1. Can the government appeal from a judgment acquitting the accused after trial on the merits without violating the constitutional precept against double jeopardy?

ANSWER: NO. In People v. Velasco the government, by way of a petition for certiorari under Rule 65 of the Rules of Court, appealed the decision of Hon. Tirso D.C. Velasco acquitting accused Honorato Galvez of the charges of murder and double frustrated murder due to insufficiency of evidence, and of the charge of unauthorized carrying of firearm on the ground that the act charged was not a violation of law. This Court dismissed the petition. We ruled:

. . . Therefore, as mandated by our Constitution, statutes and cognate jurisprudence, an acquittal is final and unappealable on the ground of double jeopardy, whether it happens at the trial court level or before the Court of Appeals.

In general, the rule is that a remand to a trial court of a judgment of acquittal brought before the Supreme Court on certiorari cannot be had unless there is a finding of mistrial, as in Galman v. Sandiganbayan. . . .

Thus, the doctrine that “double jeopardy may not be invoked after trial” may apply only when the Court finds that the “criminal trial was a sham” because the prosecution representing the sovereign people in the criminal case was denied due process.

. . . Thus, “emerging American consensus on jury acquittals” notwithstanding, on solid constitutional bedrock is well engraved our own doctrine that acquittals by judges on evidentiary considerations cannot be appealed by government. The jurisprudential metes and bounds of double jeopardy having been clearly defined by both constitution and statute, the issue of the effect of an appeal of a verdict of acquittal upon a determination of the evidence on the constitutionally guaranteed right of an accused against being twice placed in jeopardy should now be finally put to rest.(PEOPLE V. TRIA-TIRONA, G.R. No. 130106. July 15, 2005]) and People v. Velasco, G.R No. 127444, 13 September 2000, 340 SCRA 207

. . .

2. It is clear in this jurisdiction that after trial on the merits, an acquittal is immediately final and cannot be appealed on the ground of double jeopardy. Is there an exception to this rule? If there is, state it.

Answer: It is clear in this jurisdiction that after trial on the merits, an acquittal is immediately final and cannot be appealed on the ground of double jeopardy. The only exception where double jeopardy cannot be invoked is where there is a finding of mistrial resulting in a denial of due process.

3. Distinguish and error of jurisdiction from an error of judgment. What is the remedy if there is an error of jurisdiction?

ANSWER: An error of judgment is one in which the court may commit in the exercise of its jurisdiction.[21] An error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari.[22] Certiorari will not be issued to cure errors by the trial court in its appreciation of the evidence of the parties, and its conclusions anchored on the said findings and its conclusions of law.[23] Since no error of jurisdiction can be attributed to public respondent in her assessment of the evidence, certiorari will not lie.

4. On January 10, 1991, State Prosecutor Esteban A. Molon, Jr. filed with the Regional Trial Court, Quezon City an information for the alleged nonpayment of deficiency corporate income tax for the year 1979 against Petronila C. Tupaz and her husband Jose J. Tupaz, Jr. as corporate officers of El Oro Engravers Corporation. The said case was raffled to Branch 105, presided over by respondent Judge Benedicto B. Ulep. However, on July 25 1993, Jose J. Tupaz, Jr. died. Then, on September 20, 1994, Petronila C. Tupaz was arraigned and she pleaded not guilty to the information. On April 16, 1996, State Prosecutor Alfredo P. Agcaoili filed a motion to withdraw information, thinking that the accused was charged for nonpayment of deficiency contractor’s tax but found that the accused was exempted from paying said tax. Consequently, Judge Ulep granted the motion and dismissed the case, as prayed for by the prosecution. On May 28, 1996, Prosecutor Agcaoili filed with the trial court a motion to reinstate information on the ground that the motion to withdraw information was made through palpable mistake and was the result of excusable neglect. Over the objection of the accused that it would place her in double jeopardy, Judge Ulep granted the motion and ordered the information reinstated.

QUESTION: Is Judge Ulep correct?

ANSWER: No, double jeopardy already attached. The Court sustained petitioner’s contention. The reinstatement of the information would expose her to double jeopardy. An accused is placed in double jeopardy if he is again tried for an offense for which he has been convicted, acquitted or in another manner in which the indictment against him was dismissed without his consent. In the instant case, there was a valid complaint filed against petitioner to which she pleaded not guilty. The court dismissed the case at the instance of the prosecution, without asking for accused-petitioner’s consent. This consent cannot be implied or presumed. Such consent must be expressed as to have no doubt as to the accused’s conformity. As petitioner’s consent was not expressly given, the dismissal of the case must be regarded as final and with prejudice to the re-filing of the case. Consequently, the trial court committed grave abuse of discretion in reinstating the information against petitioner in violation of her constitutionally protected right against double jeopardy(Tupaz v. Ulep,G.R. No. 127777. October 1, 1999]

).

5. What are the three requisites before double jeopardy can be invoked? As to the first jeopardy when does it arise?

ANSWER The three requisites before double jeopardy can be invoked are: (1) the first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that in the first, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof.^[i][17] As to the first jeopardy, it only arises (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted, convicted, or the case was dismissed.(PEOPLE V. ALBERTO, G.R. No. 132374. August 22, 2002])

6. The accused is charged with murder. He was arraigned on a valid complaint filed against him for which he pleaded not guilty. During the trial the prosecution presented three witnesses. The other two witnesses were not available, and upon the motion of the accused, on the ground that his right to speedy trial is violated, the court dismissed the case. The prosecution moved for reconsideration, considering that the two last witnesses were available and ready to testify. The Court granted the motion for reconsideration. The two witnesses testified. The prosecution did not offer any documentary exhibit and rested its case. The accused filed a demurrer (i.e. insufficiency of evidence of the prosecution). The Court denied it, and ordered that the case is submitted for decision. A decision for conviction was handed.

