001. G.R. No.

102007 September 2, 1994

PEOPLE OF THE PHILIPPINES vs. ROGELIO BAYOTAS y CORDOVA

In Criminal Case No. C-3217 filed before Branch 16, RTC Roxas City, Rogelio Bayotas y Cordova was charged with Rape and
eventually convicted thereof on June 19, 1991 in a decision penned by Judge Manuel E. Autajay. Pending appeal of his
conviction, Bayotas died on February 4, 1992 at
the National Bilibid Hospital due to cardio respiratory arrest secondary to hepatic encephalopathy secondary to hipato
carcinoma gastric malingering. Consequently, the Supreme Court in its Resolution of May 20, 1992 dismissed the criminal aspect
of the appeal. However, it required the Solicitor General to file its comment with regard to Bayotas' civil liability arising from his
commission of the offense charged.

In his comment, the Solicitor General expressed his view that the death of accused-appellant did not extinguish his civil liability
as a result of his commission of the offense charged. The Solicitor General, relying on the case of People v. Sendaydiego 1 insists
that the appeal should still be resolved for the purpose of reviewing his conviction by the lower court on which the civil liability
is based.

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 penalties. In support of his
position, said counsel invoked the ruling of the Court of Appeals in People v. Castillo and Ocfemia 2 which held that the civil
obligation in a criminal case takes root in the criminal liability and, therefore, civil liability is extinguished if accused should die
before final judgment is rendered.

We are thus confronted with a single issue: Does death of the accused pending appeal of his conviction extinguish his civil
liability?

In the aforementioned case of People v. Castillo, this issue was settled in the affirmative. This same issue posed therein was
phrased thus: Does the death of Alfredo Castillo affect both his criminal responsibility and his civil liability as a consequence of
the alleged crime?

It resolved this issue thru the following disquisition:

Article 89 of the Revised Penal Code is the controlling statute. It reads, in part:

Art. 89. How criminal liability is totally extinguished. Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to the pecuniary penalties
liability therefor is extinguished only when the death of the offender occurs before final
judgment;

With reference to Castillo's criminal liability, there is no question. The law is plain. Statutory construction is
unnecessary. Said liability is extinguished.

The civil liability, however, poses a problem. Such liability is extinguished only when the death of the offender
occurs before final judgment. Saddled upon us is the task of ascertaining the legal import of the term "final
judgment." Is it final judgment as contradistinguished from an interlocutory order? Or, is it a judgment which is
final and executory?

We go to the genesis of the law. The legal precept contained in Article 89 of the Revised Penal Code heretofore
transcribed is lifted from Article 132 of the Spanish El Codigo Penal de 1870 which, in part, recites:

La responsabilidad penal se extingue.

 1. Por la muerte del reo en cuanto a las penas personales siempre, y respecto a las pecuniarias,
solo cuando a su fallecimiento no hubiere recaido sentencia firme.

xxx xxx xxx

The code of 1870 . . . it will be observed employs the term "sentencia firme." What is "sentencia firme" under the
old statute?

XXVIII Enciclopedia Juridica Espaola, p. 473, furnishes the ready answer: It says:

SENTENCIA FIRME. La sentencia que adquiere la fuerza de las definitivas por no haberse
utilizado por las partes litigantes recurso alguno contra ella dentro de los terminos y plazos
legales concedidos al efecto.

"Sentencia firme" really should be understood as one which is definite. Because, it is only when judgment is
such that, as Medina y Maranon puts it, the crime is confirmed "en condena determinada;" or, in the words of
Groizard, the guilt of the accused becomes "una verdad legal." Prior thereto, should the accused die,
according to Viada, "no hay legalmente, en tal caso, ni reo, ni delito, ni responsabilidad criminal de ninguna
clase." And, as Judge Kapunan well explained, when a defendant dies before judgment becomes executory,
"there cannot be any determination by final judgment whether or not the felony upon which the civil action
might arise exists," for the simple reason that "there is no party defendant." (I Kapunan, Revised Penal Code,
Annotated, p. 421. Senator Francisco holds the same view. Francisco, Revised Penal Code, Book One, 2nd ed.,
pp. 859-860)

The legal import of the term "final judgment" is similarly reflected in the Revised Penal Code. Articles 72 and 78
of that legal body mention the term "final judgment" in the sense that it is already enforceable. This also brings
to mind Section 7, Rule 116 of the Rules of Court which states that a judgment in a criminal case becomes final
"after the lapse of the period for perfecting an appeal or when the sentence has been partially or totally satisfied
or served, or the defendant has expressly waived in writing his right to appeal."

By fair intendment, the legal precepts and opinions here collected funnel down to one positive conclusion: The
term final judgment employed in the Revised Penal Code means judgment beyond recall. Really, as long as a
judgment has not become executory, it cannot be truthfully said that defendant is definitely guilty of the felony
charged against him.

Not that the meaning thus given to final judgment is without reason. For where, as in this case, the right to
institute a separate civil action is not reserved, the decision to be rendered must, of necessity, cover "both the
criminal and the civil aspects of the case." People vs. Yusico (November 9, 1942), 2 O.G., No. 100, p. 964. See
also: People vs. Moll, 68 Phil., 626, 634; Francisco, Criminal Procedure, 1958 ed., Vol. I, pp. 234, 236. Correctly,
Judge Kapunan observed that as "the civil action is based solely on the felony committed and of which the
offender might be found guilty, the death of the offender extinguishes the civil liability." I Kapunan, Revised
Penal Code, Annotated, supra.

Here is the situation obtaining in the present case: Castillo's criminal liability is out. His civil liability is sought
to be enforced by reason of that criminal liability. But then, if we dismiss, as we must, the criminal action and let
the civil aspect remain, we will be faced with the anomalous situation whereby we will be called upon to clamp
civil liability in a case where the source thereof criminal liability does not exist. And, as was well stated
in Bautista, et al. vs. Estrella, et al., CA-G.R.
No. 19226-R, September 1, 1958, "no party can be found and held criminally liable in a civil suit," which solely
would remain if we are to divorce it from the criminal proceeding."

This ruling of the Court of Appeals in the Castillo case 3 was adopted by the Supreme Court in the cases of People of the Philippines
v. Bonifacio Alison, et al., 4 People of the Philippines v. Jaime Jose, et al. 5 and People of the Philippines v. Satorre 6 by dismissing the
appeal in view of the death of the accused pending appeal of said cases.
As held by then Supreme Court Justice Fernando in the Alison case:

The death of accused-appellant Bonifacio Alison having been established, and considering that there is as yet no
final judgment in view of the pendency of the appeal, the criminal and civil liability of the said accused-
appellant Alison was extinguished by his death (Art. 89, Revised Penal Code; Reyes' Criminal Law, 1971 Rev.
Ed., p. 717, citing People v. Castillo and Ofemia C.A., 56 O.G. 4045); consequently, the case against him should
be dismissed.

On the other hand, this Court in the subsequent cases of Buenaventura Belamala v. Marcelino Polinar 7 and Lamberto Torrijos v. The
Honorable Court of Appeals 8 ruled differently. In the former, the issue decided by this court was: Whether the civil liability of one
accused of physical injuries who died before final judgment is extinguished by his demise to the extent of barring any claim
therefore against his estate. It was the contention of the administrator-appellant therein that the death of the accused prior to
final judgment extinguished all criminal and civil liabilities resulting from the offense, in view of Article 89, paragraph 1 of the
Revised Penal Code. However, this court ruled therein:

We see no merit in the plea that the civil liability has been extinguished, in view of the provisions of the Civil
Code of the Philippines of 1950 (Rep. Act No. 386) that became operative eighteen years after the revised Penal
Code. As pointed out by the Court below, Article 33 of the Civil Code establishes a civil action for damages on
account of physical injuries, entirely separate and distinct from the criminal action.

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party. Such civil
action shall proceed independently of the criminal prosecution, and shall require only a
preponderance of evidence.

Assuming that for lack of express reservation, Belamala's civil action for damages was to be considered
instituted together with the criminal action still, since both proceedings were terminated without final
adjudication, the civil action of the offended party under Article 33 may yet be enforced separately.

In Torrijos, the Supreme Court held that:

xxx xxx xxx

It should be stressed that the extinction of civil liability follows the extinction of the criminal liability under
Article 89, only when the civil liability arises from the criminal act as its only basis. Stated differently, where the
civil liability does not exist independently of the criminal responsibility, the extinction of the latter by death, ipso
facto extinguishes the former, provided, of course, that death supervenes before final judgment. The said principle
does not apply in instant case wherein the civil liability springs neither solely nor originally from the crime itself
but from a civil contract of purchase and sale. (Emphasis ours)

xxx xxx xxx

In the above case, the court was convinced that the civil liability of the accused who was charged with estafa could
likewise trace its genesis to Articles 19, 20 and 21 of the Civil Code since said accused had swindled the first and second
vendees of the property subject matter of the contract of sale. It therefore concluded: "Consequently, while the death of
the accused herein extinguished his criminal liability including fine, his civil liability based on the laws of human
relations remains."

Thus it allowed the appeal to proceed with respect to the civil liability of the accused, notwithstanding the extinction of his
criminal liability due to his death pending appeal of his conviction.

To further justify its decision to allow the civil liability to survive, the court relied on the following ratiocination: Since Section
21, Rule 3 of the Rules of Court 9 requires the dismissal of all money claims against the defendant whose death occurred prior to
the final judgment of the Court of First Instance (CFI), then it can be inferred that actions for recovery of money may continue to
be heard on appeal, when the death of the defendant supervenes after the CFI had rendered its judgment. In such case,
explained this tribunal, "the name of the offended party shall be included in the title of the case as plaintiff-appellee and the
legal representative or the heirs of the deceased-accused should be substituted as defendants-appellants."

It is, thus, evident that as jurisprudence evolved from Castillo to Torrijos, the rule established was that the survival of the civil
liability depends on whether the same can be predicated on sources of obligations other than delict. Stated differently, the claim
for civil liability is also extinguished together with the criminal action if it were solely based thereon, i.e., civil liability ex delicto.

However, the Supreme Court in People v. Sendaydiego, et al. 10 departed from this long-established principle of law. In this case,
accused Sendaydiego was charged with and convicted by the lower court of malversation thru falsification of public documents.
Sendaydiego's death supervened during the pendency of the appeal of his conviction.

This court in an unprecedented move resolved to dismiss Sendaydiego's appeal but only to the extent of his criminal liability.
His civil liability was allowed to survive although it was clear that such claim thereon was exclusively dependent on the criminal
action already extinguished. The legal import of such decision was for the court to continue exercising appellate jurisdiction
over the entire appeal, passing upon the correctness of Sendaydiego's conviction despite dismissal of the criminal action, for the
purpose of determining if he is civilly liable. In doing so, this Court issued a Resolution of July 8, 1977 stating thus:

The claim of complainant Province of Pangasinan for the civil liability survived Sendaydiego because his death
occurred after final judgment was rendered by the Court of First Instance of Pangasinan, which convicted him
of three complex crimes of malversation through falsification and ordered him to indemnify the Province in the
total sum of P61,048.23 (should be P57,048.23).

The civil action for the civil liability is deemed impliedly instituted with the criminal action in the absence of
express waiver or its reservation in a separate action (Sec. 1, Rule 111 of the Rules of Court). The civil action for
the civil liability is separate and distinct from the criminal action (People and Manuel vs. Coloma, 105 Phil. 1287;
Roa vs. De la Cruz, 107 Phil. 8).

When the action is for the recovery of money and the defendant dies before final judgment in the Court of First
Instance, it shall be dismissed to be prosecuted in the manner especially provided in Rule 87 of the Rules of
Court (Sec. 21, Rule 3 of the Rules of Court).

The implication is that, if the defendant dies after a money judgment had been rendered against him by the
Court of First Instance, the action survives him. It may be continued on appeal (Torrijos vs. Court of Appeals, L-
40336, October 24, 1975; 67 SCRA 394).

The accountable public officer may still be civilly liable for the funds improperly disbursed although he has no
criminal liability (U.S. vs. Elvina, 24 Phil. 230; Philippine National Bank vs. Tugab, 66 Phil. 583).

In view of the foregoing, notwithstanding the dismissal of the appeal of the deceased Sendaydiego insofar as his
criminal liability is concerned, the Court Resolved to continue exercising appellate jurisdiction over his possible
civil liability for the money claims of the Province of Pangasinan arising from the alleged criminal acts
complained of, as if no criminal case had been instituted against him, thus making applicable, in determining
his civil liability, Article 30 of the Civil Code . . . and, for that purpose, his counsel is directed to inform this
Court within ten (10) days of the names and addresses of the decedent's heirs or whether or not his estate is
under administration and has a duly appointed judicial administrator. Said heirs or administrator will be
substituted for the deceased insofar as the civil action for the civil liability is concerned (Secs. 16 and 17, Rule 3,
Rules of Court).

Succeeding cases 11 raising the identical issue have maintained adherence to our ruling in Sendaydiego; in other words, they were
a reaffirmance of our abandonment of the settled rule that a civil liability solely anchored on the criminal (civil liability ex delicto)
is extinguished upon dismissal of the entire appeal due to the demise of the accused.

But was it judicious to have abandoned this old ruling? A re-examination of our decision in Sendaydiego impels us to revert to the
old ruling.
To restate our resolution of July 8, 1977 in Sendaydiego: The resolution of the civil action impliedly instituted in the criminal
action can proceed irrespective of the latter's extinction due to death of the accused pending appeal of his conviction, pursuant
to Article 30 of the Civil Code and Section 21, Rule 3 of the Revised Rules of Court.

