Beruflich Dokumente
Kultur Dokumente
Notes in Document
'Crim-rev-cases-1':
Highlight: In Ingco v. Sandiganbayan 49 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 prel iminary investigation against the accused.
(Crim-rev-cases-1, p.19)
Notes in Workspace:
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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
(Crim-rev-cases-1, p.1)
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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
fi le its comment with regard to Bayotas' civil liabil ity arising from his
commission of the offense charged.
(Crim-rev-cases-1, p.1)
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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
(Crim-rev-cases-1, p.1)
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Counsel for the accused-appellant, on the other hand, opposed the view of the
Sol icitor General arguing that the death of the accused while judgment of
conviction is pending appeal extinguishes both his criminal and civil penalties.
(Crim-rev-cases-1, p.2)
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We are thus confronted with a single issue: Does death of the accused
pending appeal of his conviction extinguish his civil liabil ity?
(Crim-rev-cases-1, p.2)
Object Group
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Article 89 of the Revised Penal Code is the control ling statute. It reads, in
part: Art. 89. How criminal liability is totally extinguished. Criminal
liability is totally extinguished
(Crim-rev-cases-1, p.2)
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With reference to Castillo's criminal liabil ity, there is no question. The law is
plain. Statutory construction is unnecessary. Said liabil ity is extinguished.
(Crim-rev-cases-1, p.2)
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The civil liabil ity, 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?
(Crim-rev-cases-1, p.2)
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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.
(Crim-rev-cases-1, p.3)
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"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."
(Crim-rev-cases-1, p.4)
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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 liabil ity springs neither solely nor originally from the
crime itself but from a civil contract of purchase and sale
(Crim-rev-cases-1, p.5)
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It is, thus, evident that as jurisprudence evolved from Castillo to Torrijos, the
rule established was that the survival of the civil liabil ity 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
(Crim-rev-cases-1, p.6)
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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 (
(Crim-rev-cases-1, p.7)
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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.
(Crim-rev-cases-1, p.7)
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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.
(Crim-rev-cases-1, p.9)
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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:
(Crim-rev-cases-1, p.11)
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Applying this set of rules to the case at bench, we hold that the death of appel
lant Bayotas extinguished his criminal liability and the civil liabil ity based
solely on the act complained of, i.e., rape. Consequently, the appeal is hereby
dismissed without qualification.
(Crim-rev-cases-1, p.13)
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Object Group
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Object Group
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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.
(Crim-rev-cases-1, p.18)
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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 prevail ing 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.
(Crim-rev-cases-1, p.18)
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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.
(Crim-rev-cases-1, p.19)
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We rule and so hold that the offense has not yet prescribed. Petitioner 's fi ling
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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
(Crim-rev-cases-1, p.21)
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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
(Crim-rev-cases-1, p.21)
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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
(Crim-rev-cases-1, p.22)
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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 follow
(Crim-rev-cases-1, p.22)
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On appeal, the Court of Appeals affirmed with modification the decision of the
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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
(Crim-rev-cases-1, p.23)
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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 fi led 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. [1
(Crim-rev-cases-1, p.23)
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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
(Crim-rev-cases-1, p.24)
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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.
(Crim-rev-cases-1, p.24)
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The petitioner was indicted for simple seduction in Criminal Case No. 85-81
(Crim-rev-cases-1, p.26)
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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.
(Crim-rev-cases-1, p.26)
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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
(Crim-rev-cases-1, p.26)
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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]
(Crim-rev-cases-1, p.27)
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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.
(Crim-rev-cases-1, p.27)
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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
(Crim-rev-cases-1, p.27)
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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 jai l because such evasion presupposes escaping during the service of
the sentence consisting in deprivation of liberty
(Crim-rev-cases-1, p.29)
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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 jai l 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. [1
(Crim-rev-cases-1, p.30)
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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"
(Crim-rev-cases-1, p.31)
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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.
(Crim-rev-cases-1, p.33)
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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
(Crim-rev-cases-1, p.34)
Object Group
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located, during the counting of the votes in said voting center plunging
the room in
(Crim-rev-cases-1, p.34)
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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.
(Crim-rev-cases-1, p.36)
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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.
(Crim-rev-cases-1, p.36)
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The issue here is whether or not the penalty imposed upon the petitioner has
prescribed.