The accused appealed his conviction assigning as error that double jeopardy attached when the Court dismissed the case, but reconsidered the same.

Was the accused placed in double jeopardy?

ANSWER: No. The dismissal was hastily done and deprived the prosecution of its right to present its evidence. “We agree with the Solicitor General that the dismissal order made by the trial court was not valid and cannot be used as basis for a claim of double jeopardy. The said right cannot be grounded on an error of law. As held in People vs. Navarro: ^[ii][18]

The State is entitled to due process in criminal cases, that is, it must be given the opportunity to present its evidence in support of the charge. The Court has always accorded this right to the prosecution, and where the right had been denied, had promptly annulled the offending court action. We have heretofore held that a purely capricious dismissal of an information deprives the State of fair opportunity to prosecute and convict; it denies the prosecution its day in court. For this reason, it is a dismissal (in reality an acquittal) without due process, and, therefore, null and void. Such dismissal is invalid for lack of a fundamental prerequisite, that is, due process, and, consequently, will not constitute a proper basis for the claim of double jeopardy…

We agree with the OSG’s contention that the trial court exceeded its authority when it dismissed the case without giving the prosecution a right to be heard, hence there was a violation of due process. Further, the failure of the prosecution to offer its exhibits is not a ground to dismiss the case. Even without any documentary exhibits, the prosecution could still prove its case through the testimonies of its witnesses. Thus, we find that when the trial court reconsidered its order of dismissal, it merely corrected itself”(PEOPLE V. ALBERTO, G.R. No. 132374. August 22, 2002].

7.How did the Supreme Court rule on the issue of double jeopardy in the following cases:a) Gorion v. RTC b) People v. Bocar c) Portugal v. Reantaso d) Galman v. Sandiganbayan e) what do all these cases have in common?

ANSWER: In Gorion v. Regional Trial Court,^[iii][7] this Court ruled that the erroneous dismissal order of the criminal case deprived the State of a fair opportunity to present and prove its case. The said order is null and void for being violative of its right to due process. Hence, it cannot be pleaded to bar the subsequent annulment of the judgment of the dismissal order or a reopening of the case on the ground of double jeopardy.

In People v. Bocar,^[iv][8] this Court ruled that the order of dismissal given without receiving evidence for the prosecution constitutes a veritable abuse of discretion which the court cannot permit. It cannot therefore be a basis of double jeopardy.

In Portugal v. Reantaso,^[v][9] the case was dismissed on motion of the accused therein and before the prosecution could present its evidence. The records do not show that notice of hearing was given to the prosecuting officer or to petitioner and his witnesses before the case was heard and tried on the merits on the date mentioned in the notice. This Court ruled that the trial court committed grave abuse of discretion due to the failure of the trial court to give the prosecution the opportunity to be heard.

In Galman v. Sandiganbayan,^[vi][10] it was held that double jeopardy does not attach where the sham trial was but a mock trial. In that case, the authoritarian president ordered respondents therein Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure a predetermined final outcome of acquittal and total absolution of the respondents-accused therein of all the charges.

The above-mentioned cases show that the exception to the double jeopardy rule attaches only when the trial court commits grave abuse of discretion due to a violation of due process, i.e., that the prosecution was denied the opportunity to present its case or that the trial was a sham. Conversely, there cannot be a grave abuse of discretion where the trial court gave both parties the opportunity to present their case and even required them to submit memoranda from which its decision is based, as in this case. In other words, if there is no denial of due process, there can be no grave abuse of discretion that would merit the application of the exception to the double jeopardy rule. (METROPOLITAN BANK AND TRUST COMPANY, vs. HON. REGINO T. VERIDIANO II, and DOMINADOR ONG, respondents. G.R. No. 118251. June 29, 2001]

8. Does the private complainant have the legal personality to appeal a judgment of acquittal in a criminal case? If he has any, to what extent would that only be?

ANSWER: The accused has no personality to appeal a judgment of acquittal as it is only the SOLICITOR GENERAL who can do such. If the private complainant had to appeal from a judgment of acquittal it has to be limited only to the civil aspect, and nothing else, Thus the Supreme Court ratiocinated as follows:

In Palu-ay, this Court regarded the petition for annulment of judgment of acquittal as a sufficient basis to put the accused in double jeopardy. Inasmuch as the petition for certiorari in the case at bar prays for the nullification of the judgment, it likewise places the herein private respondent in double jeopardy.

It bears stressing that whenever a criminal case is prosecuted and the State is the offended party, the case must always be prosecuted under the control and guidance of the State through its government prosecutors. Accordingly, whenever there is an acquittal or dismissal of a criminal case and the private complainant intends to question such an acquittal or dismissal, the same must likewise be undertaken by the State through the Solicitor General. This, petitioner failed to comply. The present petition for certiorari before this Court was filed by petitioner Metropolitan Bank and Trust Company. It was not initiated by the Solicitor General. In fact, the Solicitor General intimated to this Court in his comment^[vii][15] that a reversal of the assailed judgment would place the private respondent in double jeopardy. Thus, this petition for certiorari must be dismissed.