Article 30 of the Civil Code provides:

When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal
proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be
sufficient to prove the act complained of.

Clearly, the text of Article 30 could not possibly lend support to the ruling in Sendaydiego. Nowhere in its text is there a grant of
authority to continue exercising appellate jurisdiction over the accused's civil liability ex delicto when his death supervenes
during appeal. What Article 30 recognizes is an alternative and separate civil action which may be brought to demand civil
liability arising from a criminal offense independently of any criminal action. In the event that no criminal proceedings are
instituted during the pendency of said civil case, the quantum of evidence needed to prove the criminal act will have to be that
which is compatible with civil liability and that is, preponderance of evidence and not proof of guilt beyond reasonable doubt.
Citing or invoking Article 30 to justify the survival of the civil action despite extinction of the criminal would in effect merely
beg the question of whether civil liability ex delicto survives upon extinction of the criminal action due to death of the accused
during appeal of his conviction. This is because whether asserted in
the criminal action or in a separate civil action, civil liability ex delicto is extinguished by the death of the accused while his
conviction is on appeal. Article 89 of the Revised Penal Code is clear on this matter:

Art. 89. How criminal liability is totally extinguished. Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is
extinguished only when the death of the offender occurs before final judgment;

xxx xxx xxx

However, the ruling in Sendaydiego deviated from the expressed intent of Article 89. It allowed claims for civil liability ex
delicto to survive by ipso facto treating the civil action impliedly instituted with the criminal, as one filed under Article 30, as
though no criminal proceedings had been filed but merely a separate civil action. This had the effect of converting such claims
from one which is dependent on the outcome of the criminal action to an entirely new and separate one, the prosecution of
which does not even necessitate the filing of criminal proceedings. 12 One would be hard put to pinpoint the statutory authority
for such a transformation. It is to be borne in mind that in recovering civil liability ex delicto, the same has perforce to be
determined in the criminal action, rooted as it is in the court's pronouncement of the guilt or innocence of the accused. This is
but to render fealty to the intendment of Article 100 of the Revised Penal Code which provides that "every person criminally
liable for a felony is also civilly liable." In such cases, extinction of the criminal action due to death of the accused pending
appeal inevitably signifies the concomitant extinction of the civil liability. Mors Omnia Solvi. Death dissolves all things.

In sum, in pursuing recovery of civil liability arising from crime, the final determination of the criminal liability is a condition
precedent to the prosecution of the civil action, such that when the criminal action is extinguished by the demise of accused-
appellant pending appeal thereof, said civil action cannot survive. The claim for civil liability springs out of and is dependent
upon facts which, if true, would constitute a crime. Such civil liability is an inevitable consequence of the criminal liability and is
to be declared and enforced in the criminal proceeding. This is to be distinguished from that which is contemplated under
Article 30 of the Civil Code which refers to the institution of a separate civil action that does not draw its life from a criminal
proceeding. The Sendaydiego resolution of July 8, 1977, however, failed to take note of this fundamental distinction when it
allowed the survival of the civil action for the recovery of civil liability ex delicto by treating the same as a separate civil action
referred to under Article 30. Surely, it will take more than just a summary judicial pronouncement to authorize the conversion of
said civil action to an independent one such as that contemplated under Article 30.

Ironically however, the main decision in Sendaydiego did not apply Article 30, the resolution of July 8, 1977 notwithstanding.
Thus, it was held in the main decision:
 Sendaydiego's appeal will be resolved only for the purpose of showing his criminal liability which is the basis of
the civil liability for which his estate would be liable. 13

In other words, the Court, in resolving the issue of his civil liability, concomitantly made a determination on whether
Sendaydiego, on the basis of evidenced adduced, was indeed guilty beyond reasonable doubt of committing the offense
charged. Thus, it upheld Sendaydiego's conviction and pronounced the same as 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
criminal action already extinguished which served as basis for Sendaydiego's civil liability. We reiterate: Upon death of the
accused pending appeal of his conviction, the criminal action is extinguished inasmuch as there is no longer a defendant to
stand as the accused; the civil action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded
as it is on the criminal.

Section 21, Rule 3 of the Rules of Court was also invoked to serve as another basis for the Sendaydiego resolution of July 8, 1977.
In citing Sec. 21, Rule 3 of the Rules of Court, the Court made the inference that civil actions of the type involved
in Sendaydiego consist of money claims, the recovery of which may be continued on appeal if defendant dies pending appeal of
his conviction by holding his estate liable therefor. Hence, the Court's conclusion:

"When the action is for the recovery of money" "and the defendant dies before final judgment in the court of
First Instance, it shall be dismissed to be prosecuted in the manner especially provided" in Rule 87 of the Rules
of Court (Sec. 21, Rule 3 of the Rules of Court).

The implication is that, if the defendant dies after a money judgment had been rendered against him by the
Court of First Instance, the action survives him. It may be continued on appeal.

Sadly, reliance on this provision of law is misplaced. From the standpoint of procedural law, this course taken
in Sendaydiego cannot be sanctioned. As correctly observed by Justice Regalado:

xxx xxx xxx

I do not, however, agree with the justification advanced in both Torrijos and Sendaydiego which, relying on the
provisions of Section 21, Rule 3 of the Rules of Court, drew the strained implication therefrom that where the
civil liability instituted together with the criminal liabilities had already passed beyond the judgment of the then
Court of First Instance (now the Regional Trial Court), the Court of Appeals can continue to exercise appellate
jurisdiction thereover despite the extinguishment of the component criminal liability of the deceased. This
pronouncement, which has been followed in the Court's judgments subsequent and consonant
to Torrijos and Sendaydiego, should be set aside and abandoned as being clearly erroneous and unjustifiable.

Said Section 21 of Rule 3 is a rule of civil procedure in ordinary civil actions. There is neither authority nor
justification for its application in criminal procedure to civil actions instituted together with and as part of
criminal actions. Nor is there any authority in law for the summary conversion from the latter category of an
ordinary civil action upon the death of the offender. . . .

Moreover, the civil action impliedly instituted in a criminal proceeding for recovery of civil liability ex delicto can hardly be
categorized as an ordinary money claim such as that referred to in Sec. 21, Rule 3 enforceable before the estate of the deceased
accused.

Ordinary money claims referred to in Section 21, Rule 3 must be viewed in light of the provisions of Section 5, Rule 86 involving
claims against the estate, which in Sendaydiego was held liable for Sendaydiego's civil liability. "What are contemplated in
Section 21 of Rule 3, in relation to Section 5 of Rule 86, 14 are contractual money claims while the claims involved in civil
liability ex delicto may include even the restitution of personal or real property." 15 Section 5, Rule 86 provides an exclusive
enumeration of what claims may be filed against the estate. These are: funeral expenses, expenses for the last illness, judgments
for money and claim arising from contracts, expressed or implied. It is clear that money claims arising from delict do not form
part of this exclusive enumeration. Hence, there could be no legal basis in (1) treating a civil action ex delicto as an ordinary
contractual money claim referred to in Section 21, Rule 3 of the Rules of Court and (2) allowing it to survive by filing a claim
therefor before the estate of the deceased accused. Rather, it should be extinguished upon extinction of the criminal action
engendered by the death of the accused pending finality of his conviction.

Accordingly, we rule: if the private offended party, upon extinction of the civil liability ex delicto desires to recover damages
from the same act or omission complained of, he must subject to Section 1, Rule 111 16 (1985 Rules on Criminal Procedure as
amended) file a separate civil action, this time predicated not on the felony previously charged but on other sources of
obligation. The source of obligation upon which the separate civil action is premised determines against whom the same shall be
enforced.

If the same act or omission complained of also arises from quasi-delict or may, by provision of law, result in an injury to person
or property (real or personal), the separate civil action must be filed against the executor or administrator 17 of the estate of the
accused pursuant to Sec. 1, Rule 87 of the Rules of Court:

Sec. 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim
for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator;
but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced
against him.

This is in consonance with our ruling in Belamala 18 where we held that, in recovering damages for injury to persons thru an
independent civil action based on Article 33 of the Civil Code, the same must be filed against the executor or administrator of
the estate of deceased accused and not against the estate under Sec. 5, Rule 86 because this rule explicitly limits the claim to
those for funeral expenses, expenses for the last sickness of the decedent, judgment for money and claims arising from contract,
express or implied. Contractual money claims, we stressed, refers only to purely personal obligations other than those which have
their source in delict or tort.

Conversely, if the same act or omission complained of also arises from contract, the separate civil action must be filed against the
estate of the accused, pursuant to Sec. 5, Rule 86 of the Rules of Court.

From this lengthy disquisition, we summarize our ruling herein:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based
solely thereon. As opined by Justice Regalado, in this regard, "the death of the accused prior to final judgment terminates his
criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex
delicto in senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated on a
source of obligation other than delict. 19 Article 1157 of the Civil Code enumerates these other sources of obligation from which
the civil liability may arise as a result of the same act or omission:

a) Law 20

b) Contracts

c) Quasi-contracts

d) . . .

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued but only by
way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This
separate civil action may be enforced either against the executor/administrator or the estate of the accused, depending on the
source of obligation upon which the same is based as explained above.
4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by prescription, in
cases where during the prosecution of the criminal action and prior to its extinction, the private-offended party instituted
together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during the
pendency of the criminal case, conformably with provisions of Article 1155 21 of the Civil Code, that should thereby avoid any
apprehension on a possible privation of right by prescription. 22

Applying this set of rules to the case at bench, we hold that the death of appellant Bayotas extinguished his criminal liability and
the civil liability based solely on the act complained of, i.e., rape. Consequently, the appeal is hereby dismissed without
qualification.

WHEREFORE, the appeal of the late Rogelio Bayotas is DISMISSED with costs de oficio.

SO ORDERED.

002. G.R. No. 167571, November 25, 2008

LUIS PANAGUITON, JR. vs. DOJ, RAMON C. TONGSON and RODRIGO G. CAWILI

This is a Petition for Review1 of the resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 in CA G.R. SP
No. 87119, which dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and his subsequent motion for
reconsideration.2

The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money amounting to P1,979,459.00 from petitioner. On 8 January
1993, Cawili and his business associate, Ramon C. Tongson (Tongson), jointly issued in favor of petitioner three (3) checks in
payment of the said loans. Significantly, all three (3) checks bore the signatures of both Cawili and Tongson. Upon presentment
for payment on 18 March 1993, the checks were dishonored, either for insufficiency of funds or by the closure of the account.
Petitioner made formal demands to pay the amounts of the checks upon Cawili on 23 May 1995 and upon Tongson on 26 June
1995, but to no avail.3

On 24 August 1995, petitioner filed a complaint against Cawili and Tongson4 for violating Batas Pambansa Bilang 22 (B.P. Blg.
22)5 before the Quezon City Prosecutor's Office. During the preliminary investigation, only Tongson appeared and filed his
counter-affidavit.6 Tongson claimed that he had been unjustly included as party-respondent in the case since petitioner had lent
money to Cawili in the latter's personal capacity. Moreover, like petitioner, he had lent various sums to Cawili and in
appreciation of his services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was not Cawili's business associate; in fact, he himself had
filed several criminal cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he had issued the bounced checks
and pointed out that his signatures on the said checks had been falsified.

To counter these allegations, petitioner presented several documents showing Tongson's signatures, which were purportedly the
same as the those appearing on the checks.7 He also showed a copy of an affidavit of adverse claim wherein Tongson himself
had claimed to be Cawili's business associate.8

In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V. Lara found probable cause only against Cawili and
dismissed the charges against Tongson. Petitioner filed a partial appeal before the Department of Justice (DOJ) even while the
case against Cawili was filed before the proper court. In a letter-resolution dated 11 July 1997,10 after finding that it was possible
for Tongson to co-sign the bounced checks and that he had deliberately altered his signature in the pleadings submitted during
the preliminary investigation, Chief State Prosecutor Jovencito R. Zuo directed the City Prosecutor of Quezon City to conduct a
reinvestigation of the case against Tongson and to refer the questioned signatures to the National Bureau of Investigation (NBI).

Tongson moved for the reconsideration of the resolution, but his motion was denied for lack of merit.
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP Sampaga) dismissed the complaint against Tongson
without referring the matter to the NBI per the Chief State Prosecutor's resolution. In her resolution, 11 ACP Sampaga held that
the case had already prescribed pursuant to Act No. 3326, as amended,12 which provides that violations penalized by B.P. Blg. 22
shall prescribe after four (4) years. In this case, the four (4)-year period started on the date the checks were dishonored, or on 20
January 1993 and 18 March 1993. The filing of the complaint before the Quezon City Prosecutor on 24 August 1995 did not
interrupt the running of the prescriptive period, as the law contemplates judicial, and not administrative proceedings. Thus,
considering that from 1993 to 1998, more than four (4) years had already elapsed and no information had as yet been filed
against Tongson, the alleged violation of B.P. Blg. 22 imputed to him had already prescribed. 13 Moreover, ACP Sampaga stated
that the order of the Chief State Prosecutor to refer the matter to the NBI could no longer be sanctioned under Section 3, Rule 112
of the Rules of Criminal Procedure because the initiative should come from petitioner himself and not the investigating
prosecutor.14 Finally, ACP Sampaga found that Tongson had no dealings with petitioner.15

Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J. Teehankee, dismissed the same, stating that
the offense had already prescribed pursuant to Act No. 3326.16Petitioner filed a motion for reconsideration of the DOJ resolution.
On 3 April 2003,17 the DOJ, this time through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor and declared
that the offense had not prescribed and that the filing of the complaint with the prosecutor's office interrupted the running of the
prescriptive period citing Ingco v. Sandiganbayan.18 Thus, the Office of the City Prosecutor of Quezon City was directed to file
three (3) separate informations against Tongson for violation of B.P. Blg. 22.19 On 8 July 2003, the City Prosecutor's Office filed an
information20 charging petitioner with three (3) counts of violation of B.P. Blg. 22.21

However, in a resolution dated 9 August 2004,22 the DOJ, presumably acting on a motion for reconsideration filed by Tongson,
ruled that the subject offense had already prescribed and ordered "the withdrawal of the three (3) informations for violation of
B.P. Blg. 22" against Tongson. In justifying its sudden turnabout, the DOJ explained that Act No. 3326 applies to violations of
special acts that do not provide for a prescriptive period for the offenses thereunder. Since B.P. Blg. 22, as a special act, does not
provide for the prescription of the offense it defines and punishes, Act No. 3326 applies to it, and not Art. 90 of the Revised Penal
Code which governs the prescription of offenses penalized thereunder.23 The DOJ also cited the case of Zaldivia v. Reyes,
Jr.,24 wherein the Supreme Court ruled that the proceedings referred to in Act No. 3326, as amended, are judicial proceedings,
and not the one before the prosecutor's office.

