
require the President to use a statutorily prescribed As earlier stated, Risos-Vidal maintains that former
language in extending executive clemency, even if the President Estrada’s conviction for plunder disqualifies
intent of the President can otherwise be deduced from him from running for the elective local position of Mayor
the text or words used in the pardon. Furthermore, as of the City of Manila under Section 40(a) of the LGC.
explained above, the pardon here is consistent with, and However, the subsequent absolute pardon granted to
not contrary to, the provisions of Articles 36 and 41. former President Estrada effectively restored his right to
seek public elective office. This is made possible by
The disqualification of former President Estrada under reading Section 40(a) of the LGC in relation to Section 12
Section 40 of the LGC in relation to Section 12 of the of the OEC.
OEC was removed by his acceptance of the absolute
pardon granted to him. While it may be apparent that the proscription in Section
40(a) of the LGC is worded in absolute terms, Section 12
Section 40 of the LGC identifies who are disqualified from of the OEC provides a legal escape from the prohibition –
running for any elective local position. Risos-Vidal argues a plenary pardon or amnesty. In other words, the latter
that former President Estrada is disqualified under item provision allows any person who has been granted
(a), to wit: plenary pardon or amnesty after conviction by final
judgment of an offense involving moral turpitude, inter
(a) Those sentenced by final judgment for an offense alia, to run for and hold any public office, whether local or
involving moral turpitude or for an offense punishable by national position.
Take notice that the applicability of Section 12 of the Ejercito Estrada has publicly committed to no longer seek
OEC to candidates running for local elective positions is any elective position or office," neither makes the pardon
not unprecedented. In Jalosjos, Jr. v. Commission on conditional, nor militate against the conclusion that
Elections,37 the Court acknowledged the aforementioned former President Estrada’s rights to suffrage and to seek
provision as one of the legal remedies that may be public elective office have been restored.
availed of to disqualify a candidate in a local election filed
any day after the last day for filing of certificates of This is especially true as the pardon itself does not
candidacy, but not later than the date of explicitly impose a condition or limitation, considering the
proclamation.38 The pertinent ruling in the Jalosjos case unqualified use of the term "civil and political rights"as
is quoted as follows: being restored. Jurisprudence educates that a preamble
is not an essential part of an act as it is an introductory or
What is indisputably clear is that false material preparatory clause that explains the reasons for the
representation of Jalosjos is a ground for a petition under enactment, usually introduced by the word
40
Section 78. However, since the false material "whereas."  Whereas clauses do not form part of a
representation arises from a crime penalized by prision statute because, strictly speaking, they are not part of the
mayor, a petition under Section 12 ofthe Omnibus operative language of the statute.41 In this case, the
Election Code or Section 40 of the Local Government whereas clause at issue is not an integral part of the
Code can also be properly filed. The petitioner has a decree of the pardon, and therefore, does not by itself
choice whether to anchor his petition on Section 12 or alone operate to make the pardon conditional or to make
Section 78 of the Omnibus Election Code, or on Section its effectivity contingent upon the fulfilment of the
40 of the Local Government Code. The law expressly aforementioned commitment nor to limit the scope of the
provides multiple remedies and the choice of which pardon.
remedy to adopt belongs to petitioner.39 (Emphasis
supplied.) On this matter, the Court quotes with approval a relevant
excerpt of COMELEC Commissioner Maria Gracia
The third preambular clause of the pardon did not Padaca’s separate concurring opinion in the assailed
operate to make the pardon conditional. April 1, 2013 Resolution of the COMELEC in SPA No.
13-211 (DC), which captured the essence of the legal
Contrary to Risos-Vidal’s declaration, the third effect of preambular paragraphs/whereas clauses, viz:
preambular clause of the pardon, i.e., "[w]hereas, Joseph
The present dispute does not raise anything which the 20 of the decree of pardon, the Commission is constrained
January 2010 Resolution did not conclude upon. Here, to rule that the 3rd preambular clause cannot be
Petitioner Risos-Vidal raised the same argument with interpreted as a condition to the pardon extended to
respect to the 3rd "whereas clause" or preambular former President Estrada.42 (Emphasis supplied.)
paragraph of the decree of pardon. It states that "Joseph
Ejercito Estrada has publicly committed to no longer seek Absent any contrary evidence, former President Arroyo’s
any elective position or office." On this contention, the silence on former President Estrada’s decision torun for
undersigned reiterates the ruling of the Commission that President in the May 2010 elections against, among
the 3rd preambular paragraph does not have any legal or others, the candidate of the political party of former
binding effect on the absolute nature of the pardon President Arroyo, after the latter’s receipt and
extended by former President Arroyo to herein acceptance of the pardon speaks volume of her intention
Respondent. This ruling is consistent with the traditional to restore him to his rights to suffrage and to hold public
and customary usage of preambular paragraphs. In the office.
case of Echegaray v. Secretary of Justice, the Supreme
Court ruled on the legal effect of preambular paragraphs Where the scope and import of the executive clemency
or whereas clauses on statutes. The Court stated, viz.: extended by the President is in issue, the Court must turn
to the only evidence available to it, and that is the pardon
Besides, a preamble is really not an integral part of a law. itself. From a detailed review ofthe four corners of said
It is merely an introduction to show its intent or purposes. document, nothing therein gives an iota of intimation that
It cannot be the origin of rights and obligations. Where the third Whereas Clause is actually a limitation, proviso,
the meaning of a statute is clear and unambiguous, the stipulation or condition on the grant of the pardon, such
preamble can neither expand nor restrict its operation that the breach of the mentioned commitment not to seek
much less prevail over its text. public office will result ina revocation or cancellation of
said pardon. To the Court, what it is simply is a statement
If former President Arroyo intended for the pardon to be of fact or the prevailing situation at the time the executive
conditional on Respondent’s promise never to seek a clemency was granted. It was not used as a condition to
public office again, the former ought to have explicitly the efficacy orto delimit the scope of the pardon.