We find the ruling in People v. Santiago^[viii][16] to be squarely in point wherein this Court ruled that:

“It is well-settled that in criminal cases where the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability… If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may not take such appeal. However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the accused” (Underscoring Ours). ^[ix][17]

The above pronouncement of this Court was reaffirmed in Palu-ay, to wit:

“Petitioner contends that the appellate court erred in ruling that a private complainant cannot file a petition for annulment of judgment without the Solicitor General’s approval except only as to the civil aspect of the case. He invokes the ruling in People v. Santiago [174 SCRA 143 (1989)] in which this Court sustained the right of the private complainant in a criminal case to file a petition for certiorari to set aside the judgment rendered in the criminal case on the ground that the prosecution had been deprived of due process. This Court made it clear, however, that such action may be brought by the private complainant only insofar as the civil aspect of the case is concerned:

It is well-settled that in criminal cases where the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability… If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only be the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may appeal the civil aspect despite the acquittal of the accused. (METROPOLITAN BANK AND TRUST COMPANY, vs. HON. REGINO T. VERIDIANO II, and DOMINADOR ONG, respondents. G.R. No. 118251. June 29, 2001]

9. Petitioner was charged with rape in Criminal Case No. 10770 presently pending before the RTC of Borongan, Eastern Samar, Branch 2. When he was arraigned on February 26, 1999, petitioner pleaded not guilty to the charge against him.

On March 31, 1999, the date set by the trial court for the initial hearing, the prosecution moved that the same be postponed due to the absence of the complainant and her witnesses. The hearing was reset on April 29, 1999.

On April 29, 1999, the prosecution again moved to postpone the hearing due to the absence of the complainant and her witnesses. Petitioner objected to the motion on the ground that his right to speedy trial was being violated by such postponements. The trial court granted the prosecution’s motion and reset the hearing on May 31, 1999. It also directed that the subpoenae to the complainant and her witnesses be coursed through the National Bureau of Investigation which handled the investigation of the case.

During the hearing on May 31, 1999, the prosecution requested for another postponement. Petitioner moved for at least a temporary dismissal of the case. The prosecution manifested that it would not object to a temporary dismissal. Thus, on the same date, the trial court issued an order temporarily dismissing the case.^[1][3]

On June 22, 1999, the prosecution filed a Motion for Reinstatement and/or Revival of Criminal Case No. 10770. Appended to said motion was the affidavit of private complainant that the subpoenae sent to her for the trial of the case did not reach her because in the meantime she had transferred her residence.

The trial court set the hearing on the motion for reinstatement on June 25, 1999. Petitioner opposed the motion contending that the revival or reinstatement of the case will place him in double jeopardy. On September 29, 1999, the Court issued a resolution reinstating the said case and reiterating the issuance of a warrant of arrest for petitioner.

Petitioner filed a motion for reconsideration of said resolution insisting that the reinstatement of the case will place him in double jeopardy.

On January 14, 2000, the court issued a resolution denying the motion for reconsideration of petitioner. Consequently, Criminal Case No. 10770 is still pending before the trial court.

Aggrieved, petitioner filed the instant petition on February 1, 2000. He claims that Criminal Case No. 10770 cannot be revived because the dismissal of the case on May 31, 1999 is permanent in character, having been made in consideration of his right to speedy trial.^[2][4]

QUESTION: Is the accused correct?

ANSWER: The accused is not correct. “A permanent dismissal of a criminal case may refer to the termination of the case on the merits, resulting in either the conviction or acquittal of the accused; to the dismissal of the case due to the prosecution’s failure to prosecute; or to the dismissal thereof on the ground of unreasonable delay in the proceedings, in violation of the accused’s right to speedy disposition or trial of the case against him. In contrast, a provisional dismissal of a criminal case is a dismissal without prejudice to the reinstatement thereof before the order of dismissal becomes final or to the subsequent filing of a new information for the offense^[3][8] within the periods allowed under the Revised Penal Code or the Revised Rules of Court.

In the present case, it is clear from the records that the dismissal ordered by the trial court on May 31, 1999 was a temporary dismissal of the case, and not a permanent dismissal on the ground that the right of the accused to speedy trial had been violated by the delay in the prosecution of the said case. The trial court apparently denied petitioner’s motion to have Criminal Case No. 10770 dismissed on the ground of his right to speedy trial when despite said motion made in open court on April 29, 1999, it ordered the resetting of the hearing of the case on May 31, 1999. In subsequently granting petitioner’s request for the dismissal of Criminal Case No. 10770 on May 31, 1999, the trial court expressly stated that the same was subject to reinstatement within thirty days from the date of the temporary dismissal. The trial court explained:

… The defense, however, moved for, at least a temporary dismissal of the case, to which the government prosecutor acceded provided the same is temporary. Thus, as prayed for by the defense, the court on May 31, 1999 issued an order dismissing the case temporarily subject to its reinstatement and/or revival within a period of thirty (30) days; otherwise, if the case is not revived within the aforesaid period, the case would be considered dismissed permanently.^[4][9]

Therefore, it cannot be gainsaid that the dismissal of Criminal Case No. 10770 on May 31, 1999 was provisional or temporary, without prejudice to the revival thereof within thirty days from the date of dismissal. Thus, the Court finds that the reinstatement thereof on June 25, 1999 did not place petitioner in double jeopardy.