Petitioner thus filed a petition for certiorari25 before the Court of Appeals assailing the 9 August 2004 resolution of the DOJ. The
petition was dismissed by the Court of Appeals in view of petitioner's failure to attach a proper verification and certification of
non-forum

shopping. The Court of Appeals also noted that the 3 April 2003 resolution of the DOJ attached to the petition is a mere
photocopy.26 Petitioner moved for the reconsideration of the appellate court's resolution, attaching to said motion an amended
Verification/Certification of Non-Forum Shopping.27Still, the Court of Appeals denied petitioner's motion, stating that
subsequent compliance with the formal requirements would not per se warrant a reconsideration of its resolution. Besides, the
Court of Appeals added, the petition is patently without merit and the questions raised therein are too unsubstantial to require
consideration.28

In the instant petition, petitioner claims that the Court of Appeals committed grave error in dismissing his petition on technical
grounds and in ruling that the petition before it was patently without merit and the questions are too unsubstantial to require
consideration.

The DOJ, in its comment,29 states that the Court of Appeals did not err in dismissing the petition for non-compliance with the
Rules of Court. It also reiterates that the filing of a complaint with the Office of the City Prosecutor of Quezon City does not
interrupt the running of the prescriptive period for violation of B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law which
does not provide for its own prescriptive period, offenses prescribe in four (4) years in accordance with Act No. 3326.

Cawili and Tongson submitted their comment, arguing that the Court of Appeals did not err in dismissing the petition for
certiorari. They claim that the offense of violation of B.P. Blg. 22 has already prescribed per Act No. 3326. In addition, they claim
that the long delay, attributable to petitioner and the State, violated their constitutional right to speedy disposition of cases. 30

The petition is meritorious.

First on the technical issues.

Petitioner submits that the verification attached to his petition before the Court of Appeals substantially complies with the rules,
the verification being intended simply to secure an assurance that the allegations in the pleading are true and correct and not a
product of the imagination or a matter of speculation. He points out that this Court has held in a number of cases that a
deficiency in the verification can be excused or dispensed with, the defect being neither jurisdictional nor always fatal. 31

Indeed, the verification is merely a formal requirement intended to secure an assurance that matters which are alleged are true
and correctthe court may simply order the correction of unverified pleadings or act on them and waive strict compliance with
the rules in order that the ends of justice may be served,32 as in the instant case. In the case at bar, we find that by attaching the
pertinent verification to his motion for reconsideration, petitioner sufficiently complied with the verification requirement.

Petitioner also submits that the Court of Appeals erred in dismissing the petition on the ground that there was failure to attach a
certified true copy or duplicate original of the 3 April 2003 resolution of the DOJ. We agree. A plain reading of the petition before
the

Court of Appeals shows that it seeks the annulment of the DOJ resolution dated 9 August 2004, 33 a certified true copy of which
was attached as Annex "A."34 Obviously, the Court of Appeals committed a grievous mistake.

Now, on the substantive aspects.

Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case involving the violation of a municipal ordinance, in declaring
that the prescriptive period is tolled only upon filing of the information in court. According to petitioner, what is applicable in
this case is Ingco v. Sandiganbayan,36 wherein this Court ruled that the filing of the complaint with the fiscal's office for
preliminary investigation suspends the running of the prescriptive period. Petitioner also notes that the Ingco case similarly
involved the violation of a special law, Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices
Act, petitioner notes.37 He argues that sustaining the DOJ's and the Court of Appeals' pronouncements would result in grave
injustice to him since the delays in the present case were clearly beyond his control.38

There is no question that Act No. 3326, appropriately entitled An Act to Establish Prescription for Violations of Special Acts and
Municipal Ordinances and to Provide When Prescription Shall Begin, is the law applicable to offenses under special laws which do
not provide their own prescriptive periods. The pertinent provisions read:

Section 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with
the following rules: (a) x x x; (b) after four years for those punished by imprisonment for more than one month, but less
than two years; (c) x x x

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and
punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run
again if the proceedings are dismissed for reasons not constituting jeopardy.

We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22. An offense under B.P. Blg. 22 merits the penalty of
imprisonment of not less than thirty (30) days but not more than one year or by a fine, hence, under Act No. 3326, a
violation of B.P. Blg. 22 prescribes in four (4) years from the commission of the offense or, if the same be not known at
the time, from the discovery thereof. Nevertheless, we cannot uphold the position that only the filing of a case in court
can toll the running of the prescriptive period.

It must be pointed out that when Act No. 3326 was passed on 4 December 1926, preliminary investigation of criminal offenses
was conducted by justices of the peace, thus, the phraseology in the law, "institution of judicial proceedings for its investigation
and punishment,"39 and the prevailing rule at the time was that once a complaint is filed with the justice of the peace for
preliminary investigation, the prescription of the offense is halted.40
The historical perspective on the application of Act No. 3326 is illuminating.41 Act No. 3226 was approved on 4 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, the prevailing rule at the time, as shown in the cases of U.S. v. Lazada42 and People v. Joson,43 is that the prescription of the
offense is tolled once a complaint is filed with the justice of the peace for preliminary investigation inasmuch as the filing of the
complaint signifies the

institution of the criminal proceedings against the accused. 44 These cases were followed by our declaration in People v. Parao and
Parao45 that the first step taken in the investigation or examination of offenses partakes the nature of a judicial proceeding which
suspends the prescription of the offense.46 Subsequently, in People v. Olarte,47 we held that the filing of the complaint in the
Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the
period of prescription of the criminal responsibility, even if the court where the complaint or information is filed cannot try the
case on the merits. In addition, even if the court where the complaint or information is filed may only proceed to investigate the
case, its actuations already represent the initial step of the proceedings against the offender, 48 and hence, the prescriptive period
should be interrupted.

In Ingco v. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which involved violations of the Anti-Graft and Corrupt Practices
Act (R.A. No. 3019) and the Intellectual Property Code (R.A. No. 8293), which are both special laws, the Court ruled that the

prescriptive period is interrupted by the institution of proceedings for preliminary investigation against the accused. In the more
recent case of Securities and Exchange Commission v. Interport Resources Corporation, et al.,51 the Court ruled that the nature and
purpose of the investigation conducted by the Securities and Exchange Commission on violations of the Revised Securities
Act,52 another special law, is equivalent to the preliminary investigation conducted by the DOJ in criminal cases, and thus
effectively interrupts the prescriptive period.

The following disquisition in the Interport Resources case53 is instructive, thus:

While it may be observed that the term "judicial proceedings" in Sec. 2 of Act No. 3326 appears before "investigation and
punishment" in the old law, with the subsequent change in set-up whereby the investigation of the charge for purposes
of prosecution has become the exclusive function of the executive branch, the term "proceedings" should now be
understood either executive or judicial in character: executive when it involves the investigation phase and judicial
when it refers to the trial and judgment stage. With this clarification, any kind of investigative proceeding instituted
against the guilty person which may ultimately lead to his prosecution should be sufficient to toll prescription. 54

Indeed, to rule otherwise would deprive the injured party the right to obtain vindication on account of delays that are not under
his control.55 A clear example would be this case, wherein petitioner filed his complaint-affidavit on 24 August 1995, well within
the four (4)-year prescriptive period. He likewise timely filed his appeals and his motions for reconsideration on the dismissal of
the charges against

Tongson. He went through the proper channels, within the prescribed periods. However, from the time petitioner filed his
complaint-affidavit with the Office of the City Prosecutor (24 August 1995) up to the time the DOJ issued the assailed resolution,
an aggregate period of nine (9) years had elapsed. Clearly, the delay was beyond petitioner's control. After all, he had already
initiated the active prosecution of the case as early as 24 August 1995, only to suffer setbacks because of the DOJ's flip-flopping
resolutions and its misapplication of Act No. 3326. Aggrieved parties, especially those who do not sleep on their rights and
actively pursue their causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their
control, like the accused's delaying tactics or the delay and inefficiency of the investigating agencies.

We rule and so hold that the offense has not yet prescribed. Petitioner 's filing of his complaint-affidavit before the Office of the
City Prosecutor on 24 August 1995 signified the commencement of the proceedings for the prosecution of the accused and thus
effectively interrupted the prescriptive period for the offenses they had been charged under B.P. Blg. 22. Moreover, since there is
a definite finding of probable cause, with the debunking of the claim of prescription there is no longer any impediment to the
filing of the information against petitioner.

WHEREFORE, the petition is GRANTED. The resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 are
REVERSED and SET ASIDE. The resolution of the Department of Justice dated 9 August 2004 is also ANNULLED and SET
ASIDE. The Department of Justice is ORDERED to REFILE the information against the petitioner.
No costs.

SO ORDERED.

003. G.R. No. 141931. December 4, 2000

ANICETO RECEBIDO vs. PEOPLE OF THE PHILIPPINES

This is a petition for review on certiorari assailing the Decision of the Court of Appeals in C.A.-G.R. CR No. 21347 entitled People
of the Philippines versus Aniceto Recebido, dated September 9, 1999 which found petitioner guilty beyond reasonable doubt of
Falsification of Public Document; and its Resolution dated February 15, 2000 denying petitioners motion for reconsideration.

The antecedent facts are the following, to wit:

On September 9, 1990, private complainant Caridad Dorol went to the house of her cousin, petitioner Aniceto Recebido, at San
Isidro, Bacon, Sorsogon to redeem her property, an agricultural land with an area of 3,520 square meters located at San Isidro,
Bacon, Sorsogon, which Caridad Dorol mortgaged to petitioner sometime in April of 1985. Petitioner and Caridad Dorol did not
execute a document on the mortgage but Caridad Dorol instead gave petitioner a copy of the Deed of Sale dated June 16, 1973
(Exhibit A) executed in her favor by her father, Juan Dorol.

In said confrontation, petitioner refused to allow Caridad Dorol to redeem her property on his claim that she had sold her
property to him in 1979. Caridad Dorol maintained and insisted that the transaction between them involving her property was a
mortgage.

Caridad Dorol verified from the Office of the Assessor in Sorsogon that there exists on its file a Deed of Sale dated August 13,
1979 (Exhibit J), allegedly executed by Caridad Dorol in favor of petitioner and that the property was registered in the latters
name. After comparison of the specimen signatures of Caridad Dorol in other documents (Exhibits K to K-10) with that of the
signature of Caridad Dorol on the questioned Deed of Sale, NBI Document Examiner Antonio Magbojas, found that the latter
signature was falsified (Exhibits L-1 to L-2).

Thereafter, Caridad Dorol filed her complaint against petitioner Aniceto Recebido with the National Bureau of Investigation
(NBI), Legaspi City and its Questioned Documents Division conducted an examination in the original copy of the Deed of Sale
in question allegedly signed by Caridad, particularly her signature affixed thereon.

Mr. Magbojas report was approved by the Chief of the Questioned Documents Division, Arcadio Ramos, and the Deputy
Director of Technical Services, Manuel Roura, both of the NBI.[1]

Thus, the Office of the Provincial Prosecutor of Sorsogon filed the information indicting petitioner for Falsification of Public
Document with the Regional Trial Court, 5th Judicial Region, Branch 51, Sorsogon, Sorsogon, reading as follows:

That on or about the 13th day of August, 1979, in the Municipality of Sorsogon, Province of Sorsogon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being a private individual, did then and there, willfully,
unlawfully and feloniously, with intent to defraud, falsify and/or imitate the signature of one Caridad Dorol and/or cause it to
appear that said Caridad Dorol has signed her name on a Deed of Absolute Sale of Real Property in favor of the herein accused
and Notarized as Doc. No. 680; page No. 54; Boon No. XIV and Series of 1979 of the Registry of Notary Public Dominador S.
Reyes, when in truth and in fact accused well knew, that Caridad Dorol did not execute said document, to the damage and
prejudice of the latter.

Contrary to law.[2]

Upon arraignment, petitioner pleaded not guilty.

 As narrated by the Court of Appeals, the petitioner contends that the land in question was mortgaged to him by Juan Dorol,
the father of Caridad, on February 25, 1977 and was subsequently sold to him on August 13, 1983 although it was made to
appear that the deed of sale was executed on August 13, 1979. It was also on the said date that Recebido gave Caridad the
amount of P1,000.00 in addition to the P2,600.00 mortgage price given to Juan Dorol which culminated into the execution of the
Deed of Sale signed by Caridad.[3]

After trial on the merits, the trial court rendered the decision on December 2, 1996, convicting petitioner of the crime
charged and sentencing him as follows:

ACCORDINGLY, accused ANECITO RECEBIDO is sentenced to an indeterminate penalty of one (1) year to three (3) years and
six (6) months of prision correccional as maximum and to pay a fine ofThree Thousand (P3,000.00) Pesos, with subsidiary
imprisonment.