(Crim-rev-cases-1, p.37)
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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 convic
(Crim-rev-cases-1, p.37)
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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.
(Crim-rev-cases-1, p.38)
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After trial, the RTC promulgated its Decision 3 which convicted petitioner of
the crime charged and sentenced him to suffer an indeterminate penalty of
imprisonment ranging from ten (10) years ofprision mayor , as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal,
as maximum, with the accessory penalty of perpetual absolute disqualification
(Crim-rev-cases-1, p.39)
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At the outset, tracing the evolution of the present Probation Law is warranted
in order to better understand and apply the wisdom of its framers to cases
invoking its application.
(Crim-rev-cases-1, p.40)
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During the martial law period, then President Ferdinand E. Marcos issued
Presidential Decree (P.D.) No. 968 23 on July 24, 1976. Originally, P.D. No.
968 allowed the fi ling of an appl ication for probation at any time after the
defendant had been convicted and sentenced. Section 4 of which provides:
(Crim-rev-cases-1, p.41)
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Later, the fi ling of an application for probation pending appeal was sti ll
allowed when Section 4 of P.D. No. 968 was amended by P.D. No. 1257 25 on
December 1, 1977 by providing that such application may be made after the
defendant had been convicted and sentenced but before he begins to serve
his sentence. Thus: SEC. 4. Grant of Probation. - Subject to the provisions of
this Decree, the court may,after it shall have convicted and sentenced a
defendant but before he begins to serve his sentence and upon his
application, suspend the execution of said sentence and place the defendant
on probation for such period and upon such terms and conditions as it may
deem best
(Crim-rev-cases-1, p.41)
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Verily, Section 4 of the Probation Law provides that the application for
probation must be filed with the trial court within the 15-day period for
perfecting an appeal. The need to file it within such period is intended to
encourage of fenders, who are willing to be reformed and rehabilitated, to
avail themselves of probation at the first opportunity.34
(Crim-rev-cases-1, p.45)
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It was obvious then, as it is now, that the accused in Colinares should not have
been allowed the benefit of probation. As I have previously stated and insisted
upon, probation is not a right granted to a convicted offender; it is a special
privilege granted by the State to a penitent qualified offender, 39 who does not
possess the disqualifications under Section 9 of P.D. No. 968, as amended.
40 Likewise, the Probation Law is not a penal law for it to be liberally
construed to favor the accused. 41 In the American law paradigm, probat ion
is considered as an act of clemency and grace, not a matter of right.42 It is a
privilege granted by the State, not a right to which a criminal defendant is
entitled. 43
(Crim-rev-cases-1, p.46)
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On the other hand, probation should not be granted to the accused in the
following instances:
(Crim-rev-cases-1, p.48)
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1. When the accused is convicted by the trial court of a crime where the
penalty imposed is within the probationable period or a fine, and the accused fi
les a notice of appeal; and 2. When the accused fi les a notice of appeal which
puts the merits of his conviction in issue, even if there is an alternative prayer
for the correction of the penalty imposed by the trial court or for a conviction to
a lesser crime, which is necessarily included in the crime in which he was
convicted where the penalty is within the probationable period.
(Crim-rev-cases-1, p.49)
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The elements of sexual abuse are as follows: 1. The accused commits the act
of sexual intercourse or lascivious conduct. 2. The said act is performed with a
child exploited in prostitution or subjected to sexual abuse. 3. The child,
whether male or female, is below 18 years of age. 47
(Crim-rev-cases-1, p.50)
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As correctly found by the trial court, all the elements of sexual abuse under
Section 5(b), Article III of R.A. No. 7610 are present in the case at bar. First,
petitioner's lewd advances of touching the breasts and vagina of his hapless
victim constitute lascivious conduct as defined in Section 32, Article XIII of the
Implementing Rules and Regulations (IRR) of R.A. No. 7610:
(Crim-rev-cases-1, p.53)
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Based on the above disquisitions, the petitioner should be denied the benefit
of the Probation Law and that the Court should adopt the recommendations
above-stated in situations where an accused files an appeal for the sole
purpose of correcting the penalty imposed to qualify him for probation or
where he fi les an appeal specifically claiming that he should be found guilty of
a lesser offense necessarily included with the crime originally fi led with a
prescribed penalty which is probationable
(Crim-rev-cases-1, p.55)
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Object Group
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The CA ruled that the RTC should have confined itself to determining
whether or not the MTC committed grave abuse of discretion in denying
petitioners application for probation. Since no appeal or other plain,
speedy and adequate remedy in the ordinary course of law is available
against the denial of probation, a Rule 65 petition is clearly the
appropriate remedy.