The proscription against double jeopardy^[5][10] presupposes that an accused has been previously charged with an offense, and the case against him is terminated either by his acquittal or conviction, or dismissed in any other manner without his consent. As a general rule, the following requisites must be present for double jeopardy to attach: (1) a valid indictment, (2) before a court of competent jurisdiction, (3) the arraignment of the accused, (4) a valid plea entered by him, and (5) the acquittal or conviction of the accused, or the dismissal or termination of the case against him without his express consent. However, there are two exceptions to the foregoing rule, and double jeopardy may attach even if the dismissal of the case was with the consent of the accused: first, when there is insufficiency of evidence to support the charge against him; and second, where there has been an unreasonable delay in the proceedings, in violation of the accused’s right to speedy trial. ^[6][11]

Petitioner is not in danger of being twice put in jeopardy with the reinstatement of Criminal Case No. 10770 because as earlier stated, said case was provisionally dismissed by the trial court upon his motion. Thus, the requirement that the dismissal of the case must be without the consent of the accused is not present in this case. Neither does the case fall under any of the aforecited exceptions. The prosecution had not yet presented evidence at the time the case was dismissed on May 31, 1999. Moreover, as previously explained, said dismissal was temporary in nature, as the case was subject to reinstatement within thirty days from the date of dismissal. Hence, the Court finds no error on the part of the trial court in allowing the reinstatement of Criminal Case No. 10770.”( PABLO CONDRADA, petitioner, vs. PEOPLE OF THE PHILIPPINES AND HON. ARNULFO C. BUGTAS, Presiding Judge, Regional Trial Court of Borongan, Eastern Samar, Branch 2, respondents. [G.R. No. 141646. February 28, 2003])

10. Three criminal informations for violation of Central Bank Circular 960, as amended in relation to Scction 34 of Republic Act No. 265, were filed against Imelda Marcos before he RTC of Pasig, to which she pleaded guilty. These informations were consolidated upon motion of the prosecution with 21 other cases pending before the RTC of Manila which relate to or form part of a series of transactions devised by then President Marcos and private respondent to hide their ill- gotten wealth. The cases were reraffled and was assigned to respondent Judge’s sala. Without any corresponding motion from private respondent, but after giving the prosecution the chance to show cause why the cases should not be dismissed, respondent judge muto proprio dismissed the three cases, one of them on the ground that the subject CB Circular is an ex post facto law, and the two on the ground that the prosecution of private respondent was part of a sustained political vendetta by some people in the government aside from what he considered as a violation of private respondent’s right against double jeopardy. Their motion for reconsideration having been denied, petitioners elevated the case before the Supreme Court via petition for certiorari, where the primary issue raised is whether a judge can motu proprio initiate the dismissal and subsequently dismissed of a criminal information without any motion to that effect being filed by the accused based on the alleged violation of his right against ex post facto law and double jeopardy.

IS THE JUDGE CORRECT IN HIS DECISION TO DISMISS THE CASE ON THE GROUNDS ABOVEMENTIONED?

ANSWER: The Judge is not correct. The first jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused. Other than the Solicitor-General's allegation of pending suits in Branch 26-Manila, respondent judge has no other basis on whether private respondent had already been arraigned, much less entered a plea in those cases pending before the said Branch. Even assuming that there was already arraignment and plea with respect to those cases in Branch 26-Manila which respondent judge used as basis to quash the three informations pending in his sala, still the first jeopardy has not yet attached. Precisely, those Branch 26-Manila cases are still pending and there was as yet no judgment on the merits at the time respondent judge quashed the three informations in his sala. Private respondent was not convicted, acquitted nor the cases against her in Branch 26-Manila dismissed or otherwise terminated which definitely shows the absence of the fifth requisite for the first jeopardy to attach. Accordingly, it was wrong to say that the further prosecution of private respondent under the three informations pending in Branch 56-Manila would violate the former's right against double jeopardy.(PEOPLE V. NITAFAN, GR NO. 107964-66)

11. This case stemmed from the Information filed on March 10, 1999 with the Regional Trial Court, Branch 60, Makati City, docketed as Criminal Case No. 99-391 charging respondent Jose A. Bernas with libel on the basis of the complaint initiated by petitioner Jovencio F. Cinco.

Upon arraignment, respondent pleaded not guilty. Thereafter, trial ensued.

After the prosecution rested its case, respondent, on June 1, 2000, filed a Motion to Dismiss/Demurrer to Evidence. The trial court, in its Order dated January 22, 2001, denied the motion. Respondent twice filed a motion for reconsideration but both were denied in separate Orders dated March 22, 2001 and May 30, 2001.

Respondent then filed with the Court of Appeals a petition for certiorari, docketed as CA-G.R. SP No. 65413, alleging that the trial court, in denying his Motion to Dismiss/Demurrer to Evidence, acted with grave abuse of discretion.

On March 15, 2002, the Court of Appeals rendered its Decision^[7][1] granting respondent’s petition for certiorari and dismissing Criminal Case No. 99-391. The dispositive portion of the Decision reads:

“IN VIEW OF ALL THE FOREGOING, the instant petition is GRANTED. The Order of the court a quo dated January 22, 2001 denying the Demurrer to Evidence, as well as its Orders dated March 22, 2001 and May 30, 2001 denying, respectively, the petitioner’s Motion for Reconsideration and 2nd Motion for Reconsideration, are REVERSED and SET ASIDE, and a new one entered granting petitioner’s Motion to Dismiss dated May 31, 2000 and dismissing Criminal Case No. 99-391. No costs.