Accused is ordered to pay P5,000.00 damages and to vacate the land in question owned by the offended party.

SO ORDERED.[4]

On appeal, the Court of Appeals affirmed with modification the decision of the trial court, the dispositive portion of which
reads:

WHEREFORE, with the modification that the award for damages is DELETED, the assailed judgment is AFFIRMED in all other
respects.

SO ORDERED.[5]

The petitioner raises his case before this Court seeking the reversal of the assailed decision and resolution of the Court of
Appeals. Based on his petition, the following issues are before this Court:

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 grave abuse of discretion in sustaining the conviction of the
petitioner?

3. Whether or not the Court of Appeals committed grievous error in affirming the decision of the trial court for the
petitioner to vacate the land in question owned by the offended party?

We rule in the negative on the three issues.

On the first issue: While the defense of prescription of the crime was raised only during the motion for reconsideration of
the decision of the Court of Appeals, there was no waiver of the defense.Under the Rules of Court, the failure of the accused to
assert the ground of extinction of the offense, inter alia, in a motion to quash shall not be deemed a waiver of such ground. [6] The
reason is that by prescription, the State or the People loses the right to prosecute the crime or to demand the service of the
penalty imposed.[7] Accordingly, prescription, although not invoked in the trial, may, as in this case, be invoked on appeal.
[8]
Hence, the failure to raise this defense in the motion to quash the information does not give rise to the waiver of the petitioner-
accused to raise the same anytime thereafter including during appeal.

Nonetheless, we hold that the crime charged has not prescribed. The petitioner is correct in stating that whether or not the
offense charged has already prescribed when the information was filed would depend on the penalty imposable therefor, which
in this case is prision correccional in its medium and maximum periods and a fine of not more than 5,000.00 pesos. [9] Under the
Revised Penal Code,[10] said penalty is a correctional penalty in the same way that the fine imposed is categorized as
correctional. Both the penalty and fine being correctional, the offense shall prescribe in ten years. [11] The issue that the petitioner
has missed, however, is the reckoning point of the prescriptive period. The petitioner is of the impression that the ten-year
prescriptive period necessarily started at the time the crime was committed. This is inaccurate. Under Article 91 of the Revised
Penal Code, the period of prescription shall commence to run from the day on which the crime is discovered by the offended
party, the authorities, or their agents, x x x. In People v. Reyes,[12] this Court has declared that registration in public registry is a
notice to the whole world. The record is constructive notice of its contents as well as all interests, legal and equitable, included
therein. All persons are charged with knowledge of what it contains.
 The prosecution has established that private complainant Dorol did not sell the subject land to the petitioner-accused at
anytime and that sometime in 1983 the private complainant mortgaged the agricultural land to petitioner Recebido. It was only
on September 9, 1990, when she went to petitioner to redeem the land that she came to know of the falsification committed by
the petitioner. On the other hand, petitioner contends that the land in question was mortgaged to him by Juan Dorol, the father
of private complainant, and was subsequently sold to him on August 13, 1983. This Court notes that the private offended party
had no actual knowledge of the falsification prior to September 9, 1990. Meanwhile, assuming arguendo that the version of the
petitioner is believable, the alleged sale could not have been registered before 1983, the year the alleged deed of sale was
executed by the private complainant. Considering the foregoing, it is logical and in consonance with human experience to infer
that the crime committed was not discovered, nor could have been discovered, by the offended party before 1983. Neither could
constructive notice by registration of the forged deed of sale, which is favorable to the petitioner since the running of the
prescriptive period of the crime shall have to be reckoned earlier, have been done before 1983 as it is impossible for the
petitioner to have registered the deed of sale prior thereto. Even granting arguendo that the deed of sale was executed by the
private complainant, delivered to the petitioner-accused in August 13, 1983 and registered on the same day, the ten-year
prescriptive period of the crime had not yet elapsed at the time the information was filed in 1991. The inevitable conclusion,
therefore, is that the crime had not prescribed at the time of the filing of the information.

On the second issue: We hold that the Court of Appeals did not commit any grave abuse of discretion when it affirmed
petitioners conviction by the trial court. The petitioner admits that the deed of sale that was in his possession is a forged
document as found by the trial and appellate court. [13] Petitioner, nonetheless, argues that notwithstanding this admission, the
fact remains that there is no proof that the petitioner authored such falsification or that the forgery was done under his
direction. This argument is without merit. Under the circumstance, there was no need of any direct proof that the petitioner was
the author of the forgery. As keenly observed by the Solicitor General, the questioned document was submitted by petitioner
himself when the same was requested by the NBI for examination. Clearly in possession of the falsified deed of sale was
petitioner and not Caridad Dorol who merely verified the questioned sale with the Provincial Assessors Office of Sorsogon. [14] In
other words, the petitioner was in possession of the forged deed of sale which purports to sell the subject land from the private
complainant to him. Given this factual backdrop, the petitioner is presumed to be the author of the forged deed of sale, despite
the absence of any direct evidence of his authorship of the forgery. Since the petitioner is the only person who stood to benefit
by the falsification of the document found in his possession, it is presumed that he is the material author of the falsification. [15] As
it stands, therefore, we are unable to discern any grave abuse of discretion on the part of the Court of Appeals.

On the third issue: Petitioner submits that the trial court is without jurisdiction to order petitioner to vacate the land in
question considering that the crime for which he is charged is falsification. [16] The petitioner insists that the civil aspect involved
in the criminal case at bar refer to the civil damages recoverable ex delito or arising from the causative act or omission. [17] In
addition, petitioner argues that he is entitled to possession as mortgagee since the private complainant has not properly
redeemed the property in question.

These are specious arguments. The petitioner based his claim of possession alternatively by virtue of two alternative
titles: one, based on the forged deed of sale and, two, as mortgagee of the land.As already discussed, the deed of sale was forged
and, hence, could not be a valid basis of possession. Neither could his status as mortgagee be the basis of possession since it is
the mortgagor in a contract of mortgage who is entitled to the possession of the property. We have taken note of the practice in
the provinces that in giving a realty for a collateral, possession usually goes with it. [18]Besides, even assuming that petitioner had
a right to possess the subject land, his possession became unlawful when the private complainant offered to redeem the property
and petitioner unjustly refused. Petitioner cannot profit from the effects of his crime. The trial court, therefore, did not commit
any error in ordering petitioner to vacate the subject property.

In view of the foregoing, this Court finds that the Court of Appeals did not commit any reversible error in its Decision
dated September 9, 1999 and its Resolution dated February 15, 2000.

ACCORDINGLY, the instant petition is DENIED for lack of merit.

SO ORDERED.

004. G.R. No. 141718. January 21, 2005

BENJAMIN PANGAN y RIVERA vs. HON. LOURDES F. GATBALITE, as the Presiding Judge, Regional Trial Court of Angeles
City, Branch 56, and COL. JAMES D. LABORDO, as the City Jail Warden of Angeles City
 Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing the
decision of the Regional Trial Court of Angeles City, Branch 56, rendered on January 31, 2000.[1]

The facts of this case are undisputed. The petitioner was indicted for simple seduction in Criminal Case No. 85-816, at the
Municipal Trial Court of Angeles City, Branch 3.

During the trial of the case, Atty. Eduardo Pineda, counsel for petitioner, submitted the case for decision without offering
any evidence, due to the petitioners 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 Court.

On August 9, 1991, the case was called for promulgation of the decision in the court of origin. Despite due notice, counsel
for the petitioner did not appear. Notice to petitioner was returned unserved with the notation that he no longer resided at the
given address. As a consequence, he also failed to appear at the scheduled promulgation. The court of origin issued an order
directing the recording of the decision in the criminal docket of the court and an order of arrest against the petitioner. [2]

Pursuant to the order of arrest, on January 20, 2000, the petitioner was apprehended and detained at the Mabalacat
Detention Cell. On January 24, 2000, petitioner filed a Petition for a Writ of Habeas Corpus at the Regional Trial Court of
Angeles City. He impleaded as respondent the Acting Chief of Police of Mabalacat, Pampanga. [3] Petitioner contended that his
arrest was illegal and unjustified on the grounds that:

(a) the straight penalty of two months and one day of arresto mayor prescribes in five years under No. 3, Article 93 [of the]
Revised Penal Code, and

(b) having been able to continuously evade service of sentence for almost nine years, his criminal liability has long been
totally extinguished under No. 6, Article 89 [of the] Revised Penal Code.[4]

After his transfer to the City Jail of Angeles City on January 25, 2000, petitioner filed an Amended Petition with the
Regional Trial Court, impleading herein respondent Col. James D. Labordo, the Jail Warden of Angeles City, as respondent. [5]

In response, the Jail Warden alleged that petitioners detention was pursuant to the order of commitment (mittimus), issued
by Marlon P. Roque, Clerk of Court III of the Municipal Trial Court of Angeles City, Branch 3, dated January 25, 2000. [6]

On January 31, 2000, respondent Judge rendered the decision, which is the subject of this present appeal, which
pronounced:

The Court cannot subscribe to the contention of the petitioner that the penalty imposed on him in the decision adverted to above
had already prescribed, hence, his detention is illegal for under Article 93 of the Revised Penal Code:

The period of prescription of penalties shall commence to run from the date when the culprit should evade the service of
sentence, and it shall be interrupted if the defendant should give himself up, be captured, should go to some foreign country
with which this Government has no extradition treaty, or should commit another crime before the expiration of the period of
prescription.

The elements of prescription are:

1. That the penalty is imposed by final judgment;

2. That convict evaded the service of the sentence by escaping during the term of his sentence;

3. That the convict who had escaped from prison has not given himself up, or been captured, or gone to a foreign
country with which we have no extradition treaty, or committed another crime;
 4. The penalty has prescribed, because of the lapse of time from the date of the evasion of the service of the
sentence by the convict.

In this case, the essential element of prescription which is the evasion of the service of sentence is absent. Admittedly, the
petitioner herein has not served the penalty imposed on him in prison and that during the service of the sentence, he escaped
therefrom. Notably, at the trial of Crim. Case No. 85-816 in the Municipal Trial Court, Branch III, Angeles City and on the date
set for the promulgation of the affirmed decision, the petitioner failed to appear and remained at large.

There was no evasion of the service of the sentence in this case, because such evasion presupposes escaping during the service of
the sentence consisting in deprivation of liberty. (Infante vs. Warden, 48 O.G. No. 122) (92 Phil. 310).

Corollarily, the detention of the petitioner in Angeles City Jail in compliance with the Order of Commitment (Exhibit E) is not
illegal for

A commitment in due form, based on a final judgment, convicting and sentencing the defendant in a criminal case, is conclusive
evidence of the legality of his detention, unless it appears that the court which pronounced the judgment was without
jurisdiction or exceeded it. (U.S. vs. Jayne, 24 Phil 90, 24 J.F. 94, Phil. Digest, Vol. 2, 1398).

WHEREFORE, for not being meritorious and well-founded, the petition for a writ of habeas corpus is hereby denied.

SO ORDERED.

Angeles City, January 31, 2000.[7]

From the above quoted decision, petitioner filed the instant petition for review on a question purely of law and raised the
following issue:

HOW SHOULD THE PHRASE SHALL COMMENCE TO RUN FROM THE DATE WHEN THE CULPRIT SHOULD EVADE
THE SERVICE OF SENTENCE IN ARTICLE 93 OF THE REVISED PENAL CODE ON THE COMPUTATION OF THE
PRESCRIPTION OF PENALTIES BE CONSTRUED? PUT A LITTLE DIFFERENTLY, WHEN DOES THE PRESCRIPTIVE
PERIOD OF PENALTIES BEGIN TO RUN?[8]

Petitioner claims that:

xxx the period for the computation of penalties under Article 93 of the Revised Penal Code begins to run from the moment the
judgment of conviction becomes final and the convict successfully evades, eludes, and dodges arrest for him to serve sentence. [9]

Petitioner supports his claim in the following manner:

The Decision subject of this appeal, which was based on the 1952 ruling rendered in Infante vs. Warden, 48 O.G. No. 122, 92 Phil.
310, is, petitioner most respectfully submits, not good case law. It imposes upon the convict a condition not stated in the law. It
is contrary to the spirit, nature or essence of prescription of penalties, creates an ambiguity in the law and opens the law to abuse
by government.

THE INFANTE RULING IMPOSES A

CONDITION NOT STATED IN THE LAW.

It appears that the Infante ruling imposes that, as an essential element, the convict must serve at least a few seconds, minutes,
days, weeks or years of his jail sentence and then escapes before the computation of prescription of penalties begins to run. This,
petitioner respectfully submits is not a condition stated in Article 93, 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 judgment of conviction
becomes final.

The dispute, however, is in the construction of the phrase should evade the service of sentence. When does the period of prescription
of penalties begin to run? The Infante ruling construes this to mean that the convict must escape from jail because such evasion
presupposes escaping during the service of the sentence consisting in deprivation of liberty.

Petitioner, with due respect, disagrees because if that were the intention of the law, then the phrase should evade the service of
sentence in Article 93 would have read: should escape during the service of the sentence consisting in deprivation of liberty. The
legislature could have very easily written Article 93 to read this way

The period of prescription of penalties shall commence to run from the date when the culprit should escape during the service
of the sentence consisting in deprivation of liberty, and it shall be interrupted if the defendant should give himself up, be
captured, should go to some foreign country with which this Government has no extradition treaty, or should commit another
crime before the expiration of the period of prescription.