(Crim-rev-cases-1, p.57)
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he had no one but himself to blame for failing to inform the MTC of his
change of address.
(Crim-rev-cases-1, p.57)
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Probation is not a right but a mere privilege, an act of grace and clemency
conferred by the State, and may be granted by the court to a deserving
defendant. Accordingly, the grant of probation rests solely upon the discretion
of the court. It is to be exercised primarily for the benefit of organized society,
and only incidentally for the benefit of the accused. 1
(Crim-rev-cases-1, p.59)
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Object Group
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Since the maximum probationable imprisonment under the law was only up to
six years, Arnel did not qualify for probation.
(Crim-rev-cases-1, p.63)
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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.
(Crim-rev-cases-1, p.64)
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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.
(Crim-rev-cases-1, p.68)
Object Group
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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
(Crim-rev-cases-1, p.68)
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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
(Crim-rev-cases-1, p.69)
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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.
(Crim-rev-cases-1, p.69)
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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.
(Crim-rev-cases-1, p.70)
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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. [1
(Crim-rev-cases-1, p.70)
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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.
(Crim-rev-cases-1, p.71)
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petitioners fi led 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 fi led a petition for
certiorari with the Court of Appeals
(Crim-rev-cases-1, p.73)
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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 appl ication for probation shall be
entertained or granted if the defendant has perfected the appeal from the
judgment of conviction
(Crim-rev-cases-1, p.74)
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Object Group
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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
(Crim-rev-cases-1, p.75)
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By perfecting their appeal, petitioners ipso facto rel inquished 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.
(Crim-rev-cases-1, p.76)
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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
(Crim-rev-cases-1, p.76)
Object Group
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In Criminal Case No. 5265, the Court finds and so holds the herein
accused Lil ia 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;
(Crim-rev-cases-1, p.77)
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In Criminal Case No. 5307, the Court finds and so holds the herein
accused Lil ia 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 cost
(Crim-rev-cases-1, p.77)
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On the same date, August 24, 1995, petitioner fi led an application for
probation. [4] On September 18, 1995, however, petitioner fi led a motion to
withdraw her application for probation and simultaneously fi led a notice of
appea
(Crim-rev-cases-1, p.77)
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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:
(Crim-rev-cases-1, p.77)
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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,
199
(Crim-rev-cases-1, p.78)
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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.
(Crim-rev-cases-1, p.78)
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Note that petitioner fi led 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 fil ing 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 fi ling of an application for probation
(Crim-rev-cases-1, p.79)
Object Group
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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
(Crim-rev-cases-1, p.80)
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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 fi led
against him, i
(Crim-rev-cases-1, p.80)
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Not satisfied with the Decision of the MeTC, and insisting on his innocence,
petitioner elevated his case to the Regional Trial Court
(Crim-rev-cases-1, p.80)
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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.
(Crim-rev-cases-1, p.80)
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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 fi led an application for probation which the MeTC denied "in the
light of the rul ing of the Supreme Court in Llamado v. Court of Appeals,
(Crim-rev-cases-1, p.81)
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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 . .
(Crim-rev-cases-1, p.81)
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Fourthly, the petition for probation was fi led 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 . . .
(Crim-rev-cases-1, p.81)
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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.
(Crim-rev-cases-1, p.82)
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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 whi le 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.
(Crim-rev-cases-1, p.84)
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And where the law does not distinguish the courts should not distinguish;
where the law does not make exception the court should not except.
(Crim-rev-cases-1, p.84)
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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.
(Crim-rev-cases-1, p.85)
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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 fi led 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 appeal ing 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. 1
(Crim-rev-cases-1, p.86)
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Fourth. The application for probation was fi led 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 fi led "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
wel l-written, albeit assailed, ponencia of now Presiding Justice of the Court of
Appeals Nathanael P. De Pano, Jr., on the specific issue
(Crim-rev-cases-1, p.88)
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In the petition is a clear statement that the petitioner was up for execution of
judgment before he fi led 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.
(Crim-rev-cases-1, p.88)
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