“SO ORDERED.”

Petitioner filed a motion for reconsideration but was denied by the Appellate Court in a Resolution dated August 5, 2002.

Instead of filing a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, petitioner resorted to the instant petition for certiorari under Rule 65.

Is the act of the petitioner in filing the petition for review on certiorari not violative of the right of the accused to double jeopardy?

ANSWER: Yes, the appeal violates the right of the accused to double jeopardy, It is basic that an acquittal rendered by the CA cannot be appealed. In Ong vs. People,^[8][2] this Court ruled that “a dismissal of a criminal case by the grant of a demurrer to evidence is not appealable as the accused would thereby be placed in double jeopardy.”

In the recent case of People vs. Sandiganbayan and Geronimo Z. Velasco,^[9][3] this Court held that “once the court grants the demurrer, such order amounts to an acquittal, and any further prosecution of the accused would violate the constitutional proscription on double jeopardy. This constitutes an exception to the rule that the dismissal of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double jeopardy.”(Cinco v. CA[G.R. No. 154651,February 19, 2003]People vs. Sandiganbayan and Geronimo Z. Velasco,G.R. No. 140633, February 4, 2002, citing Ong vs. People, ibid.; People vs. City Court of Silay, 74 SCRA 247 (1976); Almario vs. Court of Appeals, G.R. 127772, March 22, 2001; People vs. Bans, 239 SCRA 48, 55 (1994); People vs. Gines, 197 SCRA 481(1991); People vs. Quizada, 160 SCRA 516 (1988).

12-13: FACTS: Petitioners are the accused in Criminal Case No. 012432-L for the crime of Estafa punishable under paragraph 1, Article 316 of the Revised Penal Code before Regional Trial Court, Branch 54, Lapu-Lapu City. After the prosecution rested its case, the accused filed a motion to dismiss on the ground that the crime charged had already prescribed.

The alleged second deed of sale (Exh. C), which the prosecution believes to have constituted the crime of estafa, was allegedly executed on June 30, 1983 and duly registered with the Register of Deeds on August 1, 1983. The complaint was filed with the prosecutor on November 6, 1992 and the Information was filed on March 22, 1983. The petitioners (accused therein) that under Article 90 of the Revised Penal Code, crimes punishable by arresto mayor prescribed in five years. Here, since the case was instituted nine (9) years after the discovery of the crime, the crime has already prescribed.

The prosecution opposed the motion stressing that the prescriptive period in this case is to be determined on the basis of the fine imposable. Considering that the fine is more than six thousand pesos (P6,000.00), prescription, according to Article 90 in relation to Article 26 of the Revised Penal Code, is fifteen (15) years. Thus, the crime charged has not yet prescribed.

In an Order dated 15 March 1999, the Regional Trial Court, acting upon the motion, dismissed the case. However, upon motion for reconsideration filed by the prosecution, the trial court in an order dated 30 April 1999 set aside its previous order of dismissal and set the case for trial for the presentation of the evidence for the defense. The accused filed a motion for reconsideration of the Order dated 30 April 1999. The trial court denied the motion. Not satisfied, the accused filed a petition for certiorari under Rule 65 with the Court of Appeals.

On January 20, 2000, the Court of Appeals rendered a decision denying the petition and affirming the ruling of the trial court that prescription of the crime had not set in. Hence, the accused is now before this Court through a petition for review on certiorari under Rule 45.

The legal issues presented before this Court are the following:

1. Whether or not the crime of Estafa under Paragraph 1, Article 316 of the Revised Penal Code has already prescribed.

2. Whether or not the dismissal by the Regional Trial Court constituted double jeopardy?

ANSWER: ON THE FIRST ISSUE:

In essence, the issue of prescription of the crime hinges on the correct interpretation of Article 90 in relation to Article 26 of the Revised Penal Code. If the proper prescriptive period for the crime of Estafa under paragraph 1, Article 316 of the Revised Penal Code is five years from the discovery of the crime as argued by the petitioners, the crime has already prescribed. On the contrary, if the prescriptive period is fifteen (15) years as ruled by the trial court and affirmed by the Court of Appeals, then the crime charged has not yet prescribed.

To support their claim that the crime has prescribed, the petitioners advanced three arguments:

One, the amount of the imposable fine is still indeterminate as the basis merely of the prosecution for such determination is the allegation in the information but the determination of the fine would still depend on the evidence of the amount of damage which lies on the discretion of the judge.

Two, the classification of fine under Article 26 RPC as afflictive, correctional or light penalty is applicable only if the fine is imposed as single or as an alternative penalty. However, the same provision is silent when the fine is imposed as a compound penalty, such as in the case at bar. Petitioners submit there is no basis for applying the classification of fine as it is only true if the fine is imposed as single or alternative penalty. Article 90 RPC is not applicable since the classification of fine is the function of Article 26 RPC. Article 90 merely provides for the prescription of the crime and not classification.

Three, the highest penalty mentioned in the last paragraph of Article 90 could mean no other than the "graver of the penalties." Imprisonment is graver since it involves deprivation of one’s personal liberty in contrast with fine which may be dispensed with where the accused is insolvent except if the judgment itself provides for subsidiary imprisonment for failure to pay fine but even then said imprisonment could not exceed the limitations imposed by law.1 Petition, pp. 5-6;Rollo, pp. 12-13.