But they did not.

The legislature wrote should evade the service of sentence to cover or include convicts like him who, although convicted by final
judgment, were never arrested or apprehended by government for the service of their sentence. With all the powers of
government at its disposal, petitioner was able to successfully evade service of his 2 months and 1 day jail sentence for at least
nine (9) years, from August 9, 1991 to January 20, 2000. This is approximately 3 years and 5 months longer than the 5-year
prescriptive period of the penalty imposed on him.

That, as the respondent RTC Judge noted, petitioner did not attend the trial at the Municipal Trial Court and the promulgation
of his judgment of conviction in August 9, 1991 is of no moment. His bond for provisional release was surely cancelled and an
order of arrest was surely issued against petitioner. The undisputed fact is that on August 9, 1991 the judgment of conviction
was promulgated in absentia and an order for petitioners arrest was issued by the Municipal Trial Court of Angeles City, Branch
III.

The duty of government, therefore, to arrest petitioner and compel him to serve his sentence began on August 9, 1991. The 5-year
prescriptive period of his arresto mayor penalty also began to run on that day considering that no relief was taken therefrom.
Since petitioner never gave himself up [n]or was [he], until January 20, 2000, ever captured, for the service of his sentence nor
did he flee to some foreign country with which [our] government has no extradition treaty, that 5-year prescriptive period of his
penalty ran continuously from August 9, 1991 when his judgment of conviction was promulgated in absentia and was never
interrupted.

For reasons known only to it, however, government failed or neglected, for almost nine (9) years, to arrest petitioner for the
service of his arresto mayor sentence [which] should not be taken against petitioner. He was able to successfully evade service of
his sentence for a period longer than the 5-year prescriptive period of his penalty and, as such, is entitled to total extinction of
his criminal liability.

To say, as was said in Infante, that the prescriptive period of the penalty never began to run in favor of petitioner because he
never escaped from jail during the service of his sentence imposes a condition not written in 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] prescription, in criminal cases.[10]

The Regional Trial Court based its decision on the case of Infante v. Warden[11]. In said case, Infante, the petitioner, was
convicted of murder and was sentenced to seventeen years, four months and one day of reclusion temporal. After serving fifteen
years, seven months and eleven days, he was granted a conditional pardon. The condition was that he shall not again violate any
of the penal laws of the Philippines. Ten years after his release on conditional pardon, Infante was found guilty by a Municipal
Court for driving without a license. Infante was immediately ordered rearrested for breach of the condition of his pardon. One
of the issues raised by Infante in his petition,
xxx was that the remitted penalty for which the petitioner had been recommitted to jail one year and 11 days had prescribed.
xxx [12]

The Court disagreed and reasoned out thus:

The contention is not well taken. According to article 93 of the Revised Penal Code the period of prescription of penalties
commences to run from the date when the culprit should evade the service of his sentence. It is evident from this provision that
evasion of the sentence is an essential element of prescription. There has been no such evasion in this case. Even if there had
been one and prescription were to be applied, its basis would have to be the evasion of the unserved sentence, and computation
could not have started earlier than the date of the order for the prisoner's rearrest. [13]

A perusal of the facts in Infante v. Warden reveals that it is not on all fours with the present case. In Infante, the convict was
on conditional pardon when he was re-arrested. Hence, he had started serving sentence but the State released him. In the
present case, the convict evaded service of sentence from the start, and was arrested eight years later.

The RTC decision, however, must stand, since it is in accord with applicable decisions of this Court. The issue raised by
petitioner is not novel. Article 93 of the Revised Penal Code[14] has been interpreted several times by the Court.

The case of Tanega v. Masakayan[15] falls squarely within the issues of the present case. In that case, petitioner Adelaida
Tanega failed to appear on the day of the execution of her sentence. On the same day, respondent judge issued a warrant for her
arrest. She was never arrested. More than a year later, petitioner through counsel moved to quash the warrant of arrest, on the
ground that the penalty had prescribed. Petitioner claimed that she was convicted for a light offense and since light offenses
prescribe in one year, her penalty had already prescribed. The Court disagreed, thus:

xxx The period of prescription of penalties the succeeding Article 93 provides "shall commence to run from the date when the
culprit should evade the service of his sentence". What then is the concept of evasion of service of sentence? Article 157 of the
Revised Penal Code furnishes the ready answer. Says Article 157:

"ART. 157. Evasion of service of sentence. The penalty of prision correccional in its medium and maximum periods shall be
imposed upon any convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of
final judgment. xxx"

Elements of evasion of service of sentence are: (1) the offender is a convict by final judgment; (2) he "is serving his sentence
which consists in deprivation of liberty"; and (3) he evades service of sentence by escaping during the term of his sentence. This
must be so. For, by the express terms of the statute, a convict evades "service of his sentence" by "escaping during the term of his
imprisonment by reason of final judgment." That escape should take place while serving sentence, is emphasized by the
provisions of the second sentence of Article 157 which provides for a higher penalty if such "evasion or escape shall have taken
place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or floors, or by using picklocks, false keys,
disguise, deceit, violence or intimidation, or through connivance with other convicts or employees of the penal institution, . . ."
Indeed, evasion of sentence is but another expression of the term "jail breaking."

xxx

We, therefore, rule that for prescription of penalty of imprisonment imposed by final sentence to commence to run, the culprit
should escape during the term of such imprisonment.

Adverting to the facts, we have here the case of a convict who sentenced to imprisonment by final judgment was thereafter
never placed in confinement. Prescription of penalty, then, does not run in her favor.[16]

In Del Castillo v. Torrecampo[17], the Court cited and reiterated Tanega. Petitioner, Del Castillo, was charged for violation of
Section 178 (nn) of the 1978 Election Code. The trial court found Del Castillo guilty beyond reasonable doubt and sentenced him
to suffer an indeterminate sentence of imprisonment of 1 year as minimum to 3 years as maximum. On appeal the Court of
Appeals affirmed the decision of the trial court in toto. During the execution of judgment on October 14, 1987, petitioner was not
present. The presiding Judge issued an order of arrest and the confiscation of his bond. Petitioner was never apprehended. Ten
years later, petitioner filed a motion to quash the warrant of arrest on the ground that the penalty imposed upon him had
already prescribed. The motion was denied by the trial court. Del Castillo, on a petition for certiorari to the Court of Appeals,
questioned the denial by the trial court. The Court of Appeals dismissed the petition for lack of merit. Upon denial of his Motion
for Reconsideration, Del Castillo raised the matter to this Court. The Court decided against Del Castillo and after quoting
the ratio decidendi of the Court of Appeals in full, it ratiocinated, thus:

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

The Court is unable to find and, in fact, does not perceive any compelling reason to deviate from our earlier pronouncement
clearly exemplified in the Tanega case.

Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under said provision, it
shall commence to run from the date the felon evades the service of his sentence. Pursuant to Article 157 of the same Code,
evasion of service of sentence can be committed only by those who have been convicted by final judgment by escaping during
the term of his sentence.

As correctly pointed out by the Solicitor General, "escape" in legal parlance and for purposes of Articles 93 and 157 of the RPC
means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot
be said to have escaped therefrom.

In the instant case, petitioner was never brought to prison. In fact, even before the execution of the judgment for his conviction,
he was already in hiding. Now petitioner begs for the compassion of the Court because he has ceased to live a life of peace and
tranquility after he failed to appear in court for the execution of his sentence. But it was petitioner who chose to become a
fugitive. The Court accords compassion only to those who are deserving. Petitioner's guilt was proven beyond reasonable doubt
but he refused to answer for the wrong he committed. He is therefore not to be rewarded therefor.

The assailed decision of the Court of Appeals is based on settled jurisprudence and applicable laws. It did not engage in judicial
legislation but correctly interpreted the pertinent laws. Because petitioner was never placed in confinement, prescription never
started to run in his favor.[18]

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. The period for prescription of penalties begins only when the convict evades service of sentence by
escaping during the term of his sentence. Since petitioner never suffered deprivation of liberty before his arrest on January 20,
2000 and as a consequence never evaded sentence by escaping during the term of his service, the period for prescription never
began.

Petitioner, however, has by this time fully served his sentence of two months and one day of arresto mayor and should
forthwith be released unless he is being detained for another offense or charge.

WHEREFORE, the decision of the Regional Trial Court of Angeles City, Branch 56 is AFFIRMED, but petitioner is ordered
released effective immediately for having fully served his sentence unless he is detained for another offense or charge.

No costs.

SO ORDERED.

005. G.R. No. 139033. December 18, 2002

JOVENDO DEL CASTILLO vs. HON. ROSARIO TORRECAMPO, Presiding Judge, RTC of Camarines Sur, Branch 33 and
PEOPLE OF THE PHILIPPINES

The instant petition is one for the review, by way of appeal by certiorari, of the Decision [1] of the Court of Appeals dated
November 20, 1998, and of the Resolution dated June 14, 1999 denying the motion for reconsideration thereof.

Petitioner was charged on March 8, 1983 with violation of Section 178 (nn) [2] of the 1978 Election Code in Criminal Case No.
F-1447 before Branch 33, Regional Trial Court, Camarines Sur. The Information alleged:
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 accused did, then and there
unlawfully conducted himself in a disorderly manner, by striking the electric bulb and two (2) kerosene petromax lamps
lighting the room where voting center no. 24 is located, during the counting of the votes in said voting center plunging the room
in complete darkness, thereby interrupting and disrupting the proceedings of the Board of Election Tellers. [3]

On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued.

On January 14, 1985, the trial court rendered judgment and declared petitioner guilty beyond reasonable doubt of violating
Section 178 (nn) of PD 1296, otherwise known as the 1978 Election Code, as amended, and sentenced petitioner to suffer the
indeterminate penalty of imprisonment of 1 year as minimum to 3 years as maximum.

Aggrieved, petitioner appealed his conviction to the Court of Appeals which eventually affirmed the decision of the trial
court in toto. Said decision became final and executory. Thus, the execution of judgment was scheduled on October 14, 1987.

On October 12, 1987, an urgent motion to reset the execution of judgment was submitted by petitioner through his
counsel. But it was denied for lack of merit.

During the execution of judgment, petitioner failed to appear which prompted the presiding judge to issue an order of
arrest of petitioner and the confiscation of his bond. However, petitioner was never apprehended. He remained at large.

Ten years later, on October 24, 1997, petitioner filed before the trial court a motion to quash the warrant issued for his arrest
on the ground of prescription of the penalty imposed upon him. However, it was denied. His motion for reconsideration thereof
was likewise denied.

Dissatisfied, petitioner filed with the Court of Appeals a Petition for Certiorari assailing the orders of the trial court denying
both his motion to quash the warrant of arrest and motion for reconsideration.

On November 20, 1998, the Court of Appeals rendered its now assailed decision dismissing the petition for lack of merit.

Following the denial of his motion for reconsideration, the instant petition was filed before us.

Petitioner asserts that the Court of Appeals gravely erred in holding that the penalty imposed upon petitioner has not
prescribed. Petitioner maintains that Article 93 of the Revised Penal Code provides that the period of 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 provision, engaged in judicial legislation when it added the phrase by escaping during the term of the
sentence thereto, so petitioner claims.

Going over the merits of the petition, the Court finds that the Court of Appeals did not err in dismissing the petition for
certiorari.

The threshold issue in the instant case is the interpretation of Article 93 of the Revised Penal Code in relation to Article 157
of the same Code.

In dismissing the petition, the Court of Appeals ruled:

Article 92 of the Revised Penal Code provides as follows:

When and how penalties prescribe The penalties imposed by the final sentence prescribed as follows:

1. Death and reclusion perpetua, in twenty years;

2. Other afflictive penalties, in fifteen years;

3. Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which prescribes in five
years;

4. Light penalties, in one year.

And Article 93 of the Revised Penal Code, provides as follows:

Computation of the prescription of penalties The period of prescription of penalties shall commence to run from the date when
the culprit should evade the service of his sentence, and it shall be interrupted if the defendant should give himself up, be
captured, should go to some foreign country with which his Government has no extradition treaty, or should commit another
crime before the expiration of the period of prescription.

The penalty imposed upon the petitioner is one (1) year of imprisonment as minimum to three (3) years of imprisonment as
maximum.

The law under which the petitioner was convicted is a special law, the 1978 Election Code. This law does not provide for the
prescription of penalties. This being the case, We have to apply the provision of the Revised Penal Code which allows the
application of said code in suppletory character when it provides that:

Offenses which are or in the future may be punishable under special laws are not subject to the provision of this code. This code
shall be supplementary to such laws, unless the latter should specially provide the contrary.

The penalty imposed upon the petitioner is a correctional penalty under Article 25 in relation to Article 27 of the Revised Penal
Code. Being a correctional penalty it prescribed in ten (10) years.

The petitioner was convicted by a final judgment on June 14, 1986. Such judgment would have been executed on October 14,
1986 but the accused did not appear for such proceeding. And he has never been apprehended.

The contention of the petitioner is that said judgment prescribed on October 24, 1996.

The issue here is whether or not the penalty imposed upon the petitioner has prescribed.

The elements in order that the penalty imposed has prescribed are as follows:

1. That the penalty is imposed by final sentence.

2. That the convict evaded the service of the sentence by escaping during the term of his sentence.

3. That the convict who escaped from prison has not given himself up, or been captured, or gone to a foreign country
with which we have no extradition treaty or committed another crime.