stated the same in the text of the pardon itself. Since
former President Arroyo did not make this an integral part Even if the Court were to subscribe to the view that the
third Whereas Clausewas one of the reasons to grant the
pardon, the pardon itself does not provide for the disqualification made up of, among others, the rights of
attendant consequence of the breach thereof. This Court suffrage and to hold public office. He adds that had the
will be hard put to discern the resultant effect of an President chosen to be so expansive as to include the
eventual infringement. Just like it will be hard put to rights of suffrage and to hold public office, she should
determine which civil or political rights were restored if have been more clear on her intentions.
the Court were to take the road suggested by Risos-Vidal
that the statement "[h]e is hereby restored to his civil and However, the statement "[h]e is hereby restored to his
political rights" excludes the restoration of former civil and political rights," to the mind of the Court, iscrystal
President Estrada’s rights to suffrage and to hold public clear – the pardon granted to former President Estrada
office. The aforequoted text ofthe executive clemency was absolute, meaning, it was not only unconditional, it
granted does not provide the Court with any guide asto was unrestricted in scope, complete and plenary in
how and where to draw the line between the included character, as the term "political rights"adverted to has a
and excluded political rights. settled meaning in law and jurisprudence.

Justice Leonen emphasizes the point that the ultimate With due respect, I disagree too with Justice Leonen that
issue for resolution is not whether the pardon is the omission of the qualifying word "full" can be
contingent on the condition that former President Estrada construed as excluding the restoration of the rights of
will not seek janother elective public office, but it actually suffrage and to hold public office. There appears to be no
concerns the coverage of the pardon – whether the distinction as to the coverage of the term "full political
pardon granted to former President Estrada was so rights" and the term "political rights" used alone without
expansive as to have restored all his political rights, any qualification. How to ascribe to the latter term the
inclusive of the rights of suffrage and to hold public office. meaning that it is "partial" and not "full" defies one’s
Justice Leonen is of the view that the pardon in question understanding. More so, it will be extremely difficult to
is not absolute nor plenary in scope despite the identify which of the political rights are restored by the
statement that former President Estrada is "hereby pardon, when the text of the latter is silent on this matter.
restored to his civil and political rights," that is, the Exceptions to the grant of pardon cannot be presumed
foregoing statement restored to former President Estrada from the absence of the qualifying word "full" when the
all his civil and political rights except the rights denied to pardon restored the "political rights" of former President
him by the unremitted penalty of perpetual absolute Estrada without any exclusion or reservation.
Therefore, there can be no other conclusion but to say capricious exercise of power that amounts to an evasion
that the pardon granted to former President Estrada was or refusal to perform a positive duty enjoined by law or to
absolute in the absence of a clear, unequivocal and act at all in contemplation of law. For an act to be
concrete factual basis upon which to anchor or support condemned as having been done with grave abuse of
the Presidential intent to grant a limited pardon. discretion, such an abuse must be patent and gross.44

To reiterate, insofar as its coverage is concerned, the text The arguments forwarded by Risos-Vidal fail to
of the pardon can withstand close scrutiny even under adequately demonstrate any factual or legal bases to
the provisions of Articles 36 and 41 of the Revised Penal prove that the assailed COMELEC Resolutions were
Code. issued in a "whimsical, arbitrary or capricious exercise of
power that amounts to an evasion orrefusal to perform a
The COMELEC did not commit grave abuse of discretion positive duty enjoined by law" or were so "patent and
amounting to lack or excess of jurisdiction in issuing the gross" as to constitute grave abuse of discretion.
assailed Resolutions.
On the foregoing premises and conclusions, this Court
In light of the foregoing, contrary to the assertions of finds it unnecessary to separately discuss Lim's petition-
Risos-Vidal, the COMELEC did not commit grave abuse in-intervention, which substantially presented the same
of discretion amounting to lack or excess of jurisdiction in arguments as Risos-Vidal's petition.
issuing the assailed Resolutions.
WHEREFORE, the petition for certiorari and petition-
The Court has consistently held that a petition for inintervention are DISMISSED. The Resolution dated
certiorariagainst actions of the COMELEC is confined April 1, 2013 of the Commission on Elections, Second
only to instances of grave abuse of discretion amounting Division, and the Resolution dated April 23, 2013 of the
to patentand substantial denial of due process, because Commission on Elections, En bane, both in SPA No. 13-
the COMELEC is presumed to be most competent in 211 (DC), are AFFIRMED.
matters falling within its domain.43
SO ORDERED.
As settled in jurisprudence, grave abuse of discretion is
the arbitrary exercise of power due to passion, prejudice
or personal hostility; or the whimsical, arbitrary, or
Absolute pardon refers to the total extinction of
criminal liability to whom it is granted without any
condition. It restores to the individual his civil and
political rights, and remits the penalty imposed for
the particular offense of which he was convicted.
On the otherhand, conditional pardon refers to
the exemption of an individual from the punishment
subject to the fulfillment of a certain condition as
imposed by the government authority.