The contentions are without merit.

This Court notes that the penalty for Article 316 (2)2 Revised Penal Code, Art. 316 provides, thus:

ART. 316. Other forms of swindling. – The penalty of arresto mayor in its minimum and medium periods and fine of not less than the value of the damage caused and not more than three times such value, shall be imposed upon:

x x x

2. Any person who, knowing that real property is emcumbered, shall dispose of the same, although such encumbrance be not recorded.

x x x of the Revised Penal Code is the compound penalty of both imprisonment and fine. Corollarily, the last paragraph of Article 903 Revised Penal Code, Art. 90 last paragraph (as amended by R.A.. No. 4661 [1996]) provides, thus:

When the penalty fixed by law is compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraph of this article. of the Revised Penal Code provides the rule to be applied in compound penalties. Accordingly, in determining the prescriptive period of a crime punishable by both imprisonment and fine, whichever penalty is the higher should be the basis in computing the period of prosecution. The reason for this is that when the penalty of imprisonment and fine is imposed in the compound, as contradistinguished from a single or an alternative penalty, neither penalty is subordinate to the other. In which case, the higher penalty based on the classification under the Revised Penal Code should be the basis for computing the prescription period of the crime. Article 26 provides the classification, while article 90 indicates when such classification should be applied.

In People v. Crisostomo,4 5 SCRA 1048, 1053 (1962). we held that the Revised Penal Code contains no provision which states that a fine when imposed in conjunction with an imprisonment is subordinate to the main penalty. In conjunction with imprisonment, a fine is as much a principal penalty as the imprisonment. Neither is subordinate to the other. On the contrary, in the instant case, the fine is higher than the imprisonment because it is afflictive in view of the amount involved and, as stated heretofore, it is the basis for computation to determine the prescriptive period. We conclude, therefore, that where the Revised Penal Code provides a penalty consisting of imprisonment and fine, whichever penalty is the higher, should be the basis in computing the period of prescription.

Under Article 25 of the Revised Penal Code, the penalty of arresto mayor is a correctional penalty. Under Article 26 of the Revised Penal Code, Fine is considered an afflictive penalty if it exceeds six thousand pesos (P6,000.00). The value of the damage caused is nine thousand six hundred ninety-nine pesos) 9,695.00) which represents the consideration of the prior sale. Considering that the fine imposable is the higher penalty, it shall be the basis for computing the prescriptive period of the crime. Thus, the proper prescriptive period for the crime charges is fifteen (15) years.

The alleged Estafa was allegedly committed by the accused-petitioners on 30 June 1983. The deed of sale was recorded with the Register of Deeds on August 1, 1983. The criminal case was instituted on November 6, 1992 upon the filing of the complaint with the prosecutor.5 See Rules of Court, Section 1, last paragraph, Rule 110; In Francisco v. Court of Appeals , 122 SCRA 483, this Court has ruled to the effect that the filing of a complaint with the fiscal’s office also interrupts the period of prescription of the offenses charged. From August 1, 1983 to November 6, 1992, only nine years had elapsed. Since the case was filed within the fifteen-year prescriptive period, the crime charged has not prescribed. Hence, the Court of Appeals committed no reversible error.

ON THE SECOND ISSUE:

Petitioners argue that when the case was dismissed, the order of the trial court to revive the case upon reconsideration such action amounted to double jeopardy. In arguing this point, the petitioners rely on Section 6, Rule 117 of the Rules of Court which provides, thus:

Order sustaining the motion to quash not a bar to another prosecution; exception. An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Section 3, Subsection (f) and (h) of this rule.

The petitioners further contend that the grounds mentioned as bar to another prosecution are that: first, the criminal action or liability has been extinguished; and, second, the accused has been previously convicted or in jeopardy. Moreover, they stress that the rule on waiver to objection which are grounds of a motion to quash does not apply when prescription becomes a defense and extinguishes criminal liability.6 Citing Magat v. People, 210 SCRA 21,32 (1991). The petitioners then conclude that the dismissal of a case, even assuming arguendo, it is erroneous, constitutes an acquittal which bars any review or appeal or another jeopardy.

We are not persuaded.

The rule on double jeopardy has a settled meaning in this jurisdiction. It means that when a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense.7 Melo v. People, 85 Phil. 766, 768 (1950). The purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the danger and anxiety of a second charge against him for the same offense.8 Caes v. Intermediate Appelleate Court, 179 SCRA 54, 59-60 (1989).

It must be noted that an acquittal is different from a dismissal notwithstanding the fact that there may be instances when an order of dismissal of a criminal case amounts to an acquittal.9 In People v. Salico, 84 Phil. 722, 732 (1949). In this case We explained that the only case in which the word dismissal is commonly but not correctly used, instead of the proper term of acquittal, is when, after the prosecution has presented all its evidence, the defendant moves for the dismissal and the court dismisses the case on the ground that the evidence fails to show beyond reasonable doubt that the defendant is guilty; for is such case, the dismissal is in reality an acquittal because the case is decided on the merits. However, in the case at bar, the dismissal is not an acquittal because is was not based on the merits of the case but on the ground that the crime charged has already prescribed. Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show defendant’s guilt beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendants is not guilty of the offense charged.10 Ibid.