4. That the penalty has prescribed, because of the lapse of time form the date of the evasion of the service of the
sentence by the convict.

(p. 93, Revised Penal Code by L. Reyes 93 ed.)

From the foregoing elements, it is clear that the penalty imposed has not prescribed because the circumstances of the case at
bench failed to satisfy the second element, to wit That the convict evaded the service of the sentence by escaping during the
service of his sentence. As a matter of fact, the petitioner never served a single minute of his sentence.

The foregoing conclusion of the Court of Appeals is consistent with the ruling of this Court in Tanega vs. Masakayan, et. al.,
[4]
where we declared that, for prescription of penalty imposed by final sentence to commence to run, the culprit should escape
during the term of such imprisonment.

The Court is unable to find and, in fact, does not perceive any compelling reason to deviate from our earlier
pronouncement clearly exemplified in the Tanega case.

Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under said
provision, it shall commence to run from the date the felon evades the service of his sentence. Pursuant to Article 157 of the same
Code, evasion of service of sentence can be committed only by those who have been convicted by final judgment by escaping
during the term of his sentence.

As correctly pointed out by the Solicitor General, escape in legal parlance and for purposes of Articles 93 and 157 of the
RPC means unlawful departure of prisoner from the limits of his custody.Clearly, one who has not been committed to prison
cannot be said to have escaped therefrom.

In the instant case, petitioner was never brought to prison. In fact, even before the execution of the judgment for his
conviction, he was already in hiding. Now petitioner begs for the compassion of the Court because he has ceased to live a life of
peace and tranquility after he failed to appear in court for the execution of his sentence. But it was petitioner who chose to
become a fugitive. The Court accords compassion only to those who are deserving. Petitioners guilt was proven beyond
reasonable doubt but he refused to answer for the wrong he committed. He is therefore not to be rewarded therefor.

The assailed decision of the Court of Appeals is based on settled jurisprudence and applicable laws. It did not engage in
judicial legislation but correctly interpreted the pertinent laws. Because petitioner was never placed in confinement, prescription
never started to run in his favor.

WHEREFORE, for lack of merit, the petition is hereby DENIED.

SO ORDERED.

006. ARNEL COLINARES, G.R. No. 182748

This case is about a) the need, when invoking self-defense, to prove all that it takes; b) what distinguishes frustrated
homicide from attempted homicide; and c) when an accused who appeals may still apply for probation on remand of the case to
the trial court.

The Facts and the Case

The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with frustrated homicide before
the Regional Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-2213.[1]

Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000, he and Jesus Paulite (Jesus)
went out to buy cigarettes at a nearby store. On their way, Jesus took a leak by the roadside with Rufino waiting nearby. From
nowhere, Arnel sneaked behind and struck Rufino twice on the head with a huge stone, about 15 inches in diameter. Rufino fell
unconscious as Jesus fled.

Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the roadside. Ananias tried to help
but someone struck him with something hard on the right temple, knocking him out. He later learned that Arnel had hit him.

Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking outside his house. He sought
the help of a barangay tanod and they brought Rufino to the hospital.

Dr. Albert Belleza issued a Medico-Legal Certificate [2] showing that Rufino suffered two lacerated wounds on the forehead,
along the hairline area. The doctor testified that these injuries were serious and potentially fatal but Rufino chose to go home
after initial treatment.

The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense. He testified that he was on his way
home that evening when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where he supposed
the Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel several
times on the back. Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending himself, struck Rufino on
the head with it. When Ananias saw this, he charged towards Arnel and tried to stab him with a gaff. Arnel was able to avoid the
attack and hit Ananias with the same stone. Arnel then fled and hid in his sisters house. On September 4, 2000, he voluntarily
surrendered at the Tigaon Municipal Police Station.

Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night of the incident. His three
companions were all drunk. On his way home, Diomedes saw the three engaged in heated argument with Arnel.
 On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of frustrated homicide and
sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one
day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to six years,
Arnel did not qualify for probation.

Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking conviction for the lesser
crime of attempted homicide with the consequent reduction of the penalty imposed on him. The CA entirely affirmed the RTC
decision but deleted the award for lost income in the absence of evidence to support it. [3] Not satisfied, Arnel comes to this Court
on petition for review.

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

Both complied with Arnel taking the position that he should be entitled to apply for probation in case the Court metes
out a new penalty on him that makes his offense probationable.The language and spirit of the probation law warrants such a
stand. The Solicitor General, on the other hand, argues that under the Probation Law no application for probation can be
entertained once the accused has perfected his appeal from the judgment of conviction.

The Issues Presented

The case essentially presents three issues:

1. Whether or not Arnel acted in self-defense when he struck Rufino on the head with a stone;

2. Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated homicide; and

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

The Courts Rulings

One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in self-defense when he
hit Rufino back with a stone.

When the accused invokes self-defense, he bears the burden of showing that he was legally justified in killing the victim
or inflicting injury to him. The accused must establish the elements of self-defense by clear and convincing evidence. When
successful, the otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of the accused. [4]

In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the person whom the
offender killed or injured committed unlawful aggression; (2) that the offender employed means that is reasonably necessary to
prevent or repel the unlawful aggression; and (3) that the person defending himself did not act with sufficient provocation. [5]

If the victim did not commit unlawful aggression against the accused, the latter has nothing to prevent or repel and the
other two requisites of self-defense would have no basis for being appreciated. Unlawful aggression contemplates an actual,
sudden, and unexpected attack or an imminent danger of such attack. A mere threatening or intimidating attitude is not
enough. The victim must attack the accused with actual physical force or with a weapon.[6]

Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He alone testified that Jesus
and Ananias rained fist blows on him and that Rufino and Ananias tried to stab him. No one corroborated Arnels testimony that
it was Rufino who started it. Arnels only other witness, Diomedes, merely testified that he saw those involved having a heated
argument in the middle of the street. Arnel did not submit any medical certificate to prove his point that he suffered injuries in
the hands of Rufino and his companions.[7]

In contrast, the three witnessesJesus, Paciano, and Ananiastestified that Arnel was the aggressor. Although their
versions were mottled with inconsistencies, these do not detract from their core story. The witnesses were one in what Arnel did
and when and how he did it. Compared to Arnels testimony, the prosecutions version is more believable and consistent with
reality, hence deserving credence.[8]
 Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated homicide when the
wounds he inflicted on Rufino, his victim, were not fatal and could not have resulted in death as in fact it did not?

The main element of attempted or frustrated homicide is the accuseds intent to take his victims life. The prosecution has
to prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent. [9] And the intent to kill is
often inferred from, among other things, the means the offender used and the nature, location, and number of wounds he
inflicted on his victim.[10]

Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked Rufino
out. Considering the great size of his weapon, the impact it produced, and the location of the wounds that Arnel inflicted on his
victim, the Court is convinced that he intended to kill him.

The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated, homicide. In Palaganas v. People,
[11]
we ruled that when the accused intended to kill his victim, as shown by his use of a deadly weapon and the wounds he
inflicted, but the victim did not die because of timely medical assistance, the crime is frustrated murder or frustrated
homicide. If the victims wounds are not fatal, the crime is only attempted murder or attempted homicide.

Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the victims wounds. While
Dr. Belleza testified that head injuries are always very serious, [12] he could not categorically say that Rufinos wounds in this case
were fatal. Thus:

Q: Doctor, all the injuries in the head are fatal?

A: No, all traumatic injuries are potentially treated.

Q: But in the case of the victim when you treated him the wounds actually are not fatal on that very day?

A: I could not say, with the treatment we did, prevent from becoming fatal. But on that case the patient
preferred to go home at that time.

Q: The findings also indicated in the medical certificate only refers to the length of the wound not the depth
of the wound?

A: When you say lacerated wound, the entire length of the layer of scalp.

Q: So you could not find out any abrasion?

A: It is different laceration and abrasion so once the skin is broken up the label of the frontal lo[b]e, we
always call it lacerated wound, but in that kind of wound, we did not measure the depth.[13]

Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull incurred fracture or that he
bled internally as a result of the pounding of his head. The wounds were not so deep, they merely required suturing, and were
estimated to heal in seven or eight days. Dr. Belleza further testified:

Q: So, in the medical certificate the wounds will not require surgery?

A: Yes, Madam.

Q: The injuries are slight?

A: 7 to 8 days long, what we are looking is not much, we give antibiotics and antit[e]tanus the problem the
contusion that occurred in the brain.

Q: What medical intervention that you undertake?

A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.

Q: For how many days did he stay in the hospital?

 A: Head injury at least be observed within 24 hours, but some of them would rather go home and then come
back.

Q: So the patient did not stay 24 hours in the hospital?

A: No, Your Honor.

Q: Did he come back to you after 24 hours?

A: I am not sure when he came back for follow-up.[14]

Taken in its entirety, there is a dearth of medical evidence on record to support the prosecutions claim that Rufino
would have died without timely medical intervention. Thus, the Court finds Arnel liable only for attempted homicide and
entitled to the mitigating circumstance of voluntary surrender.

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

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

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

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

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

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

The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would dilute the ruling
of this Court in Francisco v. Court of Appeals[16] that the probation law requires that an accused must not have appealed his
conviction before he can avail himself of probation. But there is a huge difference between Francisco and this case.

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

The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his conviction before
he can avail himself of probation. This requirement outlaws the element of speculation on the part of the accusedto wager on the
result of his appealthat when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service
of his sentence inevitable, he now applies for probation as an escape hatch thus rendering nugatory the appellate courts
affirmance of his conviction.[17]

Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not
have a choice between appeal and probation. He was not in a position to say, By taking this appeal, I choose not to apply for
probation. The stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that would allow Arnel to
now seek probation under this Courts greatly diminished penalty will not dilute the sound ruling in Francisco. It remains that
those who will appeal from judgments of conviction, when they have the option to try for probation, forfeit their right to apply
for that privilege.

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

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

The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying
philosophy of probation is one of liberality towards the accused.Such philosophy is not served by a harsh and stringent
interpretation of the statutory provisions.[18] As Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation Law
must not be regarded as a mere privilege to be given to the accused only where it clearly appears he comes within its letter; to do
so would be to disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not
because it is a criminal law but to achieve its beneficent purpose.[19]

One of those who dissent from this decision points out that allowing Arnel to apply for probation after he appealed
from the trial courts judgment of conviction would not be consistent with the provision of Section 2 that the probation law
should be interpreted to provide an opportunity for the reformation of a penitent offender. An accused like Arnel who appeals
from a judgment convicting him, it is claimed, shows no penitence.

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

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

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

The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for probation when the
new penalty that the Court imposes on him is, unlike the one erroneously imposed by the trial court, subject to probation?

WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31, 2007 of the Court
of Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY beyond reasonable doubt of attempted homicide,
and SENTENCES him to suffer an indeterminate penalty from four months of arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum, and to pay Rufino P. Buena the amount of P20,000.00 as moral damages, without
prejudice to petitioner applying for probation within 15 days from notice that the record of the case has been remanded for
execution to the Regional Trial Court of San Jose, Camarines Sur, in Criminal Case T-2213.

SO ORDERED.
007. G.R. No. 152044. July 3, 2003

DOMINGO LAGROSA and OSIAS BAGUIN vs. THE PEOPLE OF THE PHILIPPINES and CA

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, Branch 2, denying petitioners Application for Probation, and its Order denying
petitioners Motion for Reconsideration.[2]

The undisputed facts are as follows.

On October 29, 1996, the Regional Trial Court of Tagbilaran City, Branch 2, rendered a decision in Criminal Case No. 8243,
[3]
finding petitioners Domingo Lagrosa and Osias Baguin guilty of violation of Section 68 of P.D. 705, as amended (The Revised
Forestry Code), for having in their possession forest products without the requisite permits. The trial court sentenced them to
suffer the indeterminate penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional, as
minimum, to eight (8) years of prision mayor, as maximum. Petitioners Motion for Reconsideration of the decision [4] was denied
by the trial court on November 21, 1996.[5]

Petitioners appealed their conviction to the Court of Appeals, where it was docketed as CA-G.R. CR No. 20632. [6] On March
14, 2000, the appellate court affirmed the conviction of the petitioners, with the modification as to the penalty imposed, which
was reduced to an indeterminate penalty ranging from six (6) months and one (1) day of prision correccional, as minimum, to one
(1) year, eight (8) months and twenty one (21) days of prision correccional, as maximum.[7] The decision became final and
executory on April 12, 2000.

On August 29, 2001, petitioners filed an Application for Probation with the trial court, [8] which, as mentioned at the outset,
was denied. Petitioners motion for reconsideration was likewise denied by the trial court. Hence, petitioners filed a petition for
certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 67308. [9] On January 11, 2002, the Court of Appeals
rendered the assailed decision affirming the questioned resolutions of the trial court.

Hence this petition, raising the following arguments:

1) That Section 4 of Presidential Decree No. 968, as amended by PD No. 1990, is very absurd and illogical considering
that petitioners were not given the opportunity to apply for probation when they were convicted by the Regional
Trial Court of Bohol, Branch 2, because the penalty imposed by said court is more than six (6) years and therefore
non-probationable.

That the first opportunity for herein petitioners to apply for probation was when the Court of Appeals modified the
sentence imposed by the Regional Trial Court of Bohol, Branch 2, from two (2) years, four (4) months and one (1)
day of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, to six (6) months and one
(1) day to one (1) year, eight (8) months and twenty one (21) days as maximum which is clearly probationable.

2) That the ruling of this Honorable Supreme Court in the case of Pablo Francisco versus Court of Appeals, et al., G.R. No.
108747, is not applicable to the instant case because in the said Francisco case the accused therein can apply for
probation because the penalty imposed by the lower court was already probationable but the accused instead
appealed the decision but in the case of herein petitioners they cannot apply for probation when they were
convicted because the penalty imposed by the lower court was more than six (6) years and therefore non-
probationable.

3) That the decision of the Court of Appeals herein sought to be reviewed is clearly contrary to the purpose of the
Probation Law.[10]

The law that is at the heart of this controversy is Presidential Decree No. 968, also known as the Probation Law, as amended
by P.D. 1990, the pertinent provision of which reads:

SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced
a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem
best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from
the judgment of conviction. (underscoring ours)
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation
shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal.

An order granting or denying probation shall not be appealable.

Under Section 9 (a) of the Probation Law, offenders who are sentenced to serve a maximum term of imprisonment of more
than six years are disqualified from seeking probation.

It should be noted that before P.D. 968 was amended by P.D. 1990, the accused was allowed to apply for probation even
after he had already filed an appeal, as long as he had not yet begun to serve his sentence.[11]

Petitioners contend that they should be allowed to apply for probation even if they had already appealed the decision of the
trial court. They argue that their case should be considered an exception to the general rule which excludes an accused who has
appealed his conviction 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 coverage of the Probation Law. They only became eligible for probation after the
Court of Appeals modified the judgment of the trial court and reduced the maximum term of the penalty imposed on them to
one year, eight months and twenty-one days. [12] They submit that the ruling in the case of Francisco v. CA[13] is not applicable
because in that case, the accused appealed their conviction notwithstanding the fact that the maximum term of the prison
sentence imposed on them by the trial court was less than six years. [14]

In its Comment, the Office of the Solicitor General reiterates the express provision of P.D. 968 prohibiting the grant of
probation to those who have appealed their convictions. [15] It argues that, even if the petitioners have appealed for the purpose of
reducing an incorrect penalty, this fact does not serve to remove them from the prohibition in Section 4 of P.D. 968 for the law
makes no such distinction.[16]

There is no question that petitioners appealed from the decision of the trial court. This fact alone merits the denial of
petitioners Application for Probation. Having appealed from the judgment of the trial court and having applied for probation
only after the Court of Appeals had affirmed their conviction, petitioners were clearly precluded from the benefits of probation.
[17]

However, petitioners now ask us not to apply the letter of the law, claiming that their situation should be considered an
exception to the rule. Their petition is without merit.

Petitioners repeatedly assert that their application for probation was made at the first opportunity, undoubtedly invoking
the fourth whereas clause of P.D. 1990, which reads:

WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and delay the administration of
justice, but should be availed of at the first opportunity by offenders who are willing to be reformed and rehabilitated; x x x.

To bolster this assertion, petitioners claim that what prompted them to appeal the decision of the trial court was the
erroneous penalty imposed by the trial court.[18]

Petitioners are not being very candid. In their appellants brief filed in CA-G.R. CR No. 20632, they raised the following
assignment of errors:

THAT THE LOWER COURT ERRED IN FINDING BOTH ACCUSED GUILTY OF THE OFFENSE CHARGED BECAUSE THE
EVIDENCE AGAINST THEM LACKS MORAL CERTAINTY.

II.

IF EVER ACCUSED ARE GUILTY, THE LOWER COURT ERRED IN IMPOSING THE PROPER PENALTY AS PROVIDED BY
LAW.

The fact that petitioners put the merits of their conviction in issue on appeal belies their claim that their appeal was
prompted by what was admittedly an incorrect penalty. Certainly, the protestations of petitioners connote a profession of
guiltlessness, if not complete innocence, and do not simply assail the propriety of the penalties imposed. For sure, petitioners
never manifested that they were appealing only for the purpose of correcting a wrong penalty to reduce it to within
probationable range. Hence, upon interposing an appeal, more so after asserting their innocence therein, petitioners should be
precluded from seeking probation. By perfecting their appeal, petitioners ipso facto relinquished the alternative remedy of
availing of the Probation Law, the purpose of which is simply to prevent speculation or opportunism on the part of an accused
who, although already eligible, does not at once apply for probation, but did so only after failing in his appeal. [19]

Although it has been suggested that an appeal should not bar the accused from applying for probation if the appeal is
solely to reduce the penalty to within the probationable limit may be equitable, [20] we are not yet prepared to accept this
proposition, specially given the factual circumstances of this case. Had the petitioners appeal from the decision of the trial court
raised the impropriety of the penalty imposed upon them as the sole issue, perhaps this Court would have been more
sympathetic to their plight. Unfortunately, their misrepresentation has led to their own undoing.

WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of Appeals dated January 11,
2002 in CA-G.R. No. 67308, which affirmed the Resolution of the Regional Trial Court of Tagbilaran City, Branch 2, denying
petitioners Application for Probation, and its Order denying petitioners Motion for Reconsideration, is AFFIRMED. Costs
against the petitioners.

SO ORDERED.

008. G.R. No. 138203. July 3, 2002

LILIA J. VICOY vs. PEOPLE OF THE PHILIPPINES

This is a petition under Rule 45 on pure question of law assailing the February 9, 1998 [1] and February 25, 1998[2] Orders of
the Regional Trial Court of Bohol, Branch 3, in SP. Civil Case No. 5881, dismissing petitioners special civil action for certiorari.

The present controversy stemmed from a judgment of conviction promulgated on August 24, 1995 by the Municipal Trial
Court in Cities (MTCC) of Tagbilaran, 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 violation of City Ordinance No. 365-B for peddling fish outside the Agora Public Market, and
accordingly sentences her to suffer the penalty of a fine of Fifty Pesos (P50.00) with subsidiary imprisonment in
case of insolvency and to pay the costs;

2. In Criminal Case No. 5307, the Court finds and so holds the herein accused Lilia Vicoy y Jumagdao GUILTY beyond
reasonable doubt of the crime of Resistance and Serious Disobedience To Agents Of A Person In Authority, and
accordingly sentences her to suffer the penalty of three (3) months of arresto mayor and to pay a fine of two
Hundred Pesos (P200.00) without subsidiary imprisonment in case of insolvency and to pay the costs.

SO ORDERED.[3]

On the same date, August 24, 1995, petitioner filed an application for probation. [4] On September 18, 1995, however,
petitioner filed a motion to withdraw her application for probation and simultaneously filed a notice of appeal. [5]

In an Omnibus Order[6] dated September 22, 1995, the MTCC of Tagbilaran granted petitioners withdrawal of her
application for probation but denied her notice of appeal for having been filed out of time. Petitioner filed a motion for
reconsideration of the denial of her appeal, however, the same was denied.

Hence, petitioner filed a special civil action for certiorari with the Regional Trial Court of Bohol, Branch 3, contending that
the MTCC of Tagbilaran gravely abused its discretion in denying her the right to appeal. Named respondents therein were the
Presiding Judge of MTCC of Tagbilaran, Branch 2, and the People of the Philippines, represented by the Philippine National
Police of Tagbilaran City. The parties were ordered by the court to submit their memorandum within 10 days, after which, the
case was submitted for judgment on the pleadings.[7]
 Realizing that the People should be represented by the City Prosecutors Office, the court issued an Order dated August 2,
1996, requiring the latter to enter its appearance. In the same order, petitioner was directed to furnish the City Prosecutors Office
with a copy of her memorandum and of the assailed judgment, thus:

From the reading of the petition that gave rise to this case, and of the memorandum of the petitioner, it is the considered opinion
of this Court, and so holds, that the City Prosecutor of Tagbilaran be required to enter his appearance for the State in the light of
the failure of respondent Judge Emma Enrico-Supremo to submit her reply to comment to the petition. Besides, the Court
noticed that the People of the Philippines has been impleaded as one of the respondents.

PREMISES CONSIDERED, Atty. Dionisio A. Galido, counsel for the petitioner, is hereby directed to furnish the Office of the City
Prosecutor of Tagbilaran copies of the questioned judgment and their memorandum, and for the City Prosecutor to submit
within ten (10) days from receipt thereof, his memorandum or any pleading on the matter.[8]

On February 9, 1998,[9] the Regional Trial Court rendered the assailed Order dismissing petitioners special civil action for
certiorari for failure to comply with the aforequoted August 2, 1996 Order. A motion for reconsideration of the said order of
dismissal was denied on February 25, 1999.[10]

Hence, the instant petition. The sole issue raised in this petition is whether or not the petition for certiorari was validly
dismissed by the Regional Trial Court on the ground of petitioners failure to comply with its Order dated August 2, 1996.

Section 3, Rule 17, of the Rules of Court, provides:

Section 3. Dismissal due to fault of plaintiff. - If, for no justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply
with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the courts
own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action.
This dismissal shall have the effect of an adjudication on the merits, unless otherwise declared by the court. (Emphasis supplied)

In the case at bar, the trial court categorically directed petitioner, in its August 2, 1996 Order, to furnish the City Prosecutors
Office with a copy of her memorandum and of the assailed judgment. Petitioners counsel did not comply, prompting the court
to dismiss the petition for certiorari on February 9, 1998. The fact that the City Prosecutors Office has not yet entered its
appearance is no justification to petitioners adamant and continued insistence not to comply with a lawful order of the court.
Every court has the power to enforce and compel obedience to its orders, judgments, and processes in all proceedings pending
before it.[11] The Regional Trial Courts dismissal of petitioners special civil action, therefore, was but a valid exercise of said
power.

Moreover, even assuming that the Regional Trial Court did not order the said dismissal, petitioners special civil action,
questioning the denial of her notice of appeal, would still fail. Note that petitioner filed an application for probation. Section 7,
Rule 120, of the Rules on Criminal Procedure is explicit that a judgment in a criminal case becomes final when the accused has
applied for probation. This is totally in accord with Section 4 of Presidential Decree No. 968 (Probation Law of 1976, as
amended), which in part provides that the filing of an application for probation is deemed a waiver of the right to appeal.
[12]
Thus, there was no more opportunity for petitioner to exercise her right to appeal, the judgment having become final by the
filing of an application for probation.

WHEREFORE, in view of all the foregoing, the petition is DENIED. The assailed February 9, 1998 and February 25, 1999
Orders of the Regional Trial Court of Bohol, Branch 3, in SP. Civil Case No. 5881 are AFFIRMED.

SO ORDERED.

009. G.R. No. 108747 April 6, 1995

PABLO C. FRANCISCO vs. CA AND THE HON. MAXIMO C. CONTRERAS

Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects appeals and encourages
an otherwise eligible convict to immediately admit his liability and save the state of time, effort and expenses to jettison an
appeal. The law expressly requires that an accused must not have appealed his conviction before he can avail of probation. This
outlaws the element of speculation on the part of the accused to wager on the result of his appeal that when his conviction
is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies
for probation as an "escape hatch" thus rendering nugatory the appellate court's affirmance of his conviction. Consequently,
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 within the purview of P.D. 968, as amended by P.D. 1257 and P.D. 1990?

Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he failed to control his outburst
and blurted You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo walang utak . . . . Mga anak ng
puta . . . . Magkano ba kayo . . . God damn you all.

Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5) separate Informations instituted
by five (5) of his employees, each Information charging him with gravely maligning them on four different days, i.e., from 9 to
12 April 1980.

On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found petitioner guilty of grave
oral defamation in four (4) of the five (5) cases filed against him, i.e., Crim. Cases Nos. 105206, 105207, 105209 and 105210,
sentenced him to a prison term of one (1) year and one (l) day to one (1) year and eight (8) months of prision correccional "in each
crime committed on each date of each case, as alleqed in the information(s)," ordered him to indemnify each of the offended parties,
Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00
for attorney's fees, plus costs of suit. 1 He was however acquitted in Crim. Case No. 105208 for persistent failure of the offended
party, Edgar Colindres, to appear and testify.

Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his case to the Regional Trial
Court.

On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated in his favor a mitigating
circumstance analogous to passion or obfuscation. Thus . . . (he) was angry and shouting when he uttered the defamatory
words complained of . . . . he must have been angry and worried "about some missing documents . . . as well as the letter of the
Department of Tourism advising ASPAC about its delinquent tax of P1.2 million . . . . " the said defamatory words must have
been uttered in the heat of anger which is a mitigating circumstance analogous to passion or obfuscation. 2

Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment . . . . " 3 After
he failed to interpose an appeal therefrom the decision.of the RTC became final. The case was then set for execution of judgment
by the MeTC which, as a consequence, issued a warrant of arrest. Butbefore he could be arrested petitioner filed an application
for probation which the MeTC denied "in the light of the ruling of the Supreme Court in Llamado v. Court of Appeals, G.R. No,
84850, 29 June 1989, 174 SCRA 566 . . . ." 4

Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition on the following grounds

Initially, the Court notes that the petitioner has failed to comply with the provisions of Supreme Court Circular No. 28-91
of September 4, 1991. Violation of the circular is sufficient cause for dismissal of the petition.

Secondly, the petitioner does not allege anywhere in the petition that he had asked the respondent court to reconsider its
above order; in fact, he had failed to give the court an opportunity to correct itself if it had, in fact, committed any error on
the matter. He is, however, required to move for reconsideration of the questioned order before filing a petition for certiorari.
This failure is fatal to his cause. It is a ground for dismissal of his petition.

Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary, despotic or whimsical exercise of
power in denying the petitioner's application for probation . . . .

Fourthly, the petition for probation was filed by the petitioner out of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after conviction, upon an application by
the defendant within the period of appeal, upon terms and conditions and period appropriate to each case, but expressly rules
out probation where an appeal has been taken . . . . 5

The motion for reconsideration was likewise denied.