In the case at bar, the dismissal did not constitute a first jeopardy within the purview of the rule against double jeopardy because of two reasons: first, the dismissal was upon motion of, and, hence, with the consent of the accused; and second, the order of dismissal was based on an erroneous finding of prescription of the crime and not on the merits of the case.

It should be stressed that the Motion to Dismiss was filed by petitioners. The dismissal and/or termination of the Estafa case being with their voluntary and express consent, double jeopardy has not, therefore, attached.11 People v. Gines, 197 SCRA 481 (1991); Que v. Cosico, 177 SCRA 410 (1989); People v. Jardin, 124 SCRA 167 (1983); People v. Pilpa, 79 SCRA 81 (1977); and People v. Cuervo, 104 SCRA 312 (1981). There are only two instances when double jeopardy attaches even if the dismissal of a criminal case was with the express consent of the accused or upon his motion. These are (i) insufficiency of evidence and (ii) denial of the right to a speedy trial.12 People v. Ban, 239 SCRA 48, 55 (1994); People v. Quizada, 160 SCRA 516 (1988). None of these exceptions is obtaining in the instant case.

The cases cited by the petitioners supporting the argument that an erroneous acquittal bars any review or appeal or another jeopardy are all premised on the fact that the erroneous judgment of acquittal by the trial court was issued on the merit of the case.

The motion to dismiss filed by the petitioners was based on the ground of prescription and not on the alleged insufficiency of the evidence against them. The trial court, then, did not dwell on the merits of the case when it issued its Order dated 15 March 1999. Even the trial court in reconsidering its previous order emphasized in its Order dated 30 April 1999 that the motion to dismiss dated January 8, 1999 was filed by the accused and that the (trial) Court did-not resolve on the merits but on the alleged prescription of the instant case.

In the case at bar, the order of dismissal was not yet final and executory when the motion for reconsideration was filed by the prosecution. The doctrine of double jeopardy does not attach until the period for appeal has expired. The matter relative to the time when jeopardy attaches is largely statutory and Section 7 of Rule 20 of the Rules of Court, in express and plain language, fixes such time at the expiration of fifteen days.13 People v. Tamayo, G.R. No. L-2233, April 25, 1950. Thus, when the trial court took cognizance of that motion it still had jurisdiction to do so and the action thereon was a continuation of the case, not an appeal thereof or a new trial. In sum, there is no double jeopardy because neither the proceeding in the trial court had terminated with finality at the time when the motion for reconsideration was filed so as to give rise to a first jeopardy nor was there a second jeopardy in the form of an appeal or a new trial. But most significantly, the order of dismissal was not based on the merits of the case.

WHEREFORE, the petition is DENIED. Let this case be REMANDED to the Regional Trial Court, Branch 54, Lapu-Lapu City, for the presentation of the evidence for the defense.( G.R. No. 141638 (Spouses Escudero, et al. vs. Court of Appeals, Regional Trial Court, Branch 54, Lapu-Lapu City and People of the Philippines.)

14. On February 4, 1998, separate cases of estafa and attempted corruption of public officers were filed before the SBN by the Office of the Ombudsman (OMB) against (1) Respondent Espinosa, then provincial administrator of Masbate; (2) Emma Vasquez; and (3) Romeo Sanano. The cases were docketed as Criminal Case Nos. 24438 and 24439.

Prior to his arraignment, Espinosa filed a Motion for Reinvestigation of the cases. The SBN Fourth Division granted the Motion in an Order^[10][4] dated March 23, 1988, and directed the Office of the Special Prosecutor to evaluate the evidence against the accused.

While the cases were being reevaluated, Espinosa filed with the SBN a Motion for Leave to Travel Abroad for the period May 2-13, 1999.

On the date set for the hearing of the Motion, the SBN (Fourth Division) issued an Order resetting the hearing to April 22, 1999. It required private respondent to be “conditionally arraigned on that date”^[11][5] before it would act on his Motion to Travel.

As ordered, private respondent was arraigned, and thereafter granted his Motion to Travel. The Order of Arraignment dated April 22, 2000, stated that “upon being duly arraigned, [he] entered a plea of ‘Not Guilty’ to both Informations in Crim. Case Nos. 24438 and 24439.”^[12][6] The Court also ordered the deferment of the pretrial of the cases, pending the reinvestigation then being conducted by the Ombudsman.

On December 28, 2000, the OMB -- through the Office of the Special Prosecutor -- moved to withdraw ex parte the two cases against private respondent. The SBN granted the Motion in a Resolution dated January 9, 2001.

Thereafter, the OMB filed in the same court seven Informations for Malversation of Public Funds against Espinosa and several others. These Informations were docketed as Criminal Case Nos. 24622 to 24628 and raffled to the SBN First Division.

On January 22, 2001, Espinosa filed a Motion to Quash the Informations. He argued that double jeopardy had already attached, because (1) he had been arraigned in the previous estafa cases; and (2) the Motion to Withdraw the two earlier ones had been granted without his express consent.

Petitioner countered that the arraignment for the two previous cases was “conditional,” because it was made solely for the purpose of accommodating private respondent’s request to travel abroad while the matters were pending reinvestigation.

Question: DOES double jeopardy attach in the case at bar?