In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in dispensing with the minor
technicalities which may militate against his petition as he now argues before us that he has not yet lost his right to avail of
probation notwithstanding his appeal from the MeTC to the RTC since "[t]he reason for his appeal was precisely to enable him
to avail himself of the benefits of the Probation Law because the original Decision of the (Metropolitan) Trial Court was such
that he would not then be entitled to probation." 6 He contends that "he appealed from the judgment of the trial court precisely
for the purpose of reducing the penalties imposed upon him by the said court to enable him to qualify for probation." 7

The central issue therefore is whether petitioneris still qualified to avail of probation even after appealing his conviction to the
RTC which affirmed the MeTC except with regard to the duration of the penalties imposed.

Petitioner is no longer eligible for probation.

First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not expressly included. Probation is not a
right of an accused, but rather an act of grace and clemency or immunity conferred by the state which may be granted by the
court to a seemingly 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 enjoyed by others
or by all. Accordingly, the grant of probation rests solely upon the discretion of the court which is to be exercised primarily for
the benefit of organized society, and only incidentally for the benefit of the accused. 10 The Probation Law should not therefore
be permitted to divest the state or its government of any of the latter's prerogatives, rights or remedies, unless the intention of
the legislature to this end is clearly expressed, and no person should benefit from the terms of the law who is not clearly within
them.

Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for probation shall be entertained
or granted if the defendant has perfected the appeal from the judgment of conviction," nor Llamado v. Court of Appeals 11 which
interprets the quoted provision, offers any ambiguity or qualification. As such, the application of the law should not be
subjected to any to suit the case of petitioner. While the proposition that an appeal should not bar the accused from applying for
probation if the appealis solely to reduce the penalty to within the probationable limit may be equitable, we are not yet prepared
to accept this interpretation under existing law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the
Court en banc in Llamado v. Court of Appeals

. . . we note at the outset that Probation Law is not a penal statute. We, however, understand petitioner's argument to be
really that any statutory language that appears to favor the accused in acriminal case should be given.a "liberal
interpretation." Courts . . . have no authority to invoke "liberal interpretation" or "the spirit of the law" where the words of
the statute themselves, andas illuminated by the history of that statute, leave no room for doubt or interpretation. We do
not believe that "the spirit ofthe law" may legitimately be invoked to set at naught words which have a clear and definite
meaning imparted to them by our procedural law. The "true legislative intent" must obviously be given effect by judges
and all others who are charged with the application and implementation of a statute. It is absolutely essential to bear in
mind, however, that the spirit of the law and the intent that is to be given effect are derived from the words actually used
by the law-maker, and not from some external, mystical or metajuridical source independent of and transcending the
words of the legislature.

The Court is not here to be understood as giving a "strict interpretation" rather than a "liberal" one to Section 4 of the
Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives which too frequently impede a
disciplined and principled search for the meaning which the law-making authority projected when it promulgated the
language which we must apply. That meaning is clearly visible in the text of Section 4, as plain and unmistakable as the
nose on a man's face. The Courtis simplyreading Section 4 as it is in fact written. There is no need for the involved process
of construction that petitioner invites us to engage in, a process made necessary only because petitioner rejects the
conclusion or meaning which shines through the words of the statute. The first duty of the judge is to take and apply a
statute as he finds it, not as he would likeit to be. Otherwise, as this Court in Yangco v. Court of First Instance warned,
 confusion and uncertainty will surely follow, making, we might add, stability and continuity in the law much more
difficult to achieve:

. . . [w]here language is plain, subtle refinements which tinge words as to give them the color of a particular judicial
theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in the law, which
has made it so difficult for the public to understand and know what the law is with respect to a given matter, is in
considerable measure the unwarranted interference by judicial tribunals with the English language as found in
statutes and contracts, cutting the words here and inserting them there, making them fit personal ideas of what the
legislature ought to have done or what parties should have agreed upon, giving them meanings which they do not
ordinarily have cutting, trimming, fitting, changing and coloring until lawyers themselves are unable to advise their
clients as to the meaning of a given statute or contract until it has been submitted to some court for its interpretation
and construction.

The point in this warning may be expected to become sharper as our people's grasp of English is steadily attenuated. 12

Therefore, that an appeal should notbar the accused from applying for probation if the appeal is taken solely to reduce the
penalty is simply contrary to the clear and express mandate of Sec, 4 of the Probation Law, as amended, which opens with a
negativeclause, "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction." In Bersabal v. Salvador, 13 we said

By its very language, the Rule is mandatory. Under the rule of statutory construction. negative words and phrases are to be
regarded as mandatory while those in the affirmative are merely directory. . . . the use of the term "shall" further
emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced.

And where the law does not distinguish the courts should 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 the probationable period. Multiple prison terms imposed against an accused found guilty of
several offenses in one decision are not, and should not be, added up. And, the sum of the multiple prison terms imposed
against an applicant should not be determinative of his eligibility for, nay his disqualification from, probation. The multiple
prison terms are distinct from each other, and if none of the terms exceeds the limit set out in the Probation Law,i.e., not more
than six (6) years, then he is entitled to probation, unless he is otherwise specifically disqualified. The number of offenses is
immaterial as long as all the penalties imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D.
968, as amended, uses the word maximum not total when it says that "[t]he benefits of this Decree shall not be extended to
those . . . . sentenced to serve a maximum term of imprisonment of more than six years." Evidently, the law does not intend to
sum up the penalties imposed but to take each penalty separately and distinctly with the others. Consequently, even if petitioner
was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as
alleged in the information(s)," and in each of the four (4) informations, he was charged with.having defamed the four (4) private
complainants on four (4) different, separate days, he was stilleligible for probation, as each prison term imposed on petitioner
was probationable.

Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those
sentenced to higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrong
doing but because of the gravity and serious consequences of the offense they might further commit. 14 The Probation Law, as
amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The
Revised Penal Code, 15 and not necessarily those who have been convicted of multiple offenses in a single proceeding who are
deemed to be less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed and the
concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are not generally
considered callous, hard core criminals, and thus may avail of probation.

To demonstrate the point, let ustake for instance one who is convicted in a single decision of, say, thirteen (13) counts of grave
oral defamation (for having defamed thirteen [13] individuals in one outburst) and sentenced to a total prison term of thirteen
(13) years, and another who has been found guilty of mutilation and sentenced to six (6) years and one (l) day of prision
mayor minimum as minimum to twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin. Obviously, the
latter offender is more perverse and is disqualified from availing of probation.

Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not have availed of the benefits of
probation. Since he could have, although he did not, his appeal now precludes him from applying for probation.

And, even if we go along with the premise of petitioner, however erroneous it may be, that the penalties imposed against him
should be summed up, still he would not have qualified under the Decision rendered by the RTC since if the "STRAIGHT
penalty of EIGHT (8) MONTHS imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total imposable penalty
would be ten (10) years and eight (8) months, which is still way beyond the limit of not more than six (6) years provided for in
the Probation Law, as amended. To illustrate: 8 months multiplied by 16 cases = 128 months; 128 months divided by 12 months
(in a year) = 10 years and 8 months, hence, following his argument, petitioner cannot still be eligible for probation as the total of
his penalties exceeds six (6) years.

The assertion that the Decision of the RTC should be multiplied only four (4) times since there are only four (4) Informations
thereby allowing petitioner to qualify for probation, instead of sixteen (16) times, is quite difficult to understand. The penalties
imposed by the MeTC cannot be any clearer "one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional, in each crime committed on each date of each case, as alleged in the information(s). "Hence, petitioner should suffer the
imposed penalties sixteen (16) times. On the other hand, the RTC affirmed, the judgment of conviction and merely reduced the
duration of each penalty imposed by the MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on
account of a mitigating circumstance for each case, count or incident of grave oral defamationThere is no valid reason therefore
why the penalties imposed by the RTC should be multiplied only four (4) times, and not sixteen (16) times, considering that the
RTC merely affirmed the MeTC as regards the culpability of petitioner in each of the sixteen (16) cases and reducing only the
duration of the penalties imposed therein. Thus

Premises considered, the judgment of conviction rendered by the trial court is AFFIRMED with modification, as follows:

WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY beyond reasonable doubt in each of the above
entitled cases and appreciating in his favor the mitigating circumstance which is analogous to passion or obfuscation, the
Court hereby sentences the said accused in each case to a straight penalty of EIGHT (8) MONTHS imprisonment, with the
accessory penalties prescribed by law; and to pay the costs. 16

Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or absolved in any of the four (4)
counts under each of the four (4) Informatfons, or that any part of thejudgment of conviction was reversed, or that any of the
cases, counts or incidents was dismissed. Otherwise, we will have to account for the twelve (12) other penalties imposed by the
MeTC. Can we? What is clear is that the judgment of conviction rendered by the was affirmed with the sole modification on the
duration of the penalties.

In fine, considering that the multiple prison terms should not be summed up but taken separately as the totality of all the
penalties is not the test, petitioner should have immediately filed an application for probation as he was already qualified after
being convicted by the MeTC, if indeed thereafter he felt humbled, was ready to unconditionally accept the verdict of the court
and admit his liability. Consequently, in appealing the Decision of the MeTC to the RTC, petitioner lost his right to probation.
For, plainly, the law considers appeal and probation mutually exclusive remedies. 17

Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the MeTC, but to assert his
innocence. Nothing more. The cold fact is that petitioner appealed his conviction to the RTC not for the sole purpose of reducing
his penalties to make him eligible for probation since he was already qualified under the MeTC Decision but rather to
insist on his innocence. The appeal record is wanting of any other purpose. Thus, in his Memorandum before the RTC, he raised
only three (3) statements of error purportedly committed by the MeTC all aimed at his acquittal: (a) in finding that the guilt of
the accused has been established because of his positive identification by the witness for the prosecution; (b) in giving full faith
and credence to the bare statements of the private complainants despite the absence of corroborating testimonies; and, (c)in not
acquitting him in all the cases," 18 Consequently, petitioner insisted that the trial court committed an error in relying on his
positive identification considering that private complainants could not have missed identifying him who was their President and
General Manager with whom they worked for a good number of years. Petitioner further argued that although the alleged
defamatory words were uttered in the presence of other persons, mostly private complainants, co-employees and clients, not one
of them was presented as a witness. Hence, according to petitioner, the trial court could not have convicted him on the basis of
the uncorroborative testimony of private complainants. 19

Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete innocence, and do not simply put in
issue the propriety of the penalties imposed. For sure, the accused never manifested that he was appealing only for the purpose of
correcting a wrong penalty to reduce it to within the probationable range. Hence, upon interposing an appeal, more so after
asserting his innocence therein, petitioner should be precluded from seeking probation. By perfecting his appeal, petitioner ipso
facto relinquished his alternative remedy of availing of the Probation Law the purpose of which is simply to prevent speculation
or opportunism on the part of an accused who although already eligible does not at once apply for probation, but doing so only
after failing in his appeal.

The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of Appeals does not necessarily
mean that his appeal to the RTC was solely to reduce his penalties. Conversely, he was afraid that the Court of Appeals would
increase his penalties, which could be worse for him. Besides, the RTC Decision 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.

Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule 117 of the Rules of
Court, 20 should have moved to quash as each of the four (4) Informations filed against him charged four (4) separate crimes of
grave oral defamation, committed on four (4) separate days. His failure to do so however may now be deemed a waiver under
Sec. 8 of the same Rule 21 and he can be validly convicted, as in the instant case, of as many crimes charged in the Information.

Fourth. The application for probation was filed way beyond the period allowed by law. This is vital way beyond the period
allowed by law and crucial. From the records it is clear that the application for probation was filed "only after a warrant for the
arrest of petitioner had been issued . . . (and) almost two months after (his) receipt of the Decision" 22 of the RTC. This is a
significant fact which militates against the instant petition. We quote with affirmance the well-written, albeit assailed, ponencia of
now Presiding Justice of the Court of Appeals Nathanael P. De Pano, Jr., on the specific issue

. . . the petition for probation was filed by the petitioner out of time. The law in point, Section 4 of P.D. 968, as amended,
provides thus:

Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted
and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal. . . .
place the defendant on probation . . . .

Going to the extreme, and assuming that an application for probation from one who had appealed the trial court's
judgment is allowed by law, the petitioner's plea for probation was filed out of time. In the petition is a clear statement that
the petitioner was up for execution of judgment before he filed his application for probation. P.D. No. 968 says that the
application for probation must be filed "within the period for perfecting an appeal;" but in this case, such period for appeal
had passed, meaning to say that the Regional Trial Court's decision had attained finality, and no appeal therefrom was
possible under the law. Even granting that an appeal from the appellate court's judgment is contemplated by P.D. 968, in
addition to the judgment rendered by the trial court, that appellate judgment had become final and was, in fact, up for
actual execution before the application for probation was attempted by the petitioner. The petitioner did not file his
application for probation before the finality of the said judgment; therefore, the petitioner's attempt at probation was filed
too late.

Our minds cannot simply rest easy on. the proposition that an application for probation may yet be granted even if it was filed
only after judgment has become final, the conviction already set for execution and a warrant of arrest issued for service of
sentence.

The argument that petitioner had to await the remand of the case to the MeTC, which necessarily must be after 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, does not allow probation after an appeal has been perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually exclusive remedies, and
petitioner appealed from his conviction by the MeTC although the imposed penalties were already probationable, and in his
appeal, he asserted only his innocence and did not even raise the issue of the propriety of the penalties imposed on him, and
finally, he filed an application for probation outside the period for perfecting an appeal granting he was otherwise eligible for
probation, the instant petition for review should be as it is hereby DENIED.

SO ORDERED.