ANSWER: Yes. The right against double jeopardy is enshrined in Section 21 of Article III of the Constitution, which reads:

“No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”

This constitutionally mandated right is procedurally buttressed by Section 17 of Rule 117 of the Revised Rules of Criminal Procedure.^[13][25] To substantiate a claim for double jeopardy, the following must be demonstrated:

“x x x (1) [A] first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof.

“And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent court; (c) after arraignment; (d) [when] a valid plea [has] been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused.”^[14][26]

It has been the unwavering position of this Court that substantial rights cannot be trifled with or cast aside on the basis of mere suppositions and conjectures. The relinquishment of a constitutional right has to be laid out convincingly. Such waiver must be clear, categorical, knowing and intelligent.^[15][27]

As can be gleaned from the Memorandum of petitioner, the alleged waiver falls short of the above requirement:

“Unfortunately, the records reveal that a lawyer for respondent Espinosa was present when the April 19,1999 Order of the Fourth Division was issued in open court. Thus, said lawyer must have heard that the hearing of the motion to travel was reset to April 22, 1999 so that the movant could be conditionally arraigned.”^[16][28]

x x x x x x x x x

“x x x. As stressed in the petition, the arraignment was conditional for if it was not so, respondent Espinosa would have been deemed to have abandoned his recourse for the reevaluation of his cases before the Office of the Ombudsman.”^[17][29] (Italics supplied)

As correctly pointed out in the challenged Resolution, the dismissal of the estafa and the corruption cases was made upon petitioner’s ex parte Motion for the withdrawal of the Informations. Petitioner does not dispute the fact that private respondent was not notified of this Motion. Neither was a hearing held thereon.

On the other hand, private respondent has amply shown that he learned of the Motion only after the cases had been dismissed. It is clear that the dismissal, having been secured by petitioner without the express consent of the accused, does not amount to a waiver of the right against double jeopardy. But it does unequivocally show the fourth requisite for the proper invocation of such right.

In a nutshell, the alleged conditions attached to an arraignment must be unmistakable, express, informed and enlightened. They must be expressly stated in the Order disposing of the arraignment. Otherwise, the plea should be deemed to be simple and unconditional. PEOPLE OF THE PHILIPPINES, petitioner, vs. MARIO K. ESPINOSA, respondent. G.R. Nos. 153714-20. August 15, 2003]

15. STATE THE CONSTITUTIONAL PROVISION ON DOUBLE JEOPARDY.

Answer: The right against double jeopardy is enshrined in Section 21 of Article III of the Constitution, which reads:

“No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”

16. Under our law, what are the two kinds of acquittal in a criminal case?

Answer: Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is not the author of the act or omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act or omission.^[x][13] There being no delict, civil liability ex delicto is out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule 111 of the Rules of Court.^[xi][14] The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only.^[xii][15] This is the situation contemplated in Article 29 of the Civil Code,^[xiii][16] where the civil action for damages is “for the same act or omission.” Although the two actions have different purposes, the matters discussed in the civil case are similar to those discussed in the criminal case. However, the judgment in the criminal proceeding cannot be read in evidence in the civil action to establish any fact there determined, even though both actions involve the same act or omission.^[xiv][17] The reason for this rule is that the parties are not the same and secondarily, different rules of evidence are applicable. Hence, notwithstanding herein petitioner’s acquittal, the Court of Appeals in determining whether Article 29 applied, was not precluded from looking into the question of petitioner’s negligence or reckless imprudence. GEORGE MANANTAN, petitioner, vs. THE COURT OF APPEALS, SPOUSES MARCELINO NICOLAS and MARIA NICOLAS, respondentsG.R. No. 107125. January 29, 2001]

17. After an information has been filed and the accused had been arraigned, pleaded guilty and were convicted and after they had applied for probation, may the information be amended and the accused arraigned anew on the ground that the information was allegedly altered/tampered with?

ANSWER: No. The accused will already be placed in double jeopardy (MARCELO LASOY and FELIX BANISA, petitioners, vs. HON. MONINA A. ZENAROSA, PRESIDING JUDGE, RTC, BR. 76, QUEZON CITY, and THE PEOPLE OF THE PHILIPPINES, respondents. (G.R. No. 129472. April 12, 2005])

18. STATE SOME INSTANCES OF WARRANTLESS SEARCHES WHICH ARE VALID UNDER THE LAW?

19. STATE THE CONSTITUTIONAL PROVISION ON SEARCHES AND SEIZURES?

20. Explain the so called “speedy disposition formula”.

ANSWER: On the other hand, the case of Caballero vs. Alfonso, Jr.,^[xv][15] laid down the guidelines in determining the applicability of the “speedy disposition” formula:

“x x x ‘(S)peedy disposition of cases’ is a relative term. Just like the constitutional guarantee of ‘speedy trial’ accorded an accused in all criminal proceedings, ‘speedy disposition of cases’ is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory.

In the determination of whether or not the right to a ‘speedy trial’ has been violated, certain factors may be considered and balanced against each other. These are length of delay, reason for the delay, assertion of the right or failure to assert it, and prejudice caused by the delay. The same factors may also be considered in answering judicial inquiry whether or not a person officially charged with the administration of justice has violated the ‘speedy disposition of cases’ guarantee.” [ (FRANCISCO GUERRERO, petitioner, vs. HON. COURT OF APPEALS, (Former Special Seventh Division), REGIONAL TRIAL COURT OF MALABON, BRANCH 72, and PEOPLE OF THE PHILIPPINES, respondents. G.R. No. 107211. June 28, 1996